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Raja Bahadur Visheshwara Singh & Others Vs. Commissioner of Income Tax, Biharand Orissa | The High Court held that that was the nature of the transaction. On appeal this Court held that before the Tribunal could come to the conclusion that it was an adventure in the nature of trade, it had to take into consideration the legal requirements associated with the concept of the trade or business and that such a question was a mixed question of law and fact. It was also held that where a person invests money in land intending to hold it and then sells it at a profit it is a case of capital accretion and not profit derived from an adventure in the nature of trade but if a purchase is made solely and exclusively with the intention to resell it at profit and the purchaser never had any intention to hold the property for himself there would be a strong presumption that the transaction is in the nature of trade but that was also a rebuttable presumption. The purchase in the absence of any rebutting evidence was held to fall in the latter category, i.e., adventure in the nature of trade. In the Oriental Investment case, 1958 SCR 49 : (S) AIR 1957 SC 852 ) the assessee was an investment company. It had purchased certain shares and sold them and qua those shares it claimed to be treated as an investor and not a dealer on the ground that it did not carry on any business in the purchase and sale of shares. The assessees applications for reference to the High Court were rejected on the ground that no question of law arose out of the order of the Tribunal. It was held that the question whether the assessees business amounted to dealing in shares and in properties or was merely an investment was a mixed question of law and fact and the legal effect of the facts found was a question of law and this Court ordered the case to be stated on two questions that it framed. One of the questions was similar to the first question in the present case but the second question was a wider one, i.e., whether the profits and losses arising from the sale of shares etc. could be taxed as business profits.8. The question which the High Court had to answer in the present case was a narrow one and the answer to that on the material before the Court was rightly given in the affirmative. But even if the question is taken to be wider in amplitude, on the materials produced and on the facts proved the appellant must be held to have been rightly assessed. Counsel for the appellant argued that the amounts received by him in the accounting years were in the nature of Capital accretions and therefore not assessable. In support, Counsel for the appellant relied on the following cases :- Kamakshya Narain Singh v. Commr. of Income-tax, B. and O., 70 Ind App 180 at p. 194 : (AIR 1943 PC 153 at p. 158) where Lord Wright observed that profits realised by the sale of shares may be capital if the seller is an ordinary investor changing his securities but in some instances it may be income if the seller of the shares is an investment company or an insurance company. The other cases relied upon were Californian Copper Syndicate Ltd. v. Harris, (1904) 5 Tax Cas 159, Cooper v. Stubbs, (1925) 10 Tax Cas 29 at p. 57, Leeming v. Jones, (1930) 15 Tax Cas 333 and Edwards v. Bairstow and Harrison, (1956) 36 Tax Cas 207.It is not necessary to discuss these cases because the principle applicable to such transactions is that when an owner of an ordinary investment chooses to realise it and obtains a higher price for it than he originally acquired it at, the enhanced price is not a profit assessable to income-tax but where as in the present case what is done is not merely a realisation or a change of investment but an act done in what is truly the carrying on of a business the amount recovered as appreciation will be assessable.9. In July 1948 the appellant had borrowed, though without interest, a large sum of money to the extent of about Rs. 10,00,000/-, no doubt from his brother. He started a new account calling it No. 2 Investment Account. For the assessment years under appeal shares purchased and sold were of a large magnitude ranging from Rs. 4.68 lacs to Rs. 69 thousands in what is called the first account and from Rs. 9,64,000/- or even if Port Trust Debentures are excluded Rs. 3,60,000/- to Rs. 30,000/-. The magnitude and the frequency and the ratio of sales to purchases and total holdings was evidence from which the Income-tax Appellate Tribunal could come to the conclusion as to the true nature of the activities of the appellant. The principle which is applicable to the present case is what we have said above and on the evidence which was before the Tribunal, i.e., the substantial nature of the transactions, the manner in which the books had been maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and sales and the holdings, if on this material the Tribunal came to the conclusion that there was material to support the finding that the appellant was dealing in shares as a business, it could not be interfered with by the High Court and in our opinion it rightly answered the question against the appellant in the affirmative.10. The second question is wholly unsubstantial. There is no such thing as res judicata in income-tax matters. The Appellate Tribunal has placed in a tabulated form the activities of the appellant showing the buying and selling and the magnitude of holdings and it cannot be said therefore that it was not open to the Appellate Tribunal to give the finding that it did.11. In our opinion the High Court rightly held against the appellant. | 0[ds]In the former case the assessee purchased four plots of land adjacent to the mills of which he was the Managing Agent. On various dates and about five years later sold them to the mills in which he realized about Rs. 43,000/- in excess of his purchase price. This was treated by the Income-tax authorities as purchase with a view to sell at a profit. The question referred was whether there was material for the assessment of that amount as income arising from an adventure in the nature of trade. The High Court held that that was the nature of the transaction. On appeal this Court held that before the Tribunal could come to the conclusion that it was an adventure in the nature of trade, it had to take into consideration the legal requirements associated with the concept of the trade or business and that such a question was a mixed question of law and fact. It was also held that where a person invests money in land intending to hold it and then sells it at a profit it is a case of capital accretion and not profit derived from an adventure in the nature of trade but if a purchase is made solely and exclusively with the intention to resell it at profit and the purchaser never had any intention to hold the property for himself there would be a strong presumption that the transaction is in the nature of trade but that was also a rebuttable presumption. The purchase in the absence of any rebutting evidence was held to fall in the latter category, i.e., adventure in the nature of trade. In the Oriental Investment case, 1958 SCR 49 : (S) AIR 1957 SC 852 ) the assessee was an investment company. It had purchased certain shares and sold them and qua those shares it claimed to be treated as an investor and not a dealer on the ground that it did not carry on any business in the purchase and sale of shares. The assessees applications for reference to the High Court were rejected on the ground that no question of law arose out of the order of the Tribunal. It was held that the question whether the assessees business amounted to dealing in shares and in properties or was merely an investment was a mixed question of law and fact and the legal effect of the facts found was a question of law and this Court ordered the case to be stated on two questions that it framed. One of the questions was similar to the first question in the present case but the second question was a wider one, i.e., whether the profits and losses arising from the sale of shares etc. could be taxed as business profits.In July 1948 the appellant had borrowed, though without interest, a large sum of money to the extent of about Rs. 10,00,000/-, no doubt from his brother. He started a new account calling it No. 2 Investment Account. For the assessment years under appeal shares purchased and sold were of a large magnitude ranging from Rs. 4.68 lacs to Rs. 69 thousands in what is called the first account and from Rs. 9,64,000/- or even if Port Trust Debentures are excluded Rs. 3,60,000/- to Rs. 30,000/-. The magnitude and the frequency and the ratio of sales to purchases and total holdings was evidence from which the Income-tax Appellate Tribunal could come to the conclusion as to the true nature of the activities of the appellant. The principle which is applicable to the present case is what we have said above and on the evidence which was before the Tribunal, i.e., the substantial nature of the transactions, the manner in which the books had been maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and sales and the holdings, if on this material the Tribunal came to the conclusion that there was material to support the finding that the appellant was dealing in shares as a business, it could not be interfered with by the High Court and in our opinion it rightly answered the question against the appellant in the affirmative.10. The second question is wholly unsubstantial. There is no such thing as res judicata in income-tax matters. The Appellate Tribunal has placed in a tabulated form the activities of the appellant showing the buying and selling and the magnitude of holdings and it cannot be said therefore that it was not open to the Appellate Tribunal to give the finding that it did.11. In our opinion the High Court rightly held against the appellant. | 0 | 2,726 | 827 | ### 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:
The High Court held that that was the nature of the transaction. On appeal this Court held that before the Tribunal could come to the conclusion that it was an adventure in the nature of trade, it had to take into consideration the legal requirements associated with the concept of the trade or business and that such a question was a mixed question of law and fact. It was also held that where a person invests money in land intending to hold it and then sells it at a profit it is a case of capital accretion and not profit derived from an adventure in the nature of trade but if a purchase is made solely and exclusively with the intention to resell it at profit and the purchaser never had any intention to hold the property for himself there would be a strong presumption that the transaction is in the nature of trade but that was also a rebuttable presumption. The purchase in the absence of any rebutting evidence was held to fall in the latter category, i.e., adventure in the nature of trade. In the Oriental Investment case, 1958 SCR 49 : (S) AIR 1957 SC 852 ) the assessee was an investment company. It had purchased certain shares and sold them and qua those shares it claimed to be treated as an investor and not a dealer on the ground that it did not carry on any business in the purchase and sale of shares. The assessees applications for reference to the High Court were rejected on the ground that no question of law arose out of the order of the Tribunal. It was held that the question whether the assessees business amounted to dealing in shares and in properties or was merely an investment was a mixed question of law and fact and the legal effect of the facts found was a question of law and this Court ordered the case to be stated on two questions that it framed. One of the questions was similar to the first question in the present case but the second question was a wider one, i.e., whether the profits and losses arising from the sale of shares etc. could be taxed as business profits.8. The question which the High Court had to answer in the present case was a narrow one and the answer to that on the material before the Court was rightly given in the affirmative. But even if the question is taken to be wider in amplitude, on the materials produced and on the facts proved the appellant must be held to have been rightly assessed. Counsel for the appellant argued that the amounts received by him in the accounting years were in the nature of Capital accretions and therefore not assessable. In support, Counsel for the appellant relied on the following cases :- Kamakshya Narain Singh v. Commr. of Income-tax, B. and O., 70 Ind App 180 at p. 194 : (AIR 1943 PC 153 at p. 158) where Lord Wright observed that profits realised by the sale of shares may be capital if the seller is an ordinary investor changing his securities but in some instances it may be income if the seller of the shares is an investment company or an insurance company. The other cases relied upon were Californian Copper Syndicate Ltd. v. Harris, (1904) 5 Tax Cas 159, Cooper v. Stubbs, (1925) 10 Tax Cas 29 at p. 57, Leeming v. Jones, (1930) 15 Tax Cas 333 and Edwards v. Bairstow and Harrison, (1956) 36 Tax Cas 207.It is not necessary to discuss these cases because the principle applicable to such transactions is that when an owner of an ordinary investment chooses to realise it and obtains a higher price for it than he originally acquired it at, the enhanced price is not a profit assessable to income-tax but where as in the present case what is done is not merely a realisation or a change of investment but an act done in what is truly the carrying on of a business the amount recovered as appreciation will be assessable.9. In July 1948 the appellant had borrowed, though without interest, a large sum of money to the extent of about Rs. 10,00,000/-, no doubt from his brother. He started a new account calling it No. 2 Investment Account. For the assessment years under appeal shares purchased and sold were of a large magnitude ranging from Rs. 4.68 lacs to Rs. 69 thousands in what is called the first account and from Rs. 9,64,000/- or even if Port Trust Debentures are excluded Rs. 3,60,000/- to Rs. 30,000/-. The magnitude and the frequency and the ratio of sales to purchases and total holdings was evidence from which the Income-tax Appellate Tribunal could come to the conclusion as to the true nature of the activities of the appellant. The principle which is applicable to the present case is what we have said above and on the evidence which was before the Tribunal, i.e., the substantial nature of the transactions, the manner in which the books had been maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and sales and the holdings, if on this material the Tribunal came to the conclusion that there was material to support the finding that the appellant was dealing in shares as a business, it could not be interfered with by the High Court and in our opinion it rightly answered the question against the appellant in the affirmative.10. The second question is wholly unsubstantial. There is no such thing as res judicata in income-tax matters. The Appellate Tribunal has placed in a tabulated form the activities of the appellant showing the buying and selling and the magnitude of holdings and it cannot be said therefore that it was not open to the Appellate Tribunal to give the finding that it did.11. In our opinion the High Court rightly held against the appellant.
### Response:
0
### Explanation:
In the former case the assessee purchased four plots of land adjacent to the mills of which he was the Managing Agent. On various dates and about five years later sold them to the mills in which he realized about Rs. 43,000/- in excess of his purchase price. This was treated by the Income-tax authorities as purchase with a view to sell at a profit. The question referred was whether there was material for the assessment of that amount as income arising from an adventure in the nature of trade. The High Court held that that was the nature of the transaction. On appeal this Court held that before the Tribunal could come to the conclusion that it was an adventure in the nature of trade, it had to take into consideration the legal requirements associated with the concept of the trade or business and that such a question was a mixed question of law and fact. It was also held that where a person invests money in land intending to hold it and then sells it at a profit it is a case of capital accretion and not profit derived from an adventure in the nature of trade but if a purchase is made solely and exclusively with the intention to resell it at profit and the purchaser never had any intention to hold the property for himself there would be a strong presumption that the transaction is in the nature of trade but that was also a rebuttable presumption. The purchase in the absence of any rebutting evidence was held to fall in the latter category, i.e., adventure in the nature of trade. In the Oriental Investment case, 1958 SCR 49 : (S) AIR 1957 SC 852 ) the assessee was an investment company. It had purchased certain shares and sold them and qua those shares it claimed to be treated as an investor and not a dealer on the ground that it did not carry on any business in the purchase and sale of shares. The assessees applications for reference to the High Court were rejected on the ground that no question of law arose out of the order of the Tribunal. It was held that the question whether the assessees business amounted to dealing in shares and in properties or was merely an investment was a mixed question of law and fact and the legal effect of the facts found was a question of law and this Court ordered the case to be stated on two questions that it framed. One of the questions was similar to the first question in the present case but the second question was a wider one, i.e., whether the profits and losses arising from the sale of shares etc. could be taxed as business profits.In July 1948 the appellant had borrowed, though without interest, a large sum of money to the extent of about Rs. 10,00,000/-, no doubt from his brother. He started a new account calling it No. 2 Investment Account. For the assessment years under appeal shares purchased and sold were of a large magnitude ranging from Rs. 4.68 lacs to Rs. 69 thousands in what is called the first account and from Rs. 9,64,000/- or even if Port Trust Debentures are excluded Rs. 3,60,000/- to Rs. 30,000/-. The magnitude and the frequency and the ratio of sales to purchases and total holdings was evidence from which the Income-tax Appellate Tribunal could come to the conclusion as to the true nature of the activities of the appellant. The principle which is applicable to the present case is what we have said above and on the evidence which was before the Tribunal, i.e., the substantial nature of the transactions, the manner in which the books had been maintained, the magnitude of the shares purchased and sold and the ratio between the purchases and sales and the holdings, if on this material the Tribunal came to the conclusion that there was material to support the finding that the appellant was dealing in shares as a business, it could not be interfered with by the High Court and in our opinion it rightly answered the question against the appellant in the affirmative.10. The second question is wholly unsubstantial. There is no such thing as res judicata in income-tax matters. The Appellate Tribunal has placed in a tabulated form the activities of the appellant showing the buying and selling and the magnitude of holdings and it cannot be said therefore that it was not open to the Appellate Tribunal to give the finding that it did.11. In our opinion the High Court rightly held against the appellant.
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A. Aruputham Vs. A. V. Yagappa By Mother and Guardian Elizabeth Mary Ammal | GROVER, J. 1. This is an appeal by certificate from a judgment of the Madras High Court involving the construction of a will executed on January 11, 1933, by Yagappa Nadar. The following short pedigree table will be of assistance in understanding the facts Yagappa Nadar (death March 16, 1938) | | | A. Y. Arulanandaswami Nadar A. Y. S. Parisutha Nadar | | | Y. A. Arogyaswamy Nadar A. Aruputham (death July 13, 1961) (Plaintiff-appellant) | Yagappa (minor) (Defendant) In his will Yagappa set apart certain properties for charities. The properties so set apart the contained in three Schedules A, B and C attached to the will. The income from these properties was to be respectively used for the purpose of charities specified in Schedules D, E and F. The testator made provision for the management of the three sets of properties. We are concerned, in the present appeal, with properties mentioned in Schedule A. The will was in the Tamil language and the relevant portion has been translated by the learned judges of the High Court who knew that language as follows : "My elder son and after him the seniormost male member amongst the heirs in his line from generation to generation shall manage the "A" Schedule properties without subjecting them to any alienation and perform the charities properly." The provision for the management of "B" Schedule properties was in identical terms with this difference that instead of the elder son Arulanandaswami Nadar the younger son Parisutha Nadar was to be the trustee. The "C" Schedule properties were entrusted to the management of the testators foster-son Gnanaprakasa and the devolution of trusteeship was in slightly different manner. 2. The testator died on March 16, 1938. Arulanandaswami his eldest son died on April 20, 1954, leaving behind him two sons Arogyaswamy and Aruputham. In accordance with the terms of the will Arogyaswamy succeeded to the management of "A" Schedule properties. He died in 1961 leaving a son Yagappa who is a minor. Aruputham the brother of Arogyaswamy maintained that under the terms of the will he was entitled to trusteeship of the suit properties after the death of Arogyaswamy and not Yagappa minor. The result of this dispute was that the appellant filed a suit in August, 1961 against the respondent for a declaration that he was the trustee entitled to possession and management of the suit properties and that the administration of the charities, etc., was to be done by him. The respondent contested the suit which was dismissed by the Trial Court. The decree of the Trial Court was affirmed by the High Court. 3. The decision of the case hinges on the correct translation of the portion previously extracted, the will being in Tamil language. The learned Trial Judge was familiar with the language as also the learned Judge of the High Court concurred in holding that according to the correct translation the testator provided that his elder son Arulanandaswamy and after him the seniormost made member amongst the heirs in his line from generation to generation shall manage the "A" Schedule properties. The suggestion which was made in the courts below and before us that according to the correct translation it would be the appellant who would be entitled to be the trustee of A Schedule properties cannot possibly be accepted. As stated before the Trial Court and the learned Judges of the High Court were agreed that on a correct rendering of the relevant portion of the will into English the appellants claim could not be sustained. The appellant cannot ask us to differ from that view without having moved for a translation being made here of the relevant portion of the will if it was sought to be established that the translation before the High Court was not correct. The High Court has given other additional reasons for coming to the conclusion at which it arrived. Dealing with the contention urged on behalf of the appellant that the will prescribed a special or peculiar rule of succession whereby the rule of primogeniture would apply only to a limited extent and the office would devolve on the seniormost among the existing descendants of Arulanandaswamy at the time when the office fell vacant, the High Court observed "if this contention were to be accepted, it would mean that the trusteeship would not be successive but ambulatory, in the sense of going up and down the genealogical tree of the family. There is no warrant for this view in the document." The High Court further pointed out that the peculiar rule of devolution contended for by the appellant was generally unknown in this country. It was said that such a rule obtained amongst the members of the royal family of Cochin. But as the testator was a Roman Catholic Christian the High Court considered it more probable that his intention was to prescribe the rule of lineal primogeniture for the trusteeship rather than the complicated rule which the appellant contended for and which would become more and more difficult to apply with the passing of generations. According to the High Court the present case was one of hereditary trusteeship under the law by which succession could be traced only to the last holder and not to the document. | 0[ds]3. The decision of the case hinges on the correct translation of the portion previously extracted, the will being in Tamil language. The learned Trial Judge was familiar with the language as also the learned Judge of the High Court concurred in holding that according to the correct translation the testator provided that his elder son Arulanandaswamy and after him the seniormost made member amongst the heirs in his line from generation to generation shall manage the "A" Schedule properties.The suggestion which was made in the courts below and before us that according to the correct translation it would be the appellant who would be entitled to be the trustee of A Schedule propertiescannot possibly be accepted. As stated before the Trial Court and the learned Judges of the High Court were agreed that on a correct rendering of the relevant portion of the will into English the appellants claim could not be sustained. The appellant cannot ask us to differ from that view without having moved for a translation being made here of the relevant portion of the will if it was sought to be established that the translation before the High Court was not correct. The High Court has given other additional reasons for coming to the conclusion at which it arrived. Dealing with the contention urged on behalf of the appellant that the will prescribed a special or peculiar rule of succession whereby the rule of primogeniture would apply only to a limited extent and the office would devolve on the seniormost among the existing descendants of Arulanandaswamy at the time when the office fell vacant, the High Court observed "if this contention were to be accepted, it would mean that the trusteeship would not be successive but ambulatory, in the sense of going up and down the genealogical tree of the family. There is no warrant for this view in the document." The High Court further pointed out that the peculiar rule of devolution contended for by the appellant was generally unknown in this country. It was said that such a rule obtained amongst the members of the royal family of Cochin. But as the testator was a Roman Catholic Christian the High Court considered it more probable that his intention was to prescribe the rule of lineal primogeniture for the trusteeship rather than the complicated rule which the appellant contended for and which would become more and more difficult to apply with the passing of generations. According to the High Court the present case was one of hereditary trusteeship under the law by which succession could be traced only to the last holder and not to the document. | 0 | 961 | 468 | ### 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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GROVER, J. 1. This is an appeal by certificate from a judgment of the Madras High Court involving the construction of a will executed on January 11, 1933, by Yagappa Nadar. The following short pedigree table will be of assistance in understanding the facts Yagappa Nadar (death March 16, 1938) | | | A. Y. Arulanandaswami Nadar A. Y. S. Parisutha Nadar | | | Y. A. Arogyaswamy Nadar A. Aruputham (death July 13, 1961) (Plaintiff-appellant) | Yagappa (minor) (Defendant) In his will Yagappa set apart certain properties for charities. The properties so set apart the contained in three Schedules A, B and C attached to the will. The income from these properties was to be respectively used for the purpose of charities specified in Schedules D, E and F. The testator made provision for the management of the three sets of properties. We are concerned, in the present appeal, with properties mentioned in Schedule A. The will was in the Tamil language and the relevant portion has been translated by the learned judges of the High Court who knew that language as follows : "My elder son and after him the seniormost male member amongst the heirs in his line from generation to generation shall manage the "A" Schedule properties without subjecting them to any alienation and perform the charities properly." The provision for the management of "B" Schedule properties was in identical terms with this difference that instead of the elder son Arulanandaswami Nadar the younger son Parisutha Nadar was to be the trustee. The "C" Schedule properties were entrusted to the management of the testators foster-son Gnanaprakasa and the devolution of trusteeship was in slightly different manner. 2. The testator died on March 16, 1938. Arulanandaswami his eldest son died on April 20, 1954, leaving behind him two sons Arogyaswamy and Aruputham. In accordance with the terms of the will Arogyaswamy succeeded to the management of "A" Schedule properties. He died in 1961 leaving a son Yagappa who is a minor. Aruputham the brother of Arogyaswamy maintained that under the terms of the will he was entitled to trusteeship of the suit properties after the death of Arogyaswamy and not Yagappa minor. The result of this dispute was that the appellant filed a suit in August, 1961 against the respondent for a declaration that he was the trustee entitled to possession and management of the suit properties and that the administration of the charities, etc., was to be done by him. The respondent contested the suit which was dismissed by the Trial Court. The decree of the Trial Court was affirmed by the High Court. 3. The decision of the case hinges on the correct translation of the portion previously extracted, the will being in Tamil language. The learned Trial Judge was familiar with the language as also the learned Judge of the High Court concurred in holding that according to the correct translation the testator provided that his elder son Arulanandaswamy and after him the seniormost made member amongst the heirs in his line from generation to generation shall manage the "A" Schedule properties. The suggestion which was made in the courts below and before us that according to the correct translation it would be the appellant who would be entitled to be the trustee of A Schedule properties cannot possibly be accepted. As stated before the Trial Court and the learned Judges of the High Court were agreed that on a correct rendering of the relevant portion of the will into English the appellants claim could not be sustained. The appellant cannot ask us to differ from that view without having moved for a translation being made here of the relevant portion of the will if it was sought to be established that the translation before the High Court was not correct. The High Court has given other additional reasons for coming to the conclusion at which it arrived. Dealing with the contention urged on behalf of the appellant that the will prescribed a special or peculiar rule of succession whereby the rule of primogeniture would apply only to a limited extent and the office would devolve on the seniormost among the existing descendants of Arulanandaswamy at the time when the office fell vacant, the High Court observed "if this contention were to be accepted, it would mean that the trusteeship would not be successive but ambulatory, in the sense of going up and down the genealogical tree of the family. There is no warrant for this view in the document." The High Court further pointed out that the peculiar rule of devolution contended for by the appellant was generally unknown in this country. It was said that such a rule obtained amongst the members of the royal family of Cochin. But as the testator was a Roman Catholic Christian the High Court considered it more probable that his intention was to prescribe the rule of lineal primogeniture for the trusteeship rather than the complicated rule which the appellant contended for and which would become more and more difficult to apply with the passing of generations. According to the High Court the present case was one of hereditary trusteeship under the law by which succession could be traced only to the last holder and not to the document.
### Response:
0
### Explanation:
3. The decision of the case hinges on the correct translation of the portion previously extracted, the will being in Tamil language. The learned Trial Judge was familiar with the language as also the learned Judge of the High Court concurred in holding that according to the correct translation the testator provided that his elder son Arulanandaswamy and after him the seniormost made member amongst the heirs in his line from generation to generation shall manage the "A" Schedule properties.The suggestion which was made in the courts below and before us that according to the correct translation it would be the appellant who would be entitled to be the trustee of A Schedule propertiescannot possibly be accepted. As stated before the Trial Court and the learned Judges of the High Court were agreed that on a correct rendering of the relevant portion of the will into English the appellants claim could not be sustained. The appellant cannot ask us to differ from that view without having moved for a translation being made here of the relevant portion of the will if it was sought to be established that the translation before the High Court was not correct. The High Court has given other additional reasons for coming to the conclusion at which it arrived. Dealing with the contention urged on behalf of the appellant that the will prescribed a special or peculiar rule of succession whereby the rule of primogeniture would apply only to a limited extent and the office would devolve on the seniormost among the existing descendants of Arulanandaswamy at the time when the office fell vacant, the High Court observed "if this contention were to be accepted, it would mean that the trusteeship would not be successive but ambulatory, in the sense of going up and down the genealogical tree of the family. There is no warrant for this view in the document." The High Court further pointed out that the peculiar rule of devolution contended for by the appellant was generally unknown in this country. It was said that such a rule obtained amongst the members of the royal family of Cochin. But as the testator was a Roman Catholic Christian the High Court considered it more probable that his intention was to prescribe the rule of lineal primogeniture for the trusteeship rather than the complicated rule which the appellant contended for and which would become more and more difficult to apply with the passing of generations. According to the High Court the present case was one of hereditary trusteeship under the law by which succession could be traced only to the last holder and not to the document.
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R.S. Seth Shanti Sarup Vs. Union Of India & Ors | the Act, nor was there any notification to that effect published by the Government. The third and the most material objection raised by the learned counsel is that the powers of control exercisable under the sub-section cannot extend to dispossessing the owners from the undertaking and vesting the same in the authorised controller giving him unfettered discretion to dispose of and transfer the assets. It is argued by the learned counsel that once it is held that S. 3(f), Industrial Disputes Act does not contemplate an order of this description S. 3B, which was introduced by the amending Act of 1950, could not improve the position and be of any assistance to the respondents.8. Coming now to S. 3(4), Essential Supplies Act under which the order of the Central Government is passed, the language used is as follows : The Central Government, so far as it appears to it to be necessary for maintaining or increasing the production and supply of an essential commodity, may by order authorise any person (hereinafter referred to as an authorised controller) to exercise, with respect to the whole or any part of any such undertaking engaged in the production and supply of the commodity as may be specified in the order, such functions of control as may be provided by the order and so long as an order made under sub-section is in force with respect to any undertaking or part thereof. (a) the authorised controlling shall exercise his functions in accordance with any instruction given to him by the Central Government, so however that he shall not have any power to give any direction inconsistent with the provisions of any Act or other instrument determining the functions of the undertaken except in so far as may be specifically provided by the order; and (b) the undertaking or part shall be carried on in accordance with any directions given by the authorised controller in accordance with the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions." 9. Here again what the Central Government is empowered to do is to authorise any person to exercise, with respect to any undertaking engaged in the production and supply of essential commodity such functions of control as may be provided by the order and which are necessary for maintaining or increasing the production and supply of the commodity. The exercise of control, it is said connotes the issuing of directions under which the management is to do or refrain from doing something. It cannot under any circumstance amount to divesting the management or the owners of the property and, taking it over from them. As the mills were already closed and were not functioning at all, strictly speaking no. question of exercising control of maintaining or increasing supplies of any essential commodity could possibly arise. 10. These arguments of the learned counsel appear to us to be prima facie well founded and we are relieved from the task of examining them in detail as the learned Attorney-General appearing for the Central Government has fairly conceded that the impugned orders do not come within the purview of and are not warranted by the provisions of the Acts, under which they purport to have been passed. He has, therefore, made no. attempt to support the orders or the acts of possession exercised by the Government or their agents in pursuance thereof. The only point taken by him is a technical one and his contention is that even though the orders are invalid the petitioner cannot come before this Court under Art. 32 of the Constitution inasmuch as there was no. fundamental right in existence when the first order of the U. P. Government was passed in July 1949 and no. fresh act of dispossession has taken place since the Constitution came into force. We do not think that there is any substance in this contention. In the first place, the order against which this petition is primarily directed is the order of the Central Government passed in October 1952 and whether or not the earlier order of the U. P. Government was formally withdrawn, it is this later order upon which the respondent 3 bases his right to retain possession of the properties. The order of the Central Government must therefore, be deemed to have deprived the petitioner of his property within the meaning of Art. 31 of the Constitution as construed by this Court. As has been said already, the U. P. Government made it clear before the Allahabad High Court in connection with the hearing of the writ petition that they were not asserting any rights of their own under the Industrial Disputes Act as soon as the Central Government took over the undertaking under the provisions of the Essential Supplies Act. But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the Constitution. We have no. hesitation therefore in holding that the petitioner is quite within his rights in making this application under Art. 32 of the Constitution. 11. The result is that in our opinion the order of the Central Government dated 31-10-l952, as well as the earlier order passed by the U. P. Government on 21-7-1949, should be set aside and quashed. The respondents are certainly bound to restore the properties taken possession of by them under these orders to the petitioner and his co-partners. A difficulty, however, arises in this connection by reason of the fact that this petition is not on behalf of all the partners, nor is there any joint prayer by all of them claiming delivery of possession. | 1[ds]10. These arguments of the learned counsel appear to us to be prima facie well founded and we are relieved from the task of examining them in detail as the learnedl appearing for the Central Government has fairly conceded that the impugned orders do not come within the purview of and are not warranted by the provisions of the Acts, under which they purport to have been passedHe has, therefore, made no. attempt to support the orders or the acts of possession exercised by the Government or their agents in pursuance thereof. The only point taken by him is a technical one and his contention is that even though the orders are invalid the petitioner cannot come before this Court under Art. 32 of the Constitution inasmuch as there was no. fundamental right in existence when the first order of the U. P. Government was passed in July 1949 and no. fresh act of dispossession has taken place since the Constitution came into forceWe do not think that there is any substance in this contention. In the first place, the order against which this petition is primarily directed is the order of the Central Government passed in October 1952 and whether or not the earlier order of the U. P. Government was formally withdrawn, it is this later order upon which the respondent 3 bases his right to retain possession of the propertiesThe order of the Central Government must therefore, be deemed to have deprived the petitioner of his property within the meaning of Art. 31 of the Constitution as construed by this Court. As has been said already, the U. P. Government made it clear before the Allahabad High Court in connection with the hearing of the writ petition that they were not asserting any rights of their own under the Industrial Disputes Act as soon as the Central Government took over the undertaking under the provisions of the Essential Supplies ActBut even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the ConstitutionWe have no. hesitation therefore in holding that the petitioner is quite within his rights in making this application under Art. 32 of the Constitution11. The result is that in our opinion the order of the Central Government dated, as well as the earlier order passed by the U. P. Government on, should be set aside and quashed. The respondents are certainly bound to restore the properties taken possession of by them under these orders to the petitioner and his. A difficulty, however, arises in this connection by reason of the fact that this petition is not on behalf of all the partners, nor is there any joint prayer by all of them claiming delivery of possession. | 1 | 3,166 | 544 | ### Instruction:
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the Act, nor was there any notification to that effect published by the Government. The third and the most material objection raised by the learned counsel is that the powers of control exercisable under the sub-section cannot extend to dispossessing the owners from the undertaking and vesting the same in the authorised controller giving him unfettered discretion to dispose of and transfer the assets. It is argued by the learned counsel that once it is held that S. 3(f), Industrial Disputes Act does not contemplate an order of this description S. 3B, which was introduced by the amending Act of 1950, could not improve the position and be of any assistance to the respondents.8. Coming now to S. 3(4), Essential Supplies Act under which the order of the Central Government is passed, the language used is as follows : The Central Government, so far as it appears to it to be necessary for maintaining or increasing the production and supply of an essential commodity, may by order authorise any person (hereinafter referred to as an authorised controller) to exercise, with respect to the whole or any part of any such undertaking engaged in the production and supply of the commodity as may be specified in the order, such functions of control as may be provided by the order and so long as an order made under sub-section is in force with respect to any undertaking or part thereof. (a) the authorised controlling shall exercise his functions in accordance with any instruction given to him by the Central Government, so however that he shall not have any power to give any direction inconsistent with the provisions of any Act or other instrument determining the functions of the undertaken except in so far as may be specifically provided by the order; and (b) the undertaking or part shall be carried on in accordance with any directions given by the authorised controller in accordance with the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions." 9. Here again what the Central Government is empowered to do is to authorise any person to exercise, with respect to any undertaking engaged in the production and supply of essential commodity such functions of control as may be provided by the order and which are necessary for maintaining or increasing the production and supply of the commodity. The exercise of control, it is said connotes the issuing of directions under which the management is to do or refrain from doing something. It cannot under any circumstance amount to divesting the management or the owners of the property and, taking it over from them. As the mills were already closed and were not functioning at all, strictly speaking no. question of exercising control of maintaining or increasing supplies of any essential commodity could possibly arise. 10. These arguments of the learned counsel appear to us to be prima facie well founded and we are relieved from the task of examining them in detail as the learned Attorney-General appearing for the Central Government has fairly conceded that the impugned orders do not come within the purview of and are not warranted by the provisions of the Acts, under which they purport to have been passed. He has, therefore, made no. attempt to support the orders or the acts of possession exercised by the Government or their agents in pursuance thereof. The only point taken by him is a technical one and his contention is that even though the orders are invalid the petitioner cannot come before this Court under Art. 32 of the Constitution inasmuch as there was no. fundamental right in existence when the first order of the U. P. Government was passed in July 1949 and no. fresh act of dispossession has taken place since the Constitution came into force. We do not think that there is any substance in this contention. In the first place, the order against which this petition is primarily directed is the order of the Central Government passed in October 1952 and whether or not the earlier order of the U. P. Government was formally withdrawn, it is this later order upon which the respondent 3 bases his right to retain possession of the properties. The order of the Central Government must therefore, be deemed to have deprived the petitioner of his property within the meaning of Art. 31 of the Constitution as construed by this Court. As has been said already, the U. P. Government made it clear before the Allahabad High Court in connection with the hearing of the writ petition that they were not asserting any rights of their own under the Industrial Disputes Act as soon as the Central Government took over the undertaking under the provisions of the Essential Supplies Act. But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the Constitution. We have no. hesitation therefore in holding that the petitioner is quite within his rights in making this application under Art. 32 of the Constitution. 11. The result is that in our opinion the order of the Central Government dated 31-10-l952, as well as the earlier order passed by the U. P. Government on 21-7-1949, should be set aside and quashed. The respondents are certainly bound to restore the properties taken possession of by them under these orders to the petitioner and his co-partners. A difficulty, however, arises in this connection by reason of the fact that this petition is not on behalf of all the partners, nor is there any joint prayer by all of them claiming delivery of possession.
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10. These arguments of the learned counsel appear to us to be prima facie well founded and we are relieved from the task of examining them in detail as the learnedl appearing for the Central Government has fairly conceded that the impugned orders do not come within the purview of and are not warranted by the provisions of the Acts, under which they purport to have been passedHe has, therefore, made no. attempt to support the orders or the acts of possession exercised by the Government or their agents in pursuance thereof. The only point taken by him is a technical one and his contention is that even though the orders are invalid the petitioner cannot come before this Court under Art. 32 of the Constitution inasmuch as there was no. fundamental right in existence when the first order of the U. P. Government was passed in July 1949 and no. fresh act of dispossession has taken place since the Constitution came into forceWe do not think that there is any substance in this contention. In the first place, the order against which this petition is primarily directed is the order of the Central Government passed in October 1952 and whether or not the earlier order of the U. P. Government was formally withdrawn, it is this later order upon which the respondent 3 bases his right to retain possession of the propertiesThe order of the Central Government must therefore, be deemed to have deprived the petitioner of his property within the meaning of Art. 31 of the Constitution as construed by this Court. As has been said already, the U. P. Government made it clear before the Allahabad High Court in connection with the hearing of the writ petition that they were not asserting any rights of their own under the Industrial Disputes Act as soon as the Central Government took over the undertaking under the provisions of the Essential Supplies ActBut even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under Art. 13(1) of the ConstitutionWe have no. hesitation therefore in holding that the petitioner is quite within his rights in making this application under Art. 32 of the Constitution11. The result is that in our opinion the order of the Central Government dated, as well as the earlier order passed by the U. P. Government on, should be set aside and quashed. The respondents are certainly bound to restore the properties taken possession of by them under these orders to the petitioner and his. A difficulty, however, arises in this connection by reason of the fact that this petition is not on behalf of all the partners, nor is there any joint prayer by all of them claiming delivery of possession.
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Durga Prasad Vs. Devi Charan | she made a provision in the will to the effect that he should not be permitted to touch her dead body or perform her funeral rites. (2) The lady was of an extremely charitable and religious bent of mind and she made substantial provision for religious and charitable purposes in all the wills including the draft will Ex. C-1. She would not without any reason revoke the will which contained clear and strong provision regarding religious and charitable purposes. It is difficult to believe that she would shed her religious and charitable inclination by revoking the will and deleting the religious and charitable purpose contained in the will so as to benefit the respondent and make him the absolute owner of the properties without any restriction. This seems to be wholly improbable. (3) That in all the dispositions Smt. Jog Maya had seen to it that a clause was inserted in the will under which the legatee or trustee was prohibited from alienating the properties. Indeed, if she revoked the impugned will the result will be that the property would go to the respondent without any conditions or restrictions, a conduct that would be against the temperament of the testatrix." 33. Apart from these features, there are other circumstances which go to show that the will was not revoked by the testatrix. 34. R.W. 3 admitted that Devi Charan respondent never lived in the house (house of Jog Maya) but he used to visit it once or twice a month. Similarly, R.W. 7, another witness for the respondent, admit that Devi Charan used to visit Smt. Jog Maya previous to her death. Even the respondent Devi Charan admits clearly in his evidence that as he was not well, his wife had gone to see Smt. Jog Maya on the previous evening of her illness. In this connection, the statement of Devi Charan runs thus : I come to know about her illness on the previous evening. As I was not well, my wife went to see how Smt. Jog Maya was. From the evidence adduced by the respondent himself, therefore, it appears that Devi Charan had clear access to the house of Jog Maya which he visited off and on and his wife visited the house even during the illness of Jog Maya which resulted in her death. Devi Charan was fully aware that the will executed by Jog Maya completely deprived him of any interest in the properties. In these circumstances, the possibility that either Devi Charan or his wife may have pilfered or stolen the will in order to deprive the appellant of its benefit cannot be excluded. In this connection, it may be noted that the respondent has stated in his evidence that he complained to Jog Maya that he had been deprived of his right by making a trust in the name of Durga Prashad and Ram Nath and she assured him that she would destroy the trust deed and would make him the owner of the property. This statement is undoubtedly false and would not have been made by a woman of the nature and character of Jog Maya. Indeed, if the statement was made to him in August, 1955 as mentioned by the witness in his evidence, then there was no reason why, when the respondent filed his first objection on January 27, 1956 before the Sub-Judge Delhi, he did not mention it there nor even in the second objection and the additional pleas filed by him before the District Judge, Delhi. This shows that his statement in court is absolutely false and is made merely for the purpose of defeating the claim of respondent. 35. Again it appears that although the will was executed in 1947, about 8 years before her death, Smt. Jog Maya never expressed her intention to revoke the will at any time during this period to any of the attesting witnesses of the will or to Pt. Ram Nath who was a trustee under the draft will of her intention to revoke the will. It is difficult to believe that she would leave the entire property to the respondent whom she hated so much. 36. Further, there is absolutely no evidence to show that Devi Charan succeeded in gaining the favour of winning the confidence of Smt. Jog Maya at any time before her death so as to put her in a mood to leave the entire property absolutely to him after her death by revoking the impugned will. Nor is there anything to show that the respondent estranged the testatrix from the appellant to such an extent that the appellant fell in her estimation. It is also neither pleaded nor proved that since the execution of the impugned will any circumstance existed or incident happened which brought about a serious estrangement between the appellant and the testatrix so as to induce her to revoke the will. 37. Having regard to these circumstances mentioned above which do not appear to have been considered by the High Court at all we are clearly of the opinion that the presumption if any, that the will was revoked by Smt. Jog Maya has been sufficiently rebutted and the objector has miserably failed to discharge the onus which lay on him to prove that the will was revoked. Moreover, the will being a registered one and being the product of the free will of the testatrix there must be strong and cogent reasons for holding that it was revoked. The fact that the will was not found despite search at the time of death of Smt. Jog Maya in the circumstances is not sufficient to justify a presumption that the will was revoked. In the circumstances of this case particularly having regard to the fact that the respondent who would be interested in destroying the will had an access to the house of the testatrix, the presumption would be that the will was either stolen or misplace by him or at his instance. | 1[ds]9. Before however deciding the question of law arising in the present appeal, it may be necessary to set out a few facts against the background of which the point of law could be easily decided. It appears that Smt. Jog Maya was a very clever woman and personally looked after her own affairs as found by the High Court. The High Court also found that Smt. Jog Maya was a woman of a very religious and charitable bent of mind and had executed as many as three wills including the will in question and in all of them she had made adequate provision for Puja in the house and other charitable purposes. Smt. Jog Maya had purchased the house situated in Rang Mahal, Nahar Sadat Khan, No. 667, in or about 1933. She resided in the front portion of the ground floor and leased out the back portion of the ground floor to tenants. She got a temple constructed in the upper storey and installed the idols of Lakshmi Narain and Hanuman, on March 11, 1935. On May 7, 1935 she executed a will and got it registered on May 9, 1935. In this will she clearly stated that she was performing Puja and service of the temple from out of the income of the rents of the building. She further declared in the will that the house was made Wakf and dedicated to the temple and would remain so for all times to come. Under the will five respectable persons were made the trustees, but Smt. Jog Maya reserved the right of managing the property to herself and it was only after her death that the trustees were to manage the property and perform Puja etc11. The third will which is the will in question was executed on July 1, 1947 and registered on July 9, 1947. By this will Smt. Jog Maya cancelled the will of 1938 and declared the same as void and bequeathed all her properties, movable and immovable, to the appellant, Pt. Durga Prashad, who was also appointed the executor of the will. The will however contains a clear clause that while Durga Prashad will be the owner of all the properties he would have no right of alienating the house but would only be entitled to realise the rent and income from the properties which he should spend in the performance of Puja in the temple and appropriate the balance himself. In this will also there was a prohibition clause under which it was said that Devi Charan would have no concern with her estate, movable and immovable, and he should not even though her dead body. So far as the upper portion of the house is concerned, which was converted into a private temple where a deity was installed that is not the subject-matter of the will and there is no dispute about the same. The dispute between the parties centers round the ground portion of the house and other movable properties16. The High Court appears to have drawn the presumption regarding the revocation of the will from two facts. In the first place, it was found that there was no positive evidence to show that the will was in existence at the time of the death of the testatrix. In this connection, it relied on the evidence of Durga Prashad that a few days prior to her death Jog Maya had told him that the original will was in safe custody in the bank, but this fact was falsified by the circumstance that when the sealed box kept in the bank was opened no will was found. In our opinion, in the initial application which the appellant gave for grant of probate, he did not mention at all that Jog Maya told him that the original will was kept in safe custody in the bank. This averment was made in an amended application which was given by him before the District Judge. In the circumstances, therefore, we feel that no such statement was ever made by Jog Maya to the appellant who tried to (sic) his case which was clearly an after-thought otherwise there was no reason why he should not have mentioned this fact in the initial petition for the grant of probate which he filed before the District Judge. In these circumstances, not much turns upon what Durga Prashad says about the will being in the box. The High Court then relied on the circumstance that in spite of every possible search while the draft Ex. C-1 was in fact found the will was not found at all. The High Court, therefore, drew presumption that the testatrix must have revoked the will by destruction or otherwiseThis matter was clearly considered by the Privy Council in the case from India in Padman v. Hanwanta (AIR 1915 PC 111 : 17 Bom LR 609 : 13 ALJ 801) where the Privy Council sounded a note of caution in applying the aforesaid presumption to this country having regarding to the nature and habits of the people of our country. While approving the observations of the Chief Court their Lordships in the aforesaid case observed as follows :We think that the more reasonable presumption in this case is that the will was mislaid and lost, or else was stolen by one of the defendants after the death of Daula ... Their Lordships think that it was perfectly within the competency of the learned Judges to come to that finding. Much stress has been laid on the view expressed by Baron Parke, in Welch v. Phillips (supra) that when a will is traced to the possession of the deceased and is not forthcoming at his death, the presumption is that he has destroyed it. In view of the habits and conditions of the people of India this rule of law, if it can be so called, must be applied with considerable caution. In the present case the deceased was a very old man and, towards the end of his life, almost imbecile. There is nothing definite to show that he had any motive to destroy the will or was mentally competent to do so. On the other hand, the circumstances favour the view the Chief Court has taken that the will was either mislaid or stolen.The Privy Council made it very clear that the more reasonable presumption in a case like this should be that the will was mislaid, lost or stolen rather than that it was revoked. The Privy Council further endorsed the fact that the presumption of English Law should be applied to Indian conditions with considerable caution. The High Court in the instant case does not appear to have kept in view the note of warning sounded by the Privy Council in the aforesaid case19. There are large number of authorities of the Indian High Courts which take the view that even if the presumption is applied it should be applied with very great caution. Before however dealing with these authorities we would like to scan the English law on the pointIn my opinion the essential condition of the rule of English law if a will traced to the possession of the deceased and last seen there is not forthcoming on his death has not been established. Therefore the presumption of law on which Mr. Das laid much stress has no application to the fact of the present case .... The onus primarily lies on the party propounding the copy to account for the absence of the original .... Thus there is nothing to show any change of intention, which was likely to lead to the revocation of the will. In the circumstances the only reasonable inference is that the document is either mislaid or lost. The lost of a will does not operate as a revocation. It has been established that the will was duly executed by Manbodh and there is no uncertainty about the contents of it as a certified copy of it has been produced.We are inclined to agree with the view taken by the Patna High Court31. The correct legal position may therefore be stated as follows :(1) That where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people(2) That the presumption is a rebuttable one and can be rebutted by the slightest possible evidence direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted(3) That in view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the banks or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied) That where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the act of revoking the will or that the act of revoking he will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn(5) That in view of the express provision of Section 70 of the Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will(6) When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by interested persons32. We shall now apply the aforesaid principles to the facts to the present case. It is true that the impugned will despite search was not found at the time of death of the testatrix. At the same time it cannot be gain-said that the clear finding of the courts below is that the will was definitely executed by the testatrix with a sound disposing mind and had been attested by as many as 7 witnesses and had been proved. We have already indicated the essential feature common to all the wills executed by the testatrix in the past and three things appear to be very conspicuous :(1) That relations between the testatrix and Durga Prashad were very cordial, and therefore, there could be no occasion for the testatrix to suddenly change her mind to revoke the will so as to benefit the respondent a person whom she so detested that she made a provision in the will to the effect that he should not be permitted to touch her dead body or perform her funeral rites(2) The lady was of an extremely charitable and religious bent of mind and she made substantial provision for religious and charitable purposes in all the wills including the draft will Ex. C-1. She would not without any reason revoke the will which contained clear and strong provision regarding religious and charitable purposes. It is difficult to believe that she would shed her religious and charitable inclination by revoking the will and deleting the religious and charitable purpose contained in the will so as to benefit the respondent and make him the absolute owner of the properties without any restriction. This seems to be wholly) That in all the dispositions Smt. Jog Maya had seen to it that a clause was inserted in the will under which the legatee or trustee was prohibited from alienating the properties. Indeed, if she revoked the impugned will the result will be that the property would go to the respondent without any conditions or restrictions, a conduct that would be against the temperament of the testatrix33. Apart from these features, there are other circumstances which go to show that the will was not revoked by the testatrix34. R.W. 3 admitted that Devi Charan respondent never lived in the house (house of Jog Maya) but he used to visit it once or twice a month. Similarly, R.W. 7, another witness for the respondent, admit that Devi Charan used to visit Smt. Jog Maya previous to her death. Even the respondent Devi Charan admits clearly in his evidence that as he was not well, his wife had gone to see Smt. Jog Maya on the previous evening of her illness. In this connection, the statement of Devi Charan runs thus :I come to know about her illness on the previous evening. As I was not well, my wife went to see how Smt. Jog Maya wasFrom the evidence adduced by the respondent himself, therefore, it appears that Devi Charan had clear access to the house of Jog Maya which he visited off and on and his wife visited the house even during the illness of Jog Maya which resulted in her death. Devi Charan was fully aware that the will executed by Jog Maya completely deprived him of any interest in the properties. In these circumstances, the possibility that either Devi Charan or his wife may have pilfered or stolen the will in order to deprive the appellant of its benefit cannot be excluded. In this connection, it may be noted that the respondent has stated in his evidence that he complained to Jog Maya that he had been deprived of his right by making a trust in the name of Durga Prashad and Ram Nath and she assured him that she would destroy the trust deed and would make him the owner of the property. This statement is undoubtedly false and would not have been made by a woman of the nature and character of Jog Maya. Indeed, if the statement was made to him in August, 1955 as mentioned by the witness in his evidence, then there was no reason why, when the respondent filed his first objection on January 27, 1956 before the Sub-Judge Delhi, he did not mention it there nor even in the second objection and the additional pleas filed by him before the District Judge, Delhi. This shows that his statement in court is absolutely false and is made merely for the purpose of defeating the claim of respondent35. Again it appears that although the will was executed in 1947, about 8 years before her death, Smt. Jog Maya never expressed her intention to revoke the will at any time during this period to any of the attesting witnesses of the will or to Pt. Ram Nath who was a trustee under the draft will of her intention to revoke the will. It is difficult to believe that she would leave the entire property to the respondent whom she hated so much36. Further, there is absolutely no evidence to show that Devi Charan succeeded in gaining the favour of winning the confidence of Smt. Jog Maya at any time before her death so as to put her in a mood to leave the entire property absolutely to him after her death by revoking the impugned will. Nor is there anything to show that the respondent estranged the testatrix from the appellant to such an extent that the appellant fell in her estimation. It is also neither pleaded nor proved that since the execution of the impugned will any circumstance existed or incident happened which brought about a serious estrangement between the appellant and the testatrix so as to induce her to revoke the will37. Having regard to these circumstances mentioned above which do not appear to have been considered by the High Court at all we are clearly of the opinion that the presumption if any, that the will was revoked by Smt. Jog Maya has been sufficiently rebutted and the objector has miserably failed to discharge the onus which lay on him to prove that the will was revoked. Moreover, the will being a registered one and being the product of the free will of the testatrix there must be strong and cogent reasons for holding that it was revoked. The fact that the will was not found despite search at the time of death of Smt. Jog Maya in the circumstances is not sufficient to justify a presumption that the will was revoked. In the circumstances of this case particularly having regard to the fact that the respondent who would be interested in destroying the will had an access to the house of the testatrix, the presumption would be that the will was either stolen or misplace by him or at his instance. | 1 | 7,305 | 3,072 | ### 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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she made a provision in the will to the effect that he should not be permitted to touch her dead body or perform her funeral rites. (2) The lady was of an extremely charitable and religious bent of mind and she made substantial provision for religious and charitable purposes in all the wills including the draft will Ex. C-1. She would not without any reason revoke the will which contained clear and strong provision regarding religious and charitable purposes. It is difficult to believe that she would shed her religious and charitable inclination by revoking the will and deleting the religious and charitable purpose contained in the will so as to benefit the respondent and make him the absolute owner of the properties without any restriction. This seems to be wholly improbable. (3) That in all the dispositions Smt. Jog Maya had seen to it that a clause was inserted in the will under which the legatee or trustee was prohibited from alienating the properties. Indeed, if she revoked the impugned will the result will be that the property would go to the respondent without any conditions or restrictions, a conduct that would be against the temperament of the testatrix." 33. Apart from these features, there are other circumstances which go to show that the will was not revoked by the testatrix. 34. R.W. 3 admitted that Devi Charan respondent never lived in the house (house of Jog Maya) but he used to visit it once or twice a month. Similarly, R.W. 7, another witness for the respondent, admit that Devi Charan used to visit Smt. Jog Maya previous to her death. Even the respondent Devi Charan admits clearly in his evidence that as he was not well, his wife had gone to see Smt. Jog Maya on the previous evening of her illness. In this connection, the statement of Devi Charan runs thus : I come to know about her illness on the previous evening. As I was not well, my wife went to see how Smt. Jog Maya was. From the evidence adduced by the respondent himself, therefore, it appears that Devi Charan had clear access to the house of Jog Maya which he visited off and on and his wife visited the house even during the illness of Jog Maya which resulted in her death. Devi Charan was fully aware that the will executed by Jog Maya completely deprived him of any interest in the properties. In these circumstances, the possibility that either Devi Charan or his wife may have pilfered or stolen the will in order to deprive the appellant of its benefit cannot be excluded. In this connection, it may be noted that the respondent has stated in his evidence that he complained to Jog Maya that he had been deprived of his right by making a trust in the name of Durga Prashad and Ram Nath and she assured him that she would destroy the trust deed and would make him the owner of the property. This statement is undoubtedly false and would not have been made by a woman of the nature and character of Jog Maya. Indeed, if the statement was made to him in August, 1955 as mentioned by the witness in his evidence, then there was no reason why, when the respondent filed his first objection on January 27, 1956 before the Sub-Judge Delhi, he did not mention it there nor even in the second objection and the additional pleas filed by him before the District Judge, Delhi. This shows that his statement in court is absolutely false and is made merely for the purpose of defeating the claim of respondent. 35. Again it appears that although the will was executed in 1947, about 8 years before her death, Smt. Jog Maya never expressed her intention to revoke the will at any time during this period to any of the attesting witnesses of the will or to Pt. Ram Nath who was a trustee under the draft will of her intention to revoke the will. It is difficult to believe that she would leave the entire property to the respondent whom she hated so much. 36. Further, there is absolutely no evidence to show that Devi Charan succeeded in gaining the favour of winning the confidence of Smt. Jog Maya at any time before her death so as to put her in a mood to leave the entire property absolutely to him after her death by revoking the impugned will. Nor is there anything to show that the respondent estranged the testatrix from the appellant to such an extent that the appellant fell in her estimation. It is also neither pleaded nor proved that since the execution of the impugned will any circumstance existed or incident happened which brought about a serious estrangement between the appellant and the testatrix so as to induce her to revoke the will. 37. Having regard to these circumstances mentioned above which do not appear to have been considered by the High Court at all we are clearly of the opinion that the presumption if any, that the will was revoked by Smt. Jog Maya has been sufficiently rebutted and the objector has miserably failed to discharge the onus which lay on him to prove that the will was revoked. Moreover, the will being a registered one and being the product of the free will of the testatrix there must be strong and cogent reasons for holding that it was revoked. The fact that the will was not found despite search at the time of death of Smt. Jog Maya in the circumstances is not sufficient to justify a presumption that the will was revoked. In the circumstances of this case particularly having regard to the fact that the respondent who would be interested in destroying the will had an access to the house of the testatrix, the presumption would be that the will was either stolen or misplace by him or at his instance.
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benefit the respondent a person whom she so detested that she made a provision in the will to the effect that he should not be permitted to touch her dead body or perform her funeral rites(2) The lady was of an extremely charitable and religious bent of mind and she made substantial provision for religious and charitable purposes in all the wills including the draft will Ex. C-1. She would not without any reason revoke the will which contained clear and strong provision regarding religious and charitable purposes. It is difficult to believe that she would shed her religious and charitable inclination by revoking the will and deleting the religious and charitable purpose contained in the will so as to benefit the respondent and make him the absolute owner of the properties without any restriction. This seems to be wholly) That in all the dispositions Smt. Jog Maya had seen to it that a clause was inserted in the will under which the legatee or trustee was prohibited from alienating the properties. Indeed, if she revoked the impugned will the result will be that the property would go to the respondent without any conditions or restrictions, a conduct that would be against the temperament of the testatrix33. Apart from these features, there are other circumstances which go to show that the will was not revoked by the testatrix34. R.W. 3 admitted that Devi Charan respondent never lived in the house (house of Jog Maya) but he used to visit it once or twice a month. Similarly, R.W. 7, another witness for the respondent, admit that Devi Charan used to visit Smt. Jog Maya previous to her death. Even the respondent Devi Charan admits clearly in his evidence that as he was not well, his wife had gone to see Smt. Jog Maya on the previous evening of her illness. In this connection, the statement of Devi Charan runs thus :I come to know about her illness on the previous evening. As I was not well, my wife went to see how Smt. Jog Maya wasFrom the evidence adduced by the respondent himself, therefore, it appears that Devi Charan had clear access to the house of Jog Maya which he visited off and on and his wife visited the house even during the illness of Jog Maya which resulted in her death. Devi Charan was fully aware that the will executed by Jog Maya completely deprived him of any interest in the properties. In these circumstances, the possibility that either Devi Charan or his wife may have pilfered or stolen the will in order to deprive the appellant of its benefit cannot be excluded. In this connection, it may be noted that the respondent has stated in his evidence that he complained to Jog Maya that he had been deprived of his right by making a trust in the name of Durga Prashad and Ram Nath and she assured him that she would destroy the trust deed and would make him the owner of the property. This statement is undoubtedly false and would not have been made by a woman of the nature and character of Jog Maya. Indeed, if the statement was made to him in August, 1955 as mentioned by the witness in his evidence, then there was no reason why, when the respondent filed his first objection on January 27, 1956 before the Sub-Judge Delhi, he did not mention it there nor even in the second objection and the additional pleas filed by him before the District Judge, Delhi. This shows that his statement in court is absolutely false and is made merely for the purpose of defeating the claim of respondent35. Again it appears that although the will was executed in 1947, about 8 years before her death, Smt. Jog Maya never expressed her intention to revoke the will at any time during this period to any of the attesting witnesses of the will or to Pt. Ram Nath who was a trustee under the draft will of her intention to revoke the will. It is difficult to believe that she would leave the entire property to the respondent whom she hated so much36. Further, there is absolutely no evidence to show that Devi Charan succeeded in gaining the favour of winning the confidence of Smt. Jog Maya at any time before her death so as to put her in a mood to leave the entire property absolutely to him after her death by revoking the impugned will. Nor is there anything to show that the respondent estranged the testatrix from the appellant to such an extent that the appellant fell in her estimation. It is also neither pleaded nor proved that since the execution of the impugned will any circumstance existed or incident happened which brought about a serious estrangement between the appellant and the testatrix so as to induce her to revoke the will37. Having regard to these circumstances mentioned above which do not appear to have been considered by the High Court at all we are clearly of the opinion that the presumption if any, that the will was revoked by Smt. Jog Maya has been sufficiently rebutted and the objector has miserably failed to discharge the onus which lay on him to prove that the will was revoked. Moreover, the will being a registered one and being the product of the free will of the testatrix there must be strong and cogent reasons for holding that it was revoked. The fact that the will was not found despite search at the time of death of Smt. Jog Maya in the circumstances is not sufficient to justify a presumption that the will was revoked. In the circumstances of this case particularly having regard to the fact that the respondent who would be interested in destroying the will had an access to the house of the testatrix, the presumption would be that the will was either stolen or misplace by him or at his instance.
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Ruby General Insurance Co. Ltd Vs. Pearey Lal Kumar And Another | to which reference was made by Lord Summer, the policy of insurance contained a clause referring to the decision of an arbitrator "all difference arising out of this policy". It also contained a recutal that the assured had made a proposal and declaration as the basis of the contract, and a clause to the effect that compliance with the conditions indorsed upon the policy should be a condition precedent to any liability on the part of the insurers. One of the conditions provided that if any false declaration should be made or used in support of a claim all benefits under the policy should be forfeited. In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false. When the matter came before the arbitrator, the assured objected that this was not a difference in the arbitration and that the arbitrator had no power to determine whether the answers were true or not, or to determine any matters which called in question the validity of the policy. In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading C. J. observed as follows:"If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract, such as a misrepresentation of some material fact inducting the contract of which the force and effect are not declared by the contract itself. In that case the materiality of the fact and its effect in inducing the contract would have to be tried. In the present case the company are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the contract. If they succeed in escaping liability that is by reason of one of the clauses in the policy. In resisting the claim they are not avoiding the policy but relying on its terms. In my opinion, therefore, the question whether or not the statement is true is a question arising out of the policy."8. The main contention put forward on behalf of the appellant is that the points in dispute fall outside the jurisdiction of the arbitrator, firstly because the existence of the arbitration agreement is challenged, and secondly because the sole object of the application under S. 33, Arbitration Act, is to have the effect of the arbitration agreement determined. In our opinion, neither of these objections is sound. How can it be held that the existence of the arbitration agreement is challenged, when both parties admit that the clause in the policy which contains that agreement binds them. It is neither partys case that there is no arbitration agreement in the policy. On the other hand, both parties admit that such agreement exists, and each of them relies on it to support its case. It is true that the appellant contends that the arbitration agreement has ceased to be applicable, but that contention cannot be sustained without having recourse to the arbitration agreement. It is said that the agreement no longer subsists, but that is very different from saying that the agreement never existed or was void ab initio and therefore, is to be treated as non existent.9. Again, no question of determining the effect of the arbitration agreement arises, because there is no dispute between the parties as to what it means. The language of the arbitration clause is quite clear, and both parties construed it in the same way. The real question between them is whether respondent1 has or has not complied with the conditions of the agreement. But this question does not turn on the effect of the agreement. This is the view which has substantially been taken by the High Court and in our opinion it is correct.10. The second point urged before us is that the award is invalid since it was made in spite of the Courts injunction directing the arbitrator not to pronounced any award. This point, however, does not, in our opinion, fall within the scope of this appeal. The application under S. 33, Arbitration Act, which is the subject of this appeal, was filed before the award was pronounced. In that application, there is no reference to the award; nor is there any reference to the circumstances which are now stated to invalidate the award and which happened after the application was filed. The learned counsel for the appellant made an application before us praying for the amendment of the petition under S. 33 by introducing certain additional facts and adding a prayer for declaring the award to be invalid, but it was rejected by us. it should be stated that as early as 24-3-1950, the subordinate judge in dismissing the appellants petition under S. 33, made the following observations:"During the pendency of the arbitration proceedings the arbitrator pronounced the award...... The award has now been filed in the Court of S. Mohinder Singh, sub-judge, first class, Delhi. Any objection against the award can be filed there. In this application in which there is no prayer for setting aside the award which exists. I do not think it proper to decide the question of the validity of the award."In our opinion, the subordinate judge correctly indicated the courts which it was open to the appellant in law to adopt for the purpose of questioning the validity of the award, but not having taken that course and not having made any application in the Courts below for amending the petition under S. 33, the company cannot ask this Court to go into the validity of the award by widening the scope of the original petition. This court is always in favour of shortening litigation, but it would be a very unusual step to allow the petition under S. 33 to be amended now and to decide a question involving investigation of facts without having the benefit of the judgments of the Courts below.1 | 0[ds]In the present case, both the parties admit the contract and state that they are bound by it. Indeed, the appellant-company, in order to make good its contention, is obliged to rely and does rely on that part of cl. 7 of the policy which states that if the company should disclaim liability and the claim be not referred to arbitration within 13 months of such disclaimer, the claim shall be deemed to have been abandoned. Evidently, the company cannot succeed without calling in aid this clause and relying on it. Again, respondent 1 does not say that he is not bound by the clause but states that the matter was referred to arbitration before any valid disclaimer was made. The position, therefore, is that one party relying upon the arbitration clause says that there has been a breach of its terms and the other party, also relying on that clause, says that there has been no breach but on the other hand the requirements of that clause have been fulfilled. Thus the point in dispute between the parties is one for the decision of which the appellant is compelled to invoke to his aid one of the terms of the insurance agreement It is thus clear that the difference between the parties is a difference arising out of the policy and the arbitrator had jurisdiction to decide it, the parties having made him the sole judge of all differences arising out of theour opinion, neither of these objections is sound. How can it be held that the existence of the arbitration agreement is challenged, when both parties admit that the clause in the policy which contains that agreement binds them. It is neither partys case that there is no arbitration agreement in the policy. On the other hand, both parties admit that such agreement exists, and each of them relies on it to support its case. It is true that the appellant contends that the arbitration agreement has ceased to be applicable, but that contention cannot be sustained without having recourse to the arbitration agreement. It is said that the agreement no longer subsists, but that is very different from saying that the agreement never existed or was void ab initio and therefore, is to be treated as non existent.Again, no question of determining the effect of the arbitration agreement arises, because there is no dispute between the parties as to what it means. The language of the arbitration clause is quite clear, and both parties construed it in the same way. The real question between them is whether respondent1 has or has not complied with the conditions of the agreement. But this question does not turn on the effect of the agreement. This is the view which has substantially been taken by the High Court and in our opinion it is correct.point, however, does not, in our opinion, fall within the scope of this appeal. The application under S. 33, Arbitration Act, which is the subject of this appeal, was filed before the award was pronounced. In that application, there is no reference to the award; nor is there any reference to the circumstances which are now stated to invalidate the award and which happened after the application was filed. The learned counsel for the appellant made an application before us praying for the amendment of the petition under S. 33 by introducing certain additional facts and adding a prayer for declaring the award to be invalid, but it was rejected by us. it should be stated that as early as 24-3-1950, the subordinate judge in dismissing the appellants petition under S. 33, made the followingthe pendency of the arbitration proceedings the arbitrator pronounced the award...... The award has now been filed in the Court of S. Mohinder Singh, sub-judge, first class, Delhi. Any objection against the award can be filed there. In this application in which there is no prayer for setting aside the award which exists. I do not think it proper to decide the question of the validity of theour opinion, the subordinate judge correctly indicated the courts which it was open to the appellant in law to adopt for the purpose of questioning the validity of the award, but not having taken that course and not having made any application in the Courts below for amending the petition under S. 33, the company cannot ask this Court to go into the validity of the award by widening the scope of the original petition. This court is always in favour of shortening litigation, but it would be a very unusual step to allow the petition under S. 33 to be amended now and to decide a question involving investigation of facts without having the benefit of the judgments of the Courts below. | 0 | 3,690 | 870 | ### 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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to which reference was made by Lord Summer, the policy of insurance contained a clause referring to the decision of an arbitrator "all difference arising out of this policy". It also contained a recutal that the assured had made a proposal and declaration as the basis of the contract, and a clause to the effect that compliance with the conditions indorsed upon the policy should be a condition precedent to any liability on the part of the insurers. One of the conditions provided that if any false declaration should be made or used in support of a claim all benefits under the policy should be forfeited. In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false. When the matter came before the arbitrator, the assured objected that this was not a difference in the arbitration and that the arbitrator had no power to determine whether the answers were true or not, or to determine any matters which called in question the validity of the policy. In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading C. J. observed as follows:"If the company were seeking to avoid the contract in the true sense they would have to rely upon some matter outside the contract, such as a misrepresentation of some material fact inducting the contract of which the force and effect are not declared by the contract itself. In that case the materiality of the fact and its effect in inducing the contract would have to be tried. In the present case the company are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the contract. If they succeed in escaping liability that is by reason of one of the clauses in the policy. In resisting the claim they are not avoiding the policy but relying on its terms. In my opinion, therefore, the question whether or not the statement is true is a question arising out of the policy."8. The main contention put forward on behalf of the appellant is that the points in dispute fall outside the jurisdiction of the arbitrator, firstly because the existence of the arbitration agreement is challenged, and secondly because the sole object of the application under S. 33, Arbitration Act, is to have the effect of the arbitration agreement determined. In our opinion, neither of these objections is sound. How can it be held that the existence of the arbitration agreement is challenged, when both parties admit that the clause in the policy which contains that agreement binds them. It is neither partys case that there is no arbitration agreement in the policy. On the other hand, both parties admit that such agreement exists, and each of them relies on it to support its case. It is true that the appellant contends that the arbitration agreement has ceased to be applicable, but that contention cannot be sustained without having recourse to the arbitration agreement. It is said that the agreement no longer subsists, but that is very different from saying that the agreement never existed or was void ab initio and therefore, is to be treated as non existent.9. Again, no question of determining the effect of the arbitration agreement arises, because there is no dispute between the parties as to what it means. The language of the arbitration clause is quite clear, and both parties construed it in the same way. The real question between them is whether respondent1 has or has not complied with the conditions of the agreement. But this question does not turn on the effect of the agreement. This is the view which has substantially been taken by the High Court and in our opinion it is correct.10. The second point urged before us is that the award is invalid since it was made in spite of the Courts injunction directing the arbitrator not to pronounced any award. This point, however, does not, in our opinion, fall within the scope of this appeal. The application under S. 33, Arbitration Act, which is the subject of this appeal, was filed before the award was pronounced. In that application, there is no reference to the award; nor is there any reference to the circumstances which are now stated to invalidate the award and which happened after the application was filed. The learned counsel for the appellant made an application before us praying for the amendment of the petition under S. 33 by introducing certain additional facts and adding a prayer for declaring the award to be invalid, but it was rejected by us. it should be stated that as early as 24-3-1950, the subordinate judge in dismissing the appellants petition under S. 33, made the following observations:"During the pendency of the arbitration proceedings the arbitrator pronounced the award...... The award has now been filed in the Court of S. Mohinder Singh, sub-judge, first class, Delhi. Any objection against the award can be filed there. In this application in which there is no prayer for setting aside the award which exists. I do not think it proper to decide the question of the validity of the award."In our opinion, the subordinate judge correctly indicated the courts which it was open to the appellant in law to adopt for the purpose of questioning the validity of the award, but not having taken that course and not having made any application in the Courts below for amending the petition under S. 33, the company cannot ask this Court to go into the validity of the award by widening the scope of the original petition. This court is always in favour of shortening litigation, but it would be a very unusual step to allow the petition under S. 33 to be amended now and to decide a question involving investigation of facts without having the benefit of the judgments of the Courts below.1
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In the present case, both the parties admit the contract and state that they are bound by it. Indeed, the appellant-company, in order to make good its contention, is obliged to rely and does rely on that part of cl. 7 of the policy which states that if the company should disclaim liability and the claim be not referred to arbitration within 13 months of such disclaimer, the claim shall be deemed to have been abandoned. Evidently, the company cannot succeed without calling in aid this clause and relying on it. Again, respondent 1 does not say that he is not bound by the clause but states that the matter was referred to arbitration before any valid disclaimer was made. The position, therefore, is that one party relying upon the arbitration clause says that there has been a breach of its terms and the other party, also relying on that clause, says that there has been no breach but on the other hand the requirements of that clause have been fulfilled. Thus the point in dispute between the parties is one for the decision of which the appellant is compelled to invoke to his aid one of the terms of the insurance agreement It is thus clear that the difference between the parties is a difference arising out of the policy and the arbitrator had jurisdiction to decide it, the parties having made him the sole judge of all differences arising out of theour opinion, neither of these objections is sound. How can it be held that the existence of the arbitration agreement is challenged, when both parties admit that the clause in the policy which contains that agreement binds them. It is neither partys case that there is no arbitration agreement in the policy. On the other hand, both parties admit that such agreement exists, and each of them relies on it to support its case. It is true that the appellant contends that the arbitration agreement has ceased to be applicable, but that contention cannot be sustained without having recourse to the arbitration agreement. It is said that the agreement no longer subsists, but that is very different from saying that the agreement never existed or was void ab initio and therefore, is to be treated as non existent.Again, no question of determining the effect of the arbitration agreement arises, because there is no dispute between the parties as to what it means. The language of the arbitration clause is quite clear, and both parties construed it in the same way. The real question between them is whether respondent1 has or has not complied with the conditions of the agreement. But this question does not turn on the effect of the agreement. This is the view which has substantially been taken by the High Court and in our opinion it is correct.point, however, does not, in our opinion, fall within the scope of this appeal. The application under S. 33, Arbitration Act, which is the subject of this appeal, was filed before the award was pronounced. In that application, there is no reference to the award; nor is there any reference to the circumstances which are now stated to invalidate the award and which happened after the application was filed. The learned counsel for the appellant made an application before us praying for the amendment of the petition under S. 33 by introducing certain additional facts and adding a prayer for declaring the award to be invalid, but it was rejected by us. it should be stated that as early as 24-3-1950, the subordinate judge in dismissing the appellants petition under S. 33, made the followingthe pendency of the arbitration proceedings the arbitrator pronounced the award...... The award has now been filed in the Court of S. Mohinder Singh, sub-judge, first class, Delhi. Any objection against the award can be filed there. In this application in which there is no prayer for setting aside the award which exists. I do not think it proper to decide the question of the validity of theour opinion, the subordinate judge correctly indicated the courts which it was open to the appellant in law to adopt for the purpose of questioning the validity of the award, but not having taken that course and not having made any application in the Courts below for amending the petition under S. 33, the company cannot ask this Court to go into the validity of the award by widening the scope of the original petition. This court is always in favour of shortening litigation, but it would be a very unusual step to allow the petition under S. 33 to be amended now and to decide a question involving investigation of facts without having the benefit of the judgments of the Courts below.
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The Century Spg. & Mfg. Co. Ltd Vs. District Municipality Of Ulhasnagar | as Rule 3 (9) provides in express terms that only the words and expressions other than those defined in Rule 3 shall be deemed to be used in the Rules in the same sense in which they are used in the Act.Rule 3 (7) therefore expressly excludes the definition of the building given in the Act by providing a special definition of a building or a house in Rule 3 (7). It is clear therefore that the word "building or "house" must bear the meaning given to it by this Rule and not the meaning given to it by the Act. It follows that as by virtue of Rule 1 (ii) these rules extend to buildings or houses or shops or huts (jhupras) only and a building or a house under Rule 3 (7) means a building, house, shop, hut (jhopras) etc., with a roof thereon constructed for human habitation or otherwise, open lands obviously are not only not included in the term building or "house" but the Rules do not extend to such open lands.14. In his assessment order dated March 6, 1964 passed against the Century Mills the assessing officers justified the inclusion of the open lands in serving as follows :-"The Superintendent (of the appellant Company) states that the Municipality has decided to levy tax on the buildings or shops only and that there is no resolution, rule or bye-laws for the levy of house tax on land. Apparently the Superintendents contention seems to be correct. But on deeper consideration it will be seen that the words "whatsoever form the property" have a significance and the same can include lands also. According to the District Municipal Act of 1901, building includes, "any hut, shed or other enclosure whether used as human dwelling or otherwise" and also "walls, verandah, fixed platforms, plinths door-steps and the like". Now the Century Rayon Factory is bounded by a compound wall in which all the open space lies. Whole enclosure can therefore be held as enclosure and is therefore liable for rating. On the whole, the Act and the Rules have empowered the Municipality for the assessment on the open space."15. In our view, the assessing officer was clearly wrong, for, what he did was to apply the definition of a building as given in Section 3 of the Act instead of the definition in Rule 3 (7). That he was not right in doing as Rule 3 (9) excludes the application of that definition. He was bound by the definition of building in Rule 3 (7) and in view of Rule 1 (ii) he could base his assessment only on the annual letting value of a building as provided by Schedule 1 and not the open lands.He was also not entitled to rely upon the words "whatsoever form any property" in Rule 1 (ii) as those words go with the previous words "buildings or houses or shops or huts" and do not include open lands to mean buildings or houses. The reasoning of the High Court regarding the objection to the conclusion of the open lands in the assessment also does not appear to be correct.Though the High Court on a consideration of the Rules held that the Municipality was not authorised to levy the rate on open lands it observed that if an open land formed an adjunct of the factory building it would constitute an amenity, that in that event a hypothetical tenant would pay a higher rent taking such an amenity into consideration, that the assessing authority would be entitled in such a case to take into account such an additional amenity, that there could be no objection, if he did so and that to decide whether the assessing officer had valued the open land as an adjunct to the factory building or separately as open land evidence would have to be led and scrutinised and therefore it would not be possible to decide such a question in a writ petition.. With respect, it is not possible to agree with the High Court on this part of its judgment, firstly, because the open lands have been separately valued and secondly because the assessing officer in his said order has in clear terms repelled the appellants objection to his taxing the open lands by relying on the definition of building in Section 3 of the Act as including open lands when bounded by compound walls and not on the ground that they formed an adjunct of the factory buildings and were an amenity or additional advantage which a hypothetical tenant would take into account when offering rent.In our view the assessing officer was not entitled to include the open lands while rating the factory building of the appellant companies as such inclusion was ultra vires the Rules and therefore invalid.16. So far as the rest of the contentions are concerned they can be dealt with, in our view, more properly by the appellate tribunal before whom the appeals by the appellant companies are at present pending rather than in these appeals. We therefore do not propose to go into those questions, especially as it is agreed by Counsel for the Municipality (1) that the Municipality will not take any objection to these questions being canvassed in those appeals on the ground that any one or more of them were not taken by the appellants in their objections to the assessment list and (2) that it will not also take any objection to the appeal by the Century Mills having been filed beyond the time prescribed therefor. Before the High Court the Municipality had in fact undertaken that it will not insist that the appellants should confine their objections in their appeals only to the grounds urged in their objections to the assessment list under S. 65 of the Act. The appellant Companies would therefore be entitled to urge that the valuation made by the assessing officer is erroneous or bad on any ground available to them under the Act. | 1[ds]After considering the objections as required by the Act the Government by a further notification dated September 20, 1960 declared the said local area of which the same boundaries were set out in the Schedule thereto to be a permanent municipal district. It is true that in constituting the municipal district of Ulhasnagar the Government included parts of villages enumerated in the saidwhile constituting a municipal district the Government, when it is expedient so to do, can join to an existing village or suburb the land adjoining thereto. Similarly Section 4 empowers the Government to extend, contract or otherwise alter from time to time the existing limits of a municipal district or declare any local area to be a municipal district. There is nothing either in Section 4 or Section 7 to limit the power of the Government in constituting a municipal district to include therein the whole of the village or suburb as contended. The Act, on the other hand, permits the Government to include "land adjoining thereto" which shows that a part of the land adjoining to an existing village or a suburb can also be added if it is thought expedient so to do. Likewise while altering the limits of an existing municipal district it can exclude from or include in it part of the land where it becomes necessary or expedient to do. That being so, it is impossible to say that by taking parts of the villages set out in the Schedules to the two notifications the Government formed a municipal district contrary to the provisions of Sections 4 or 7 or that the constitution by it of the municipal district of Ulhasnagar was in any way contrary to or ultra vires the twoMunicipality therefore has complied with the procedure required by the Act before a tax is imposed by selecting the tax, by laying down the class of property which it desires to make liable, the amount of the rate at which such property would be liable and lastly the basis of valuation for purposes of the rate on buildings and houses.We are unable therefore to accept the contention that the basis of valuation is the method of valuation of annual value or with the contention of Mr. Desai for the companies in other appeals that the Rules not only have to specify the classification of properties which are sought to be taxed but also the method of valuation for each class viz., the rental basis, cost or capital value or the profits basis. The fallacy in the contention lies in mixing up the method with the basis of valuation. The basis as provided in the Rules is the annual value which can be ascertained or arrived at by any one or more of the recognised methods.9. Though we are not able to accede to these contentions we think the appellants are on a surer ground in their third contention viz., that the said house tax bills were not in accordance with the Rules to the extent that they sought to assess the open lands. | 1 | 6,581 | 539 | ### 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:
as Rule 3 (9) provides in express terms that only the words and expressions other than those defined in Rule 3 shall be deemed to be used in the Rules in the same sense in which they are used in the Act.Rule 3 (7) therefore expressly excludes the definition of the building given in the Act by providing a special definition of a building or a house in Rule 3 (7). It is clear therefore that the word "building or "house" must bear the meaning given to it by this Rule and not the meaning given to it by the Act. It follows that as by virtue of Rule 1 (ii) these rules extend to buildings or houses or shops or huts (jhupras) only and a building or a house under Rule 3 (7) means a building, house, shop, hut (jhopras) etc., with a roof thereon constructed for human habitation or otherwise, open lands obviously are not only not included in the term building or "house" but the Rules do not extend to such open lands.14. In his assessment order dated March 6, 1964 passed against the Century Mills the assessing officers justified the inclusion of the open lands in serving as follows :-"The Superintendent (of the appellant Company) states that the Municipality has decided to levy tax on the buildings or shops only and that there is no resolution, rule or bye-laws for the levy of house tax on land. Apparently the Superintendents contention seems to be correct. But on deeper consideration it will be seen that the words "whatsoever form the property" have a significance and the same can include lands also. According to the District Municipal Act of 1901, building includes, "any hut, shed or other enclosure whether used as human dwelling or otherwise" and also "walls, verandah, fixed platforms, plinths door-steps and the like". Now the Century Rayon Factory is bounded by a compound wall in which all the open space lies. Whole enclosure can therefore be held as enclosure and is therefore liable for rating. On the whole, the Act and the Rules have empowered the Municipality for the assessment on the open space."15. In our view, the assessing officer was clearly wrong, for, what he did was to apply the definition of a building as given in Section 3 of the Act instead of the definition in Rule 3 (7). That he was not right in doing as Rule 3 (9) excludes the application of that definition. He was bound by the definition of building in Rule 3 (7) and in view of Rule 1 (ii) he could base his assessment only on the annual letting value of a building as provided by Schedule 1 and not the open lands.He was also not entitled to rely upon the words "whatsoever form any property" in Rule 1 (ii) as those words go with the previous words "buildings or houses or shops or huts" and do not include open lands to mean buildings or houses. The reasoning of the High Court regarding the objection to the conclusion of the open lands in the assessment also does not appear to be correct.Though the High Court on a consideration of the Rules held that the Municipality was not authorised to levy the rate on open lands it observed that if an open land formed an adjunct of the factory building it would constitute an amenity, that in that event a hypothetical tenant would pay a higher rent taking such an amenity into consideration, that the assessing authority would be entitled in such a case to take into account such an additional amenity, that there could be no objection, if he did so and that to decide whether the assessing officer had valued the open land as an adjunct to the factory building or separately as open land evidence would have to be led and scrutinised and therefore it would not be possible to decide such a question in a writ petition.. With respect, it is not possible to agree with the High Court on this part of its judgment, firstly, because the open lands have been separately valued and secondly because the assessing officer in his said order has in clear terms repelled the appellants objection to his taxing the open lands by relying on the definition of building in Section 3 of the Act as including open lands when bounded by compound walls and not on the ground that they formed an adjunct of the factory buildings and were an amenity or additional advantage which a hypothetical tenant would take into account when offering rent.In our view the assessing officer was not entitled to include the open lands while rating the factory building of the appellant companies as such inclusion was ultra vires the Rules and therefore invalid.16. So far as the rest of the contentions are concerned they can be dealt with, in our view, more properly by the appellate tribunal before whom the appeals by the appellant companies are at present pending rather than in these appeals. We therefore do not propose to go into those questions, especially as it is agreed by Counsel for the Municipality (1) that the Municipality will not take any objection to these questions being canvassed in those appeals on the ground that any one or more of them were not taken by the appellants in their objections to the assessment list and (2) that it will not also take any objection to the appeal by the Century Mills having been filed beyond the time prescribed therefor. Before the High Court the Municipality had in fact undertaken that it will not insist that the appellants should confine their objections in their appeals only to the grounds urged in their objections to the assessment list under S. 65 of the Act. The appellant Companies would therefore be entitled to urge that the valuation made by the assessing officer is erroneous or bad on any ground available to them under the Act.
### Response:
1
### Explanation:
After considering the objections as required by the Act the Government by a further notification dated September 20, 1960 declared the said local area of which the same boundaries were set out in the Schedule thereto to be a permanent municipal district. It is true that in constituting the municipal district of Ulhasnagar the Government included parts of villages enumerated in the saidwhile constituting a municipal district the Government, when it is expedient so to do, can join to an existing village or suburb the land adjoining thereto. Similarly Section 4 empowers the Government to extend, contract or otherwise alter from time to time the existing limits of a municipal district or declare any local area to be a municipal district. There is nothing either in Section 4 or Section 7 to limit the power of the Government in constituting a municipal district to include therein the whole of the village or suburb as contended. The Act, on the other hand, permits the Government to include "land adjoining thereto" which shows that a part of the land adjoining to an existing village or a suburb can also be added if it is thought expedient so to do. Likewise while altering the limits of an existing municipal district it can exclude from or include in it part of the land where it becomes necessary or expedient to do. That being so, it is impossible to say that by taking parts of the villages set out in the Schedules to the two notifications the Government formed a municipal district contrary to the provisions of Sections 4 or 7 or that the constitution by it of the municipal district of Ulhasnagar was in any way contrary to or ultra vires the twoMunicipality therefore has complied with the procedure required by the Act before a tax is imposed by selecting the tax, by laying down the class of property which it desires to make liable, the amount of the rate at which such property would be liable and lastly the basis of valuation for purposes of the rate on buildings and houses.We are unable therefore to accept the contention that the basis of valuation is the method of valuation of annual value or with the contention of Mr. Desai for the companies in other appeals that the Rules not only have to specify the classification of properties which are sought to be taxed but also the method of valuation for each class viz., the rental basis, cost or capital value or the profits basis. The fallacy in the contention lies in mixing up the method with the basis of valuation. The basis as provided in the Rules is the annual value which can be ascertained or arrived at by any one or more of the recognised methods.9. Though we are not able to accede to these contentions we think the appellants are on a surer ground in their third contention viz., that the said house tax bills were not in accordance with the Rules to the extent that they sought to assess the open lands.
|
Kailash Sonkar Vs. Smt. Maya Devi | herself to Hinduism voluntarily and with full publicity, making no secret of this fact. A letter appearing at page 22 of the Paperbook shows that she accepted Hindu religion with all its customs and rites voluntarily. The relevant part of the letter reads thus :I am prepared to own Hindu religion with all sincerity and to follow all its customs and rites.Today on November 6, 1976 I am fully major. Hence the above decision is of my own wherein no external interference exists.44. Immediately thereafter she was married to one Jai Prakash Shalwar and the marriage certificate dated November 14, 1976 fully corroborates this fact (page 24 of the Paperbook). The marriage certificate states that the marriage of Maya with Jai Prakash was performed on November 6, 1976 in Arya Samaj, Gorakhpur according to vedic rites. Another certificate issued by the Secretary of the Arya Samaj, Gorakhpur is also to the same effect. The aforesaid documents are amply corroborated by the oral evidence led by the respondent.45. The evidence of Darshanlal Dharmak deserves special mention because this witness was a prominent member and President of the Katia community for the last two-and-a half years. The witness goes on to state that the marriage was celebrated in the presence of 80 persons of his community, including elderly people and his presence at the marriage clearly indicates that the community had fully accepted the respondent back to her caste. The marriage was followed by a reception 3-4 days later which was attended by this witness also and at that time nobody raised any objection about Maya as not belonging to the Katia community. The witness further states that he had gone to the house of the respondent and that members of the community had come to celebrate the birthday of her child.46. It would appear from the evidence of Bhaiyalal Nag, another witness produced by the respondent, that there was a Katia Samaj Sanstha in Madhya Pradesh which was registered under the Societies Registration Act and the witness was the Vice-President of this organisation. He states that Jai Prakash was known to him and belonged to his caste and that he was married to Maya Devi. He further states that no objection was raised in the Organisation about this marriage. He further stated that Maya Devi had been attending number of marriages in his caste. He makes a very stark statement which is fully supported by the Abhinandan Patra and his statement may be extracted thus :We mentioned her in this Abhinandan Patra as belonging to Katia caste as we were proud as she was the first M.L.A. in our caste.47. Ex. D-1A is the Abhinandan Patra given to Maya Devi some time in the year 1977-78, i.e. 3 years before the elections. Furthermore, there is the evidence of Keshav Prasad Pathak which is rather important. His evidence shows that a joint application was made by the respondent and her husband regarding their consent to the marriage. He further stated that before the parties are married, if either of them is not a Hindu then he is first converted to Hinduism (Shudhikaran) by religious rites performed in accordance with the Arya Samaj rites. He proves the applications given by the respondent and her husband (Ex. P-8 and 9). He has further stated that the marriage ceremony is usually performed before the members of the Executive Committee of the Arya Samaj. He further defines the term Shudhikaran to mean "Convert a non-Hindu to Hinduism". He goes on to say that the marriage was celebrated at the Arya Samaj according to vedic ceremony which included Saptapadi and Havan.48. The appellant himself in his statement admitted that in Jabalpur there are five-six thousands people of Katia caste. He further admitted that he did not make any enquiries about the parents or the place of residence of Elizabeth, mother of the respondent. He further admits at page 87 of the Paperbook that in 1978 he was taken by Shri Dharmak as chief guest in the conference of Katia Samaj. A suggestion was made to him that he was present when the Katia community honoured the respondent on her victory in the election. Reading in between the lines of his evidence it is clear that he was fully aware that the respondent had been reconverted to Hinduism and had been accepted by the Katia community.49. On a full and complete appraisal of the oral and documentary evidence, the following conclusions are inevitable :(1) That the respondent was born of Christian parents and was educated in various schools or institutions where she was known as a Christian,(2) That 3-4 years before the election, the respondent was reconverted to Hinduism and married Jai Prakash Shalwar, a member of the Katia caste, and also performed the Shudhikaran ceremony,(3) That she was not accepted but also welcomed by the important members, including the President and Vice-President, of the community,(4) There is no evidence to show that there was any bar under the Christian religion which could have prevented her from reconverting herself to Hinduism,(5) That there was no evidence to show that even her parents had been Christian from generation to generation.50. In these circumstances, therefore, this case fulfils the conditions required for being reconverted to Hinduism from Christianity in order to revive the original caste.51. Under clause (3) of the 1950 Order only two conditions are required for being eligibile for election to a reserved constituency -(a) that the candidate should not profess a religion different from the Hindu or the Sikh religion, and(b) that the candidate is a member of scheduled caste as shown in the schedules.52. In the instant case, it is not disputed that the Katia caste is mentioned as a scheduled caste in Part IX of the 1950 Order and shown at serial number 29.53. Having regard to the circumstances discussed above, it cannot be said that at the time when the respondent filed her nomination papers, she was not a member of the Katia caste. | 0[ds]17. In our opinion, there is one aspect which does not appear to have been dealt with by any of the case discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies ? In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in Christian family ? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to (sic) a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Perhaps, this factor was present in the mind of Bhagwati, J., who delivered the leading judgment in a later decision of this Court G. M. Arumugham v. S. Rajagopal ((1976) 3 SCR 82 : (1976) 1 SCC 863 ) where, speaking for the Court, he made the following observations : (SCC pp. 871, 872, 875; paras 9, 10 andis sufficient to state that originally there were only four main castes, but gradually castes and sub-castes multiplicity as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity .... But that immediately raises the question : what is a caste ? When we speak of a caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian social scene ... A caste is more a social combination than a religious group.In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mastery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. Whether or not the revival of the caste depends on the will and discretion of the members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case there is overwhelming evidence to show that the respondent was accepted by the community of her original Katia caste. Even so, if the fact of the acceptance by the members of the community is made a condition precedent to the revival of the caste, it would lead to grave consequences and unnecessary exploitation, sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognised documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community, otherwise in normal circumstances the case would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said, i.e., whether it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here. | 0 | 9,153 | 1,001 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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herself to Hinduism voluntarily and with full publicity, making no secret of this fact. A letter appearing at page 22 of the Paperbook shows that she accepted Hindu religion with all its customs and rites voluntarily. The relevant part of the letter reads thus :I am prepared to own Hindu religion with all sincerity and to follow all its customs and rites.Today on November 6, 1976 I am fully major. Hence the above decision is of my own wherein no external interference exists.44. Immediately thereafter she was married to one Jai Prakash Shalwar and the marriage certificate dated November 14, 1976 fully corroborates this fact (page 24 of the Paperbook). The marriage certificate states that the marriage of Maya with Jai Prakash was performed on November 6, 1976 in Arya Samaj, Gorakhpur according to vedic rites. Another certificate issued by the Secretary of the Arya Samaj, Gorakhpur is also to the same effect. The aforesaid documents are amply corroborated by the oral evidence led by the respondent.45. The evidence of Darshanlal Dharmak deserves special mention because this witness was a prominent member and President of the Katia community for the last two-and-a half years. The witness goes on to state that the marriage was celebrated in the presence of 80 persons of his community, including elderly people and his presence at the marriage clearly indicates that the community had fully accepted the respondent back to her caste. The marriage was followed by a reception 3-4 days later which was attended by this witness also and at that time nobody raised any objection about Maya as not belonging to the Katia community. The witness further states that he had gone to the house of the respondent and that members of the community had come to celebrate the birthday of her child.46. It would appear from the evidence of Bhaiyalal Nag, another witness produced by the respondent, that there was a Katia Samaj Sanstha in Madhya Pradesh which was registered under the Societies Registration Act and the witness was the Vice-President of this organisation. He states that Jai Prakash was known to him and belonged to his caste and that he was married to Maya Devi. He further states that no objection was raised in the Organisation about this marriage. He further stated that Maya Devi had been attending number of marriages in his caste. He makes a very stark statement which is fully supported by the Abhinandan Patra and his statement may be extracted thus :We mentioned her in this Abhinandan Patra as belonging to Katia caste as we were proud as she was the first M.L.A. in our caste.47. Ex. D-1A is the Abhinandan Patra given to Maya Devi some time in the year 1977-78, i.e. 3 years before the elections. Furthermore, there is the evidence of Keshav Prasad Pathak which is rather important. His evidence shows that a joint application was made by the respondent and her husband regarding their consent to the marriage. He further stated that before the parties are married, if either of them is not a Hindu then he is first converted to Hinduism (Shudhikaran) by religious rites performed in accordance with the Arya Samaj rites. He proves the applications given by the respondent and her husband (Ex. P-8 and 9). He has further stated that the marriage ceremony is usually performed before the members of the Executive Committee of the Arya Samaj. He further defines the term Shudhikaran to mean "Convert a non-Hindu to Hinduism". He goes on to say that the marriage was celebrated at the Arya Samaj according to vedic ceremony which included Saptapadi and Havan.48. The appellant himself in his statement admitted that in Jabalpur there are five-six thousands people of Katia caste. He further admitted that he did not make any enquiries about the parents or the place of residence of Elizabeth, mother of the respondent. He further admits at page 87 of the Paperbook that in 1978 he was taken by Shri Dharmak as chief guest in the conference of Katia Samaj. A suggestion was made to him that he was present when the Katia community honoured the respondent on her victory in the election. Reading in between the lines of his evidence it is clear that he was fully aware that the respondent had been reconverted to Hinduism and had been accepted by the Katia community.49. On a full and complete appraisal of the oral and documentary evidence, the following conclusions are inevitable :(1) That the respondent was born of Christian parents and was educated in various schools or institutions where she was known as a Christian,(2) That 3-4 years before the election, the respondent was reconverted to Hinduism and married Jai Prakash Shalwar, a member of the Katia caste, and also performed the Shudhikaran ceremony,(3) That she was not accepted but also welcomed by the important members, including the President and Vice-President, of the community,(4) There is no evidence to show that there was any bar under the Christian religion which could have prevented her from reconverting herself to Hinduism,(5) That there was no evidence to show that even her parents had been Christian from generation to generation.50. In these circumstances, therefore, this case fulfils the conditions required for being reconverted to Hinduism from Christianity in order to revive the original caste.51. Under clause (3) of the 1950 Order only two conditions are required for being eligibile for election to a reserved constituency -(a) that the candidate should not profess a religion different from the Hindu or the Sikh religion, and(b) that the candidate is a member of scheduled caste as shown in the schedules.52. In the instant case, it is not disputed that the Katia caste is mentioned as a scheduled caste in Part IX of the 1950 Order and shown at serial number 29.53. Having regard to the circumstances discussed above, it cannot be said that at the time when the respondent filed her nomination papers, she was not a member of the Katia caste.
### Response:
0
### Explanation:
17. In our opinion, there is one aspect which does not appear to have been dealt with by any of the case discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies ? In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in Christian family ? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to (sic) a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Perhaps, this factor was present in the mind of Bhagwati, J., who delivered the leading judgment in a later decision of this Court G. M. Arumugham v. S. Rajagopal ((1976) 3 SCR 82 : (1976) 1 SCC 863 ) where, speaking for the Court, he made the following observations : (SCC pp. 871, 872, 875; paras 9, 10 andis sufficient to state that originally there were only four main castes, but gradually castes and sub-castes multiplicity as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity .... But that immediately raises the question : what is a caste ? When we speak of a caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian social scene ... A caste is more a social combination than a religious group.In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mastery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. Whether or not the revival of the caste depends on the will and discretion of the members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case there is overwhelming evidence to show that the respondent was accepted by the community of her original Katia caste. Even so, if the fact of the acceptance by the members of the community is made a condition precedent to the revival of the caste, it would lead to grave consequences and unnecessary exploitation, sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognised documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community, otherwise in normal circumstances the case would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said, i.e., whether it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here.
|
Mahavir Prasad Gupta Vs. State of National Capital Territory of Delhi | alleging offences under Sections 418, 420, 423, 469, 504 and 120-B IPC. This Court held as follows : "8. In the case of State of Haryana v. Bhajan Lal, 1992 Supp(1) SCC 335, this Court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down any precise, clearly-defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised :""102. (1) Where the allegation made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for preceding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 9. In the decision this Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised "very sparingly and with circumspection and that too in the rarest of rare cases". xxx xxx xxx xxx xxx xxx 16." Judged on the touchstone of the principles noted above, the present case, in our considered view warranties interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120-B are concerned even the basic allegation making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana v. Bhajan Lal and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All the respondent 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make respondent 2 part with the property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of the process of the Court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same." Undoubtedly there could be interference in rarest or rare cases. However, one which would be when the complaint itself does not disclose any offence. In this case, as set out hereinabove, the complaint merely pointed out that the goods had been entrusted to the petitioners and that the same, even though accepted and even though Lorry Receipt had been issued, were not delivered and were withheld. On those facts Police had to enquire whether there was any criminal breach of trust and forgery as claimed. On these facts it could not be said that the Police should not have registered an FIR and/or to make an enquiry. 11. In our view, the High Court was right in dismissing the petition. No case has been made out for interference at all. As the petitioners have stalled enquiries for the last over 2-1/2 years, we direct that the Police should now complete the investigation as expeditiously as possible and submit the final report in accordance with law. It is clarified that the Police are at liberty to seize and/or attach the goods and remove the same from the godown of the petitioners to some other place, if they so choose. | 0[ds]11. In our view, the High Court was right in dismissing the petition. No case has been made out for interference at all. As the petitioners have stalled enquiries for the last overyears, we direct that the Police should now complete the investigation as expeditiously as possible and submit the final report in accordance with law. It is clarified that the Police are at liberty to seize and/or attach the goods and remove the same from the godown of the petitioners to some other place, if they so choose. | 0 | 3,233 | 101 | ### 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:
alleging offences under Sections 418, 420, 423, 469, 504 and 120-B IPC. This Court held as follows : "8. In the case of State of Haryana v. Bhajan Lal, 1992 Supp(1) SCC 335, this Court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down any precise, clearly-defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised :""102. (1) Where the allegation made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for preceding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 9. In the decision this Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised "very sparingly and with circumspection and that too in the rarest of rare cases". xxx xxx xxx xxx xxx xxx 16." Judged on the touchstone of the principles noted above, the present case, in our considered view warranties interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120-B are concerned even the basic allegation making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana v. Bhajan Lal and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All the respondent 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make respondent 2 part with the property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of the process of the Court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same." Undoubtedly there could be interference in rarest or rare cases. However, one which would be when the complaint itself does not disclose any offence. In this case, as set out hereinabove, the complaint merely pointed out that the goods had been entrusted to the petitioners and that the same, even though accepted and even though Lorry Receipt had been issued, were not delivered and were withheld. On those facts Police had to enquire whether there was any criminal breach of trust and forgery as claimed. On these facts it could not be said that the Police should not have registered an FIR and/or to make an enquiry. 11. In our view, the High Court was right in dismissing the petition. No case has been made out for interference at all. As the petitioners have stalled enquiries for the last over 2-1/2 years, we direct that the Police should now complete the investigation as expeditiously as possible and submit the final report in accordance with law. It is clarified that the Police are at liberty to seize and/or attach the goods and remove the same from the godown of the petitioners to some other place, if they so choose.
### Response:
0
### Explanation:
11. In our view, the High Court was right in dismissing the petition. No case has been made out for interference at all. As the petitioners have stalled enquiries for the last overyears, we direct that the Police should now complete the investigation as expeditiously as possible and submit the final report in accordance with law. It is clarified that the Police are at liberty to seize and/or attach the goods and remove the same from the godown of the petitioners to some other place, if they so choose.
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KARBHARI AND OTHERS Vs. DEEPAK V. CHENGEDE AND OTHERS | alia, that the Election Programme and the stipulation therein were contrary to the provisions of the Constitution of the Sabha and as such the Programme deserved to be quashed. The Industrial Court, Ahmednagar by its order dated 05.06.2018 accepted the challenge and while quashing the Election Programme, it directed as under:?The Election Officer shall conduct the election as per constitution without insisting for undertaking-wise election for the post of Vice-President and Secretary. There shall be no reservation for women.? 9. The appellants who are also members of the Sabha, challenged the decision of the Industrial Court, Ahmednagar by filing Writ Petition No.5599 of 2018 in the High Court which by its judgment and order presently under appeal found that no interference was called for and dismissed the writ petition. 10. In this appeal challenging the correctness of the decision of the High Court, we heard Mr. B.H. Marlapalle, learned Senior Counsel for the appellants and Mr. Vinay Navare, learned Senior Counsel for the respondents. 11. The order of the Election Officer contemplated following stipulations which were not part of the Constitution of the Sabha: (a) Unit wise reservation to the posts of Vice-Presidents and Secretaries whereunder all seven units would elect Vice-Presidents and Secretaries independently and the Electoral College in that behalf would be each of those units and not the General Body of members. (b) Certain reservation was stipulated for women, namely, eight seats were reserved for women. Though the Electoral College was supposed to be members from the concerned unit or branch, it was not clear how seven units could be electing eight women executive members. 12. Mr. Marlapalle, learned Senior Counsel fairly accepted that the stipulations made by the Election Officer carving out Electoral Colleges and concept of reservation as mentioned above were not consistent with the Constitution of the Sabha. He however submitted that the idea of having separate Electoral Colleges for each of those seven units would give adequate representation to every unit. According to him, though the Constitution of the Sabha may be completely silent insofar as those issues are concerned, there was no prohibition to adopt such ideas, which in any case, were completely laudable and reasonable. It was submitted by him that in certain cases what is not prohibited can certainly be permitted. He relied upon the decision of this Court reported in Laxmidas Dayabhai Kabarwala v. Nanabhai Chunilal Kabarwala (1964) 2 SCR 567 at 578 , the relevant portion being:-?11. The question has therefore to be considered on principle as to whether there is anything in law — statutory or otherwise — which precludes a court from treating a counter-claim as a plaint in a cross-suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counterclaim which is to be treated as a cross-suit might not conform to all these requirements but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others4 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations:reasonable manner.? 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others (1983) 1 SCC 228 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations: ?7. ……… The right to apply for winding up of a company being a creature of statute, none other than those on whom the right to present a winding up petition is conferred by the statute can make an application for winding up a company and no such right having been conferred on the workers, they cannot prefer a winding up petition against a company. But from this exclusion of the workers from the right to present a winding up petition, it does not follow as a necessary consequence that the workers have no right to appear and be heard in a winding up petition filed by one or more of the persons specified in Section 439.? 14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement such idea 15. The Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants. | 0[ds]14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement suchThe Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants. | 0 | 2,177 | 298 | ### 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:
alia, that the Election Programme and the stipulation therein were contrary to the provisions of the Constitution of the Sabha and as such the Programme deserved to be quashed. The Industrial Court, Ahmednagar by its order dated 05.06.2018 accepted the challenge and while quashing the Election Programme, it directed as under:?The Election Officer shall conduct the election as per constitution without insisting for undertaking-wise election for the post of Vice-President and Secretary. There shall be no reservation for women.? 9. The appellants who are also members of the Sabha, challenged the decision of the Industrial Court, Ahmednagar by filing Writ Petition No.5599 of 2018 in the High Court which by its judgment and order presently under appeal found that no interference was called for and dismissed the writ petition. 10. In this appeal challenging the correctness of the decision of the High Court, we heard Mr. B.H. Marlapalle, learned Senior Counsel for the appellants and Mr. Vinay Navare, learned Senior Counsel for the respondents. 11. The order of the Election Officer contemplated following stipulations which were not part of the Constitution of the Sabha: (a) Unit wise reservation to the posts of Vice-Presidents and Secretaries whereunder all seven units would elect Vice-Presidents and Secretaries independently and the Electoral College in that behalf would be each of those units and not the General Body of members. (b) Certain reservation was stipulated for women, namely, eight seats were reserved for women. Though the Electoral College was supposed to be members from the concerned unit or branch, it was not clear how seven units could be electing eight women executive members. 12. Mr. Marlapalle, learned Senior Counsel fairly accepted that the stipulations made by the Election Officer carving out Electoral Colleges and concept of reservation as mentioned above were not consistent with the Constitution of the Sabha. He however submitted that the idea of having separate Electoral Colleges for each of those seven units would give adequate representation to every unit. According to him, though the Constitution of the Sabha may be completely silent insofar as those issues are concerned, there was no prohibition to adopt such ideas, which in any case, were completely laudable and reasonable. It was submitted by him that in certain cases what is not prohibited can certainly be permitted. He relied upon the decision of this Court reported in Laxmidas Dayabhai Kabarwala v. Nanabhai Chunilal Kabarwala (1964) 2 SCR 567 at 578 , the relevant portion being:-?11. The question has therefore to be considered on principle as to whether there is anything in law — statutory or otherwise — which precludes a court from treating a counter-claim as a plaint in a cross-suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counterclaim which is to be treated as a cross-suit might not conform to all these requirements but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others4 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations:reasonable manner.? 13. Referring to the decision of this Court reported in National Textile Workers? Union and others v. P.R. Ramakrishnan and others (1983) 1 SCC 228 where the workers were given a right to be heard in winding up petition, Mr. Marlapalle, learned Senior Counsel relied upon the following observations: ?7. ……… The right to apply for winding up of a company being a creature of statute, none other than those on whom the right to present a winding up petition is conferred by the statute can make an application for winding up a company and no such right having been conferred on the workers, they cannot prefer a winding up petition against a company. But from this exclusion of the workers from the right to present a winding up petition, it does not follow as a necessary consequence that the workers have no right to appear and be heard in a winding up petition filed by one or more of the persons specified in Section 439.? 14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement such idea 15. The Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants.
### Response:
0
### Explanation:
14. The facts and the circumstances in which the above-mentioned observations were made by this Court were completely distinct and different. The first case concerned the power of the Court to grant adequate relief while in the second case the issue was if in the ultimate analysis the company was to be wound up, the workers would be adversely affected and as such whether they should be given a right of hearing in winding up proceedings or not. Those cases were of completely different dimension, whereas we are presently concerned with the issue whether an election to a union of workers has to be in accordance with its constitution or otherwise. However laudable may be the objectives, the Election Officer could not have gone beyond the confines of the Constitution of the Sabha and could not have imported ideas which were not rooted in the Constitution of the Sabha. It may be that as a matter of practice, various panels which contested elections to the Sabha, were ensuring that there be equitable distribution and every unit was adequately represented. But that idea cannot be implemented through Election Programme. The Programme must be completely in accord with the governing Statute and the Constitution of the Sabha. In the absence of the idea of unit wise representation and reservation emanating either from the governing Statute or the Constitution of the Sabha, the Election Programme cannot by itself, invent and implement suchThe Industrial Court as well as the High Court were completely justified in taking the view as aforesaid. We, therefore, find no merit in the submissions advanced by the learned Senior Counsel for the appellants.
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Union of India Vs. Jiwajirao Sugar Company Limited and Others | 1. Leave granted. 2. The challenge in Civil Appeal No. ... of 1997 [arising out of SLP (C) No. 7764 of 1981] and the connected matters is to the judgment of the High Court dated 3-4-1981 in Miscellaneous Petition No. 707 of 1978. Both sides are partly aggrieved by the judgment. The challenge in the appeals filed by the owners of the sugar factories is only to the construction of clause 3(1)(e) of the Sugarcane (Control) Order, 1966 while the challenge by the Union of India is on two other points relating to the method of rounding off and the rebate which has been rejected by the High Court. There is nothing shown to us in the appeals of the Union of India to suggest any infirmity in the High Courts order on the two points of rounding off and rebate. The appeals of Union of India must, therefore, fail3. The only surviving question for decision is in the appeals of the owners of the sugar factories relating to the meaning of the expression "the recovery of the sugar from sugarcane" in clause 3(1)(e). The view taken by the High Court following the earlier decision is that the best period for crushing of sugarcane from the point of view of yield of sugar is admittedly from December to March and therefore, the percentage of recovery of sugar from sugarcane during that period ought to be taken into account in fixation of minimum price of sugarcane payable by the producers of sugar to the cane-growers in accordance with clause 3. Learned counsel for the appellant-factory owner placed reliance on a decision of the Allahabad High Court in Shervani Sugar Syndicate Ltd. v. Union of India 1979 AIR(all) 394] in support of his contention that the average percentage of recovery of sugar for the entire crushing season should be taken into account and not merely the period from December to March when the yield is the maximum. It was submitted that there are no words of limitation in clause 3(1)(e) to restrict the period only to that during which the yield of sugar was maximum from the sugarcane. We are unable to accept this contention. We are in agreement with the reasons given by the High Court for taking the view that the period from December to March, when the yield of sugar is maximum, could be taken into account in price fixation and that such an opinion of the Central Government cannot be said to be irrelevant or unreasonable. This is so because clause 3(1)(e) of the order does not specifically provide that the entire crushing season or year should be taken into account for the purpose of this provision and moreover the construction made by the High Court is beneficial to the cane-grower which promotes the object of the enactment of that provision. It cannot be said that the view taken by the High Court is not a permissible view on the language used in clause 3(1)(e). That being so, even if the other construction, suggested by the learned counsel for factory owners, be a possible construction of the provision, the former has to be preferred because it promotes the object of the provision being beneficial to the cane-growers as against the factory owners. This alone is sufficient to affirm the view taken by the High Court. We find no ground to interfere even in the. appeals filed by the factory owners. Consequently, all these appeals - of the Union of India as well as those of the factory owners - are dismissed. No costsIAs Nos. 2-4 of 1997 in CAs Nos. 2217-2219 of 1979 | 0[ds]We are unable to accept this contention. We are in agreement with the reasons given by the High Court for taking the view that the period from December to March, when the yield of sugar is maximum, could be taken into account in price fixation and that such an opinion of the Central Government cannot be said to be irrelevant or unreasonable. This is so because clause 3(1)(e) of the order does not specifically provide that the entire crushing season or year should be taken into account for the purpose of this provision and moreover the construction made by the High Court is beneficial to thewhich promotes the object of the enactment of that provision. It cannot be said that the view taken by the High Court is not a permissible view on the language used in clause 3(1)(e). That being so, even if the other construction, suggested by the learned counsel for factory owners, be a possible construction of the provision, the former has to be preferred because it promotes the object of the provision being beneficial to theas against the factory owners. This alone is sufficient to affirm the view taken by the High Court. We find no ground to interfere even in the. appeals filed by the factory owners. Consequently, all these appealsof the Union of India as well as those of the factory ownersare dismissed. No costsIAs Nos.of 1997 in CAs Nos. | 0 | 686 | 271 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. Leave granted. 2. The challenge in Civil Appeal No. ... of 1997 [arising out of SLP (C) No. 7764 of 1981] and the connected matters is to the judgment of the High Court dated 3-4-1981 in Miscellaneous Petition No. 707 of 1978. Both sides are partly aggrieved by the judgment. The challenge in the appeals filed by the owners of the sugar factories is only to the construction of clause 3(1)(e) of the Sugarcane (Control) Order, 1966 while the challenge by the Union of India is on two other points relating to the method of rounding off and the rebate which has been rejected by the High Court. There is nothing shown to us in the appeals of the Union of India to suggest any infirmity in the High Courts order on the two points of rounding off and rebate. The appeals of Union of India must, therefore, fail3. The only surviving question for decision is in the appeals of the owners of the sugar factories relating to the meaning of the expression "the recovery of the sugar from sugarcane" in clause 3(1)(e). The view taken by the High Court following the earlier decision is that the best period for crushing of sugarcane from the point of view of yield of sugar is admittedly from December to March and therefore, the percentage of recovery of sugar from sugarcane during that period ought to be taken into account in fixation of minimum price of sugarcane payable by the producers of sugar to the cane-growers in accordance with clause 3. Learned counsel for the appellant-factory owner placed reliance on a decision of the Allahabad High Court in Shervani Sugar Syndicate Ltd. v. Union of India 1979 AIR(all) 394] in support of his contention that the average percentage of recovery of sugar for the entire crushing season should be taken into account and not merely the period from December to March when the yield is the maximum. It was submitted that there are no words of limitation in clause 3(1)(e) to restrict the period only to that during which the yield of sugar was maximum from the sugarcane. We are unable to accept this contention. We are in agreement with the reasons given by the High Court for taking the view that the period from December to March, when the yield of sugar is maximum, could be taken into account in price fixation and that such an opinion of the Central Government cannot be said to be irrelevant or unreasonable. This is so because clause 3(1)(e) of the order does not specifically provide that the entire crushing season or year should be taken into account for the purpose of this provision and moreover the construction made by the High Court is beneficial to the cane-grower which promotes the object of the enactment of that provision. It cannot be said that the view taken by the High Court is not a permissible view on the language used in clause 3(1)(e). That being so, even if the other construction, suggested by the learned counsel for factory owners, be a possible construction of the provision, the former has to be preferred because it promotes the object of the provision being beneficial to the cane-growers as against the factory owners. This alone is sufficient to affirm the view taken by the High Court. We find no ground to interfere even in the. appeals filed by the factory owners. Consequently, all these appeals - of the Union of India as well as those of the factory owners - are dismissed. No costsIAs Nos. 2-4 of 1997 in CAs Nos. 2217-2219 of 1979
### Response:
0
### Explanation:
We are unable to accept this contention. We are in agreement with the reasons given by the High Court for taking the view that the period from December to March, when the yield of sugar is maximum, could be taken into account in price fixation and that such an opinion of the Central Government cannot be said to be irrelevant or unreasonable. This is so because clause 3(1)(e) of the order does not specifically provide that the entire crushing season or year should be taken into account for the purpose of this provision and moreover the construction made by the High Court is beneficial to thewhich promotes the object of the enactment of that provision. It cannot be said that the view taken by the High Court is not a permissible view on the language used in clause 3(1)(e). That being so, even if the other construction, suggested by the learned counsel for factory owners, be a possible construction of the provision, the former has to be preferred because it promotes the object of the provision being beneficial to theas against the factory owners. This alone is sufficient to affirm the view taken by the High Court. We find no ground to interfere even in the. appeals filed by the factory owners. Consequently, all these appealsof the Union of India as well as those of the factory ownersare dismissed. No costsIAs Nos.of 1997 in CAs Nos.
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Hyundai Corporation & Another Vs. Oil and Natural Gas Corporation Ltd | Incorporated after reopening its assessments to tax under Section 148 of the Act. As a result, the sub-contractor became liable to pay various amounts by way of tax, both under Section 44BB and otherwise, inasmuch as they opted under a particular Circular of the Government of India dated July, 1987, to pay tax on the basis of the said Circular. Given this fact situation, disputes arose between the appellant and the respondent on the application of Clause 17.3 of the agreement. The appellant and the respondent went to arbitration under the Arbitration Act, 1940, which was before two learned Arbitrators, on the question whether the respondent was liable to reimburse the amounts paid by the appellant to its sub-contractor by way of tax inasmuch as, according to the appellant, a change in law had taken place after 25.3.1983 in that, from 1st April, 1983, Section 44BB was retrospectively brought in to tax various services in connection with off-shore exploration and drilling of mineral oils. Several issues were raised before the two learned Arbitrators, one of which was as to whether there was indeed a change of law, in that, tax had to be paid under Section 44BB for the first time with effect from 1st April, 1983. The two learned Arbitrators were of the opinion that, as the assessment orders indicated tax was indeed payable under Section 44BB, and that, therefore, Clause 17.3 would be squarely attracted on the facts of the case. However, they differed on the application of Clause 13.2.8 of the agreement. Whereas Shri D. Chandrashekhar, learned Arbitrator, by his award dated 10th March, 1999 stated that though Clause 17.3 did apply on the facts of the case, yet Clause 13.2.8 interdicted the payment of any amounts on account of the sub-contractors liablity. On the other hand, Justice D.M. Rege, learned Arbitrator, by his separate award dated April, 1999 agreed with Shri Chandrashekhar on all points except one, namely, the effect of Clause 13.2.8 on Clause 17.3. According to him, Clause 13.2.8 would not come in the way of ONGC having to pay amounts paid by the sub-contractor by way of tax because of a change in law. The learned Arbitrator held:"Firstly, the said Clause 13.2.8 is a part of Clause 13 dealing with Contract price payment/Discharge Certificate and was not connected with the subject covered by Clause 17.3 of the Contract on which the Claimants claim is based. Further looking to the fact that Clause 17.3 of the Contract was inserted subsequently only at the request of the Claimants while Clause 13.2.8 was already there, it appears that Clause 17.3 was intended to cover those extra costs incurred by the Claimants due to the change of law which were outside of and not covered by Clause 13.2.8 of the Contract. Even the reading of Clause 13.2.8 itself would show that it does not and would not cover the Claimants claim for compensation for extra costs under the said Clause 17.3 of the Contract."3. On this limited dispute, the Umpire, Retired Chief Justice Y.V. Chandrachud, delivered his award dated 20th March, 2002. In paragraph 20 of the said award, the learned Umpire stated:"The main question and, indeed, the only question which was pressed before me by learned Counsel for the parties, arises out of the provisions contained in Clause 17.3 of the SH Contract and the extension of the I.T. Act to the Continental Shelf of India and other Exclusive Economic Zones by the Notification dated March 31, 1983, issued by the Government of India, which is referred to in paragraph 9 above."4. However, instead of deciding this question, the learned Umpire went into a question already decided in favour of the appellant and arrived at a contrary conclusion, namely, that tax was not payable under Section 44BB at all but had in fact been paid pursuant to the Circular of the Central Government of July, 1987, and that this being the case, Clause 17.3 itself would not be attracted, as there was no change in law under which such tax had to be paid. The tax had to be paid in any case under the provisions of Sections 5 and 9 of the Income Tax Act and accordingly, the claim of the appellant was rejected. However, before concluding the award the learned Umpire held:"35. Before concluding the discussion on the aforesaid point, it would be useful to refer to clause 13.2.7 of the main Contract between the Claimants and the Respondents, it reads thus:"13.2.7. the Company shall not be responsible/obligated for making any payments or any other related obligations under this Contract to the Contractors sub-contractors/vendors. The contractor shall be fully liable and responsible for meeting all such obligations and all payments to be made to its sub-contractors/vendors and any other third party engaged by the Contractor in any way connected with the discharge of the contractors obligations under the contract and in any manner whatsoever". 35.1 Since clause 17.3 of the Contract is not attracted and since, consequently, the Claimants are not liable to indemnify MII in respect of the Income Tax for which a demand has been made on MII, Clause 13.2.7 extracted above, would squarely come into play. The "Company" that is to say, the Claimants, are not responsible or obligated to reimburse MII in respect of the aforesaid tax demand."5. It will be noticed on a perusal of the award of the Umpire, that a decision has been rendered on an issue which was never referred to the learned Umpire. The award was ultimately only on the said issue. In passing, the Umpire did refer to Clause 13.2.7, which was the only bone of contention left between the parties, but stated that since Clause 17.3 of the contract was not attracted, and since consequently the Claimants were not liable to indemnify the sub-contractor, Clause 13.2.7, would squarely come into play. From this it can be seen, that there was no independent reasoning or conclusion with regard to the applicability of Clause 13.2.7. | 1[ds]5. It will be noticed on a perusal of the award of the Umpire, that a decision has been rendered on an issue which was never referred to the learned Umpire. The award was ultimately only on the said issue. In passing, the Umpire did refer to Clause 13.2.7, which was the only bone of contention left between the parties, but stated that since Clause 17.3 of the contract was not attracted, and since consequently the Claimants were not liable to indemnify theClause 13.2.7, would squarely come into play. From this it can be seen, that there was no independent reasoning or conclusion with regard to the applicability of Clause 13.2.7. | 1 | 1,685 | 127 | ### 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:
Incorporated after reopening its assessments to tax under Section 148 of the Act. As a result, the sub-contractor became liable to pay various amounts by way of tax, both under Section 44BB and otherwise, inasmuch as they opted under a particular Circular of the Government of India dated July, 1987, to pay tax on the basis of the said Circular. Given this fact situation, disputes arose between the appellant and the respondent on the application of Clause 17.3 of the agreement. The appellant and the respondent went to arbitration under the Arbitration Act, 1940, which was before two learned Arbitrators, on the question whether the respondent was liable to reimburse the amounts paid by the appellant to its sub-contractor by way of tax inasmuch as, according to the appellant, a change in law had taken place after 25.3.1983 in that, from 1st April, 1983, Section 44BB was retrospectively brought in to tax various services in connection with off-shore exploration and drilling of mineral oils. Several issues were raised before the two learned Arbitrators, one of which was as to whether there was indeed a change of law, in that, tax had to be paid under Section 44BB for the first time with effect from 1st April, 1983. The two learned Arbitrators were of the opinion that, as the assessment orders indicated tax was indeed payable under Section 44BB, and that, therefore, Clause 17.3 would be squarely attracted on the facts of the case. However, they differed on the application of Clause 13.2.8 of the agreement. Whereas Shri D. Chandrashekhar, learned Arbitrator, by his award dated 10th March, 1999 stated that though Clause 17.3 did apply on the facts of the case, yet Clause 13.2.8 interdicted the payment of any amounts on account of the sub-contractors liablity. On the other hand, Justice D.M. Rege, learned Arbitrator, by his separate award dated April, 1999 agreed with Shri Chandrashekhar on all points except one, namely, the effect of Clause 13.2.8 on Clause 17.3. According to him, Clause 13.2.8 would not come in the way of ONGC having to pay amounts paid by the sub-contractor by way of tax because of a change in law. The learned Arbitrator held:"Firstly, the said Clause 13.2.8 is a part of Clause 13 dealing with Contract price payment/Discharge Certificate and was not connected with the subject covered by Clause 17.3 of the Contract on which the Claimants claim is based. Further looking to the fact that Clause 17.3 of the Contract was inserted subsequently only at the request of the Claimants while Clause 13.2.8 was already there, it appears that Clause 17.3 was intended to cover those extra costs incurred by the Claimants due to the change of law which were outside of and not covered by Clause 13.2.8 of the Contract. Even the reading of Clause 13.2.8 itself would show that it does not and would not cover the Claimants claim for compensation for extra costs under the said Clause 17.3 of the Contract."3. On this limited dispute, the Umpire, Retired Chief Justice Y.V. Chandrachud, delivered his award dated 20th March, 2002. In paragraph 20 of the said award, the learned Umpire stated:"The main question and, indeed, the only question which was pressed before me by learned Counsel for the parties, arises out of the provisions contained in Clause 17.3 of the SH Contract and the extension of the I.T. Act to the Continental Shelf of India and other Exclusive Economic Zones by the Notification dated March 31, 1983, issued by the Government of India, which is referred to in paragraph 9 above."4. However, instead of deciding this question, the learned Umpire went into a question already decided in favour of the appellant and arrived at a contrary conclusion, namely, that tax was not payable under Section 44BB at all but had in fact been paid pursuant to the Circular of the Central Government of July, 1987, and that this being the case, Clause 17.3 itself would not be attracted, as there was no change in law under which such tax had to be paid. The tax had to be paid in any case under the provisions of Sections 5 and 9 of the Income Tax Act and accordingly, the claim of the appellant was rejected. However, before concluding the award the learned Umpire held:"35. Before concluding the discussion on the aforesaid point, it would be useful to refer to clause 13.2.7 of the main Contract between the Claimants and the Respondents, it reads thus:"13.2.7. the Company shall not be responsible/obligated for making any payments or any other related obligations under this Contract to the Contractors sub-contractors/vendors. The contractor shall be fully liable and responsible for meeting all such obligations and all payments to be made to its sub-contractors/vendors and any other third party engaged by the Contractor in any way connected with the discharge of the contractors obligations under the contract and in any manner whatsoever". 35.1 Since clause 17.3 of the Contract is not attracted and since, consequently, the Claimants are not liable to indemnify MII in respect of the Income Tax for which a demand has been made on MII, Clause 13.2.7 extracted above, would squarely come into play. The "Company" that is to say, the Claimants, are not responsible or obligated to reimburse MII in respect of the aforesaid tax demand."5. It will be noticed on a perusal of the award of the Umpire, that a decision has been rendered on an issue which was never referred to the learned Umpire. The award was ultimately only on the said issue. In passing, the Umpire did refer to Clause 13.2.7, which was the only bone of contention left between the parties, but stated that since Clause 17.3 of the contract was not attracted, and since consequently the Claimants were not liable to indemnify the sub-contractor, Clause 13.2.7, would squarely come into play. From this it can be seen, that there was no independent reasoning or conclusion with regard to the applicability of Clause 13.2.7.
### Response:
1
### Explanation:
5. It will be noticed on a perusal of the award of the Umpire, that a decision has been rendered on an issue which was never referred to the learned Umpire. The award was ultimately only on the said issue. In passing, the Umpire did refer to Clause 13.2.7, which was the only bone of contention left between the parties, but stated that since Clause 17.3 of the contract was not attracted, and since consequently the Claimants were not liable to indemnify theClause 13.2.7, would squarely come into play. From this it can be seen, that there was no independent reasoning or conclusion with regard to the applicability of Clause 13.2.7.
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Common Cause & Others Vs. Union of India & Others | but must appear to have been conducted in a fair manner. The fact that Mr. Sinha met some of the accused persons without the investigating officer or the investigating team being present disturbs us with regard to the fairness of the investigations. This is all the more so if we keep in mind the fact that in the 2G scam investigations, this Court had concluded in its order dated 20th November, 2011 that Mr. Ranjit Sinha should not interfere in the investigation and prosecution of the case relating to the 2G spectrum allocation and to recuse himself from the case. That an SIT was not ordered in the 2G spectrum case is not relevant. A view was taken that Mr. Sinha should be directed to not interfere in the investigations in that case and that, coupled with his meeting accused persons in the Coal Block Allocation case without the investigating officer being present, is enough to persuade us that some further inquiry is necessary to ensure that the investigations have been fair in the coal block allocation cases where Mr. Sinha has had one or more meetings with one or more accused persons. 37. Learned counsel appearing for the CBI passionately submitted that any adverse order that we may pass in this regard would irreparably damage the credibility of the CBI. In our opinion this argument is fallacious. If an independent inquiry shows that the CBI has acted fairly, it will enhance its institutional credibility and its image. On the other hand, if the independent inquiry shows that Mr. Ranjit Sinha managed to influence some specific investigations in the Coal Block Allocations case, it will serve the larger public interest and will enable the CBI to take appropriate corrective and remedial measures. Either way, through an independent inquiry the CBI will be the beneficiary rather than the loser. 38. While opposing IA No. 13/2014 and supporting Crl. MP No. 387/2015 Mr. Vikas Singh relied upon Perumal v. Janaki (2014) 5 SCC 377 )to contend that when a palpably false statement is made for extraneous reasons, it is an appropriate case for the exercise of jurisdiction under Section 195 of the Code of Criminal Procedure 1973 (for short the Code).39. Similarly, reference was made to State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. (2011) 7 SCC 639 )where also this Court observed that it is a settled proposition of law that a false statement made in Court or in the pleadings to intentionally mislead the Court and to obtain a favourable order amounts to criminal contempt as it tends to impede the administration of justice. 40. On the other hand, Mr. Prashant Bhushan referred to Indirect Tax Practitioners Association v. R.K.Jain (2010) 8 SCC 281 )with regard to the growing acceptance of the phenomenon of a whistle blower. This Court observed that the respondent in that case was the whistle blower who had tried to highlight the malfunctioning of an important institution established for dealing with cases involving the revenue of the State and there was no reason to silence such a person by invoking the contempt powers of the Court under the Constitution or the Contempt of Courts Act, 1971. 41. Though the submissions made by Mr. Sinha’s learned counsel on the contents of his application were limited, the oral submissions spread over a larger canvas. It is submitted by Mr. Vikas Singh that Mr. Prashant Bhushan, Common Cause and Mr. Kamal Kant Jaswal have not only committed perjury but are also guilty of contempt of Court and additionally Mr. Prashant Bhushan has violated the provisions of the Official Secrets Act, 1923 by placing on record the official notes with regard to the case of the Dardas. We have considered Mr. Sinha’s application from all these angles.42. In our opinion, the submissions made by Mr. Vikas Singh in this regard do not deserve acceptance. It is true that this Court had required the Director, CBI to ensure, by its order dated 8th May, 2013 that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistle blower particularly when his or her action is in public interest. It is another matter if the whistle blower uses the documents for a purpose that is outrageous or that may damage the public interest. In that event, it would be permissible for this Court or an appropriate Court to take action against the whistle blower, if he or she is identified. However, the present case is not of any such category. The whistle blower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by Mr. Ranjit Sinha to scuttle the investigations into the affairs of the Dardas or others in the Coal Block Allocation case. As mentioned above, we are not considering whether the file notes actually disclose an attempt by Mr. Sinha to scuttle the investigations. All that is of relevance is whether the disclosure by the whistle blower was mala fide or not. We are of the opinion that the disclosures made by the whistle blower were intended to be in public interest.43. In these circumstances, it is difficult to hold that Mr. Prashant Bhushan or Common Cause or Mr. Kamal Kant Jaswal had any intention to mislead this Court in any manner, nor do we agree that they have perjured themselves. The file notes speak for themselves and any interpretation, even an allegedly twisted interpretation said to have been given to them, cannot fall within the realm of perjury.44. As far as the allegation that there has been a violation of the provisions of the Official Secrets Act, 1923 is concerned, we are of the opinion that the file notes in this case cannot be described as an ‘official secret’ for the purposes of prosecuting Mr. Prashant Bhushan. | 0[ds]29. We are of the opinion that it is not at all necessary for us, nor is it advisable at this stage, to enter the thicket of allegations made by Common Cause with regard to the investigations relating to the Dardas or the alleged attempt by Mr. Ranjit Sinha to scuttle the investigations with regard to one or more of the accused persons in that case. What is of greater importance and what has caused us considerable concern is that neither Mr. Ranjit Sinha nor the CBI denies that Mr. Ranjit Sinha had met some persons, including the Dardas, who are accused of criminality in the Coal Block Allocations case without the investigating officer or the investigating team beingview was taken that Mr. Sinha should be directed to not interfere in the investigations in that case and that, coupled with his meeting accused persons in the Coal Block Allocation case without the investigating officer being present, is enough to persuade us that some further inquiry is necessary to ensure that the investigations have been fair in the coal block allocation cases where Mr. Sinha has had one or more meetings with one or more accusedour opinion this argument is fallacious. If an independent inquiry shows that the CBI has acted fairly, it will enhance its institutional credibility and its image.Though the submissions made by Mr.learned counsel on the contents of his application were limited, the oral submissions spread over a larger canvas. It is submitted by Mr. Vikas Singh that Mr. Prashant Bhushan, Common Cause and Mr. Kamal Kant Jaswal have not only committed perjury but are also guilty of contempt of Court and additionally Mr. Prashant Bhushan has violated the provisions of the Official Secrets Act, 1923 by placing on record the official notes with regard to the case of the Dardas. We have considered Mr.application from all these angles.42. In our opinion, the submissions made by Mr. Vikas Singh in this regard do not deserve acceptance. It is true that this Court had required the Director, CBI to ensure, by its order dated 8th May, 2013 that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistle blower particularly when his or her action is in public interest. It is another matter if the whistle blower uses the documents for a purpose that is outrageous or that may damage the public interest. In that event, it would be permissible for this Court or an appropriate Court to take action against the whistle blower, if he or she is identified. However, the present case is not of any such category. The whistle blower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by Mr. Ranjit Sinha to scuttle the investigations into the affairs of the Dardas or others in the Coal Block Allocation case. As mentioned above, we are not considering whether the file notes actually disclose an attempt by Mr. Sinha to scuttle the investigations. All that is of relevance is whether the disclosure by the whistle blower was mala fide or not. We are of the opinion that the disclosures made by the whistle blower were intended to be in public interest.43. In these circumstances, it is difficult to hold that Mr. Prashant Bhushan or Common Cause or Mr. Kamal Kant Jaswal had any intention to mislead this Court in any manner, nor do we agree that they have perjured themselves. The file notes speak for themselves and any interpretation, even an allegedly twisted interpretation said to have been given to them, cannot fall within the realm of perjury.44. As far as the allegation that there has been a violation of the provisions of the Official Secrets Act, 1923 is concerned, we are of the opinion that the file notes in this case cannot be described as an ‘officialfor the purposes of prosecuting Mr. Prashant Bhushan. | 0 | 4,932 | 734 | ### 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:
but must appear to have been conducted in a fair manner. The fact that Mr. Sinha met some of the accused persons without the investigating officer or the investigating team being present disturbs us with regard to the fairness of the investigations. This is all the more so if we keep in mind the fact that in the 2G scam investigations, this Court had concluded in its order dated 20th November, 2011 that Mr. Ranjit Sinha should not interfere in the investigation and prosecution of the case relating to the 2G spectrum allocation and to recuse himself from the case. That an SIT was not ordered in the 2G spectrum case is not relevant. A view was taken that Mr. Sinha should be directed to not interfere in the investigations in that case and that, coupled with his meeting accused persons in the Coal Block Allocation case without the investigating officer being present, is enough to persuade us that some further inquiry is necessary to ensure that the investigations have been fair in the coal block allocation cases where Mr. Sinha has had one or more meetings with one or more accused persons. 37. Learned counsel appearing for the CBI passionately submitted that any adverse order that we may pass in this regard would irreparably damage the credibility of the CBI. In our opinion this argument is fallacious. If an independent inquiry shows that the CBI has acted fairly, it will enhance its institutional credibility and its image. On the other hand, if the independent inquiry shows that Mr. Ranjit Sinha managed to influence some specific investigations in the Coal Block Allocations case, it will serve the larger public interest and will enable the CBI to take appropriate corrective and remedial measures. Either way, through an independent inquiry the CBI will be the beneficiary rather than the loser. 38. While opposing IA No. 13/2014 and supporting Crl. MP No. 387/2015 Mr. Vikas Singh relied upon Perumal v. Janaki (2014) 5 SCC 377 )to contend that when a palpably false statement is made for extraneous reasons, it is an appropriate case for the exercise of jurisdiction under Section 195 of the Code of Criminal Procedure 1973 (for short the Code).39. Similarly, reference was made to State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. (2011) 7 SCC 639 )where also this Court observed that it is a settled proposition of law that a false statement made in Court or in the pleadings to intentionally mislead the Court and to obtain a favourable order amounts to criminal contempt as it tends to impede the administration of justice. 40. On the other hand, Mr. Prashant Bhushan referred to Indirect Tax Practitioners Association v. R.K.Jain (2010) 8 SCC 281 )with regard to the growing acceptance of the phenomenon of a whistle blower. This Court observed that the respondent in that case was the whistle blower who had tried to highlight the malfunctioning of an important institution established for dealing with cases involving the revenue of the State and there was no reason to silence such a person by invoking the contempt powers of the Court under the Constitution or the Contempt of Courts Act, 1971. 41. Though the submissions made by Mr. Sinha’s learned counsel on the contents of his application were limited, the oral submissions spread over a larger canvas. It is submitted by Mr. Vikas Singh that Mr. Prashant Bhushan, Common Cause and Mr. Kamal Kant Jaswal have not only committed perjury but are also guilty of contempt of Court and additionally Mr. Prashant Bhushan has violated the provisions of the Official Secrets Act, 1923 by placing on record the official notes with regard to the case of the Dardas. We have considered Mr. Sinha’s application from all these angles.42. In our opinion, the submissions made by Mr. Vikas Singh in this regard do not deserve acceptance. It is true that this Court had required the Director, CBI to ensure, by its order dated 8th May, 2013 that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistle blower particularly when his or her action is in public interest. It is another matter if the whistle blower uses the documents for a purpose that is outrageous or that may damage the public interest. In that event, it would be permissible for this Court or an appropriate Court to take action against the whistle blower, if he or she is identified. However, the present case is not of any such category. The whistle blower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by Mr. Ranjit Sinha to scuttle the investigations into the affairs of the Dardas or others in the Coal Block Allocation case. As mentioned above, we are not considering whether the file notes actually disclose an attempt by Mr. Sinha to scuttle the investigations. All that is of relevance is whether the disclosure by the whistle blower was mala fide or not. We are of the opinion that the disclosures made by the whistle blower were intended to be in public interest.43. In these circumstances, it is difficult to hold that Mr. Prashant Bhushan or Common Cause or Mr. Kamal Kant Jaswal had any intention to mislead this Court in any manner, nor do we agree that they have perjured themselves. The file notes speak for themselves and any interpretation, even an allegedly twisted interpretation said to have been given to them, cannot fall within the realm of perjury.44. As far as the allegation that there has been a violation of the provisions of the Official Secrets Act, 1923 is concerned, we are of the opinion that the file notes in this case cannot be described as an ‘official secret’ for the purposes of prosecuting Mr. Prashant Bhushan.
### Response:
0
### Explanation:
29. We are of the opinion that it is not at all necessary for us, nor is it advisable at this stage, to enter the thicket of allegations made by Common Cause with regard to the investigations relating to the Dardas or the alleged attempt by Mr. Ranjit Sinha to scuttle the investigations with regard to one or more of the accused persons in that case. What is of greater importance and what has caused us considerable concern is that neither Mr. Ranjit Sinha nor the CBI denies that Mr. Ranjit Sinha had met some persons, including the Dardas, who are accused of criminality in the Coal Block Allocations case without the investigating officer or the investigating team beingview was taken that Mr. Sinha should be directed to not interfere in the investigations in that case and that, coupled with his meeting accused persons in the Coal Block Allocation case without the investigating officer being present, is enough to persuade us that some further inquiry is necessary to ensure that the investigations have been fair in the coal block allocation cases where Mr. Sinha has had one or more meetings with one or more accusedour opinion this argument is fallacious. If an independent inquiry shows that the CBI has acted fairly, it will enhance its institutional credibility and its image.Though the submissions made by Mr.learned counsel on the contents of his application were limited, the oral submissions spread over a larger canvas. It is submitted by Mr. Vikas Singh that Mr. Prashant Bhushan, Common Cause and Mr. Kamal Kant Jaswal have not only committed perjury but are also guilty of contempt of Court and additionally Mr. Prashant Bhushan has violated the provisions of the Official Secrets Act, 1923 by placing on record the official notes with regard to the case of the Dardas. We have considered Mr.application from all these angles.42. In our opinion, the submissions made by Mr. Vikas Singh in this regard do not deserve acceptance. It is true that this Court had required the Director, CBI to ensure, by its order dated 8th May, 2013 that the secrecy of the inquiries and investigations into the allocation of coal blocks is maintained. However, if somebody accesses documents that ought to be carefully maintained by the CBI, it is difficult to find fault with such a whistle blower particularly when his or her action is in public interest. It is another matter if the whistle blower uses the documents for a purpose that is outrageous or that may damage the public interest. In that event, it would be permissible for this Court or an appropriate Court to take action against the whistle blower, if he or she is identified. However, the present case is not of any such category. The whistle blower, whoever it is, acted purportedly in public interest by seeking to bring out what he or she believes is an attempt by Mr. Ranjit Sinha to scuttle the investigations into the affairs of the Dardas or others in the Coal Block Allocation case. As mentioned above, we are not considering whether the file notes actually disclose an attempt by Mr. Sinha to scuttle the investigations. All that is of relevance is whether the disclosure by the whistle blower was mala fide or not. We are of the opinion that the disclosures made by the whistle blower were intended to be in public interest.43. In these circumstances, it is difficult to hold that Mr. Prashant Bhushan or Common Cause or Mr. Kamal Kant Jaswal had any intention to mislead this Court in any manner, nor do we agree that they have perjured themselves. The file notes speak for themselves and any interpretation, even an allegedly twisted interpretation said to have been given to them, cannot fall within the realm of perjury.44. As far as the allegation that there has been a violation of the provisions of the Official Secrets Act, 1923 is concerned, we are of the opinion that the file notes in this case cannot be described as an ‘officialfor the purposes of prosecuting Mr. Prashant Bhushan.
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Shashikala Devi Vs. Central Bank of India & Others | was tantamount to retirement by resignation entitling the employee to retiral benefits. The following passage is apposite in this regard: “7. The contention of the respondent is that the plaintiff did not retire from service but he left the service of the Company by resigning his post. This aspect to some extent agitated the mind of the High Court. It may be dealt with first. It is not only in dispute, but is in fact conceded that the plaintiff did render continuous service from December 31, 1929 till August 31, 1959. On exact computation, the plaintiff rendered service for 29 years and 8 months. Rule 6(a) which prescribed the eligibility criterion for payment of gratuity provides that every permanent unconvenanted employee of the Company whether paid on monthly, weekly or daily basis will be eligible for retiring gratuity which shall be equal to half a month’s salary or wages for every completed year of continuous service subject to a maximum of 20 years’ salary or wages in all provided that when an employee dies, retires or is discharged under Rule 11(2)(ii) and (iii) before he has served the Company for a continuous period of 15 years he shall be paid a gratuity at the rate therein mentioned. The expression “retirement” has been defined in Rule 1(g) to mean “the termination of service by reason of any cause other than removal by discharge due to misconduct”. It is admitted that the plaintiff was a permanent unconvenanted employee of the Company paid on monthly basis and he rendered service for over 29 years and his service came to an end by reason of his tendering resignation which was unconditionally accepted. It is not suggested that he was removed by discharge due to misconduct. Unquestionably, therefore, the plaintiff retired from service because by the letter Annexure ‘B’ dated August 26, 1959, the resignation tendered by the plaintiff as per his letter dated July 27, 1959 was accepted and he was released from his service with effect from September 1, 1959. The termination of service was thus on account of resignation of the plaintiff being accepted by the respondent. The plaintiff has, within the meaning of the expression, thus retired from service of the respondent and he is qualified for payment of gratuity in terms of Rule 6.” 17. In Union of India and Ors. v. Lt. Col. P.S. Bhargava, (1997) 2 SCC 28 this Court was dealing with a case where the respondent was denied pension on the ground that he had voluntarily retired from service. Dismissing the appeal filed by the Union of India, this Court held that Regulation 16 of the Pension Regulations applicable to the respondent did not deal with voluntary resignations and could not, therefore, be pressed into service to deny pension to the respondent. This Court said: “19. Regulation 16 does not cover a case of voluntary resignation. Regulation 16(b) does refer to a case where an officer who has to his credit the minimum period of qualifying service being called upon to resign whose pension can be reduced. Had the Regulations intended to take away the right of a person to the terminal benefits on his voluntary resigning, then a specific provision similar to Regulation 16(b) would have been incorporated in the Regulations but this has not been done. Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and therefore, such officers, who voluntarily resign, cannot be automatically deprived of the terminal benefits.” 18. In Sheel Kumar Jain v. New India Assurance Company Limited and Ors., (2011) 12 SCC 197 , the facts were somewhat similar to the case at hand. The appellant in that case was an employee of an Insurance Company governed by a Pension Scheme which provided, as in the case at hand, forfeiture of the entire service of an employee should be resign from his employment. The appellant submitted a letter of resignation which resulted in denial of his service benefits under the scheme aforementioned. This Court, however, held that since the employee had completed the qualifying service and was entitled to seek voluntary retirement under the scheme he could not be said to have resigned so as to lose his pension. This Court said: “25. Para 22 of the 1995 Pension Scheme states that the resignation of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently he shall not qualify for pensionary benefits, but does not define the term “resignation”. Under sub-para (1) of Para 30 of the 1995 pension Scheme, an employee, who has completed 20 years of qualifying service, may by giving notice of not less than 90 days in writing to the appointing authority retire from service and under sub-para (2) of Para 30 of the 1995 Pension Scheme, the notice of voluntary retirement shall require acceptance by the appointing authority. Since “voluntary retirement” unlike “resignation” does not entail forfeiture of past services and instead qualifies for pension, an employee to whom Para 30 of the 1995 Pension Scheme applies cannot be said to have “resigned” from service.26. In the facts of the present case, we find that the appellant had completed 20 years of qualifying service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave the service and the appointing authority had accepted notice of the appellant and relieved him from service. Hence, Para 30 of the 1995 Pension Scheme applied to the appellant even though in his letter dated 16.9.1991 to the General Manager of Respondent 1 Company he had used the word “resign”.” 19. | 1[ds]7. In the case at hand, Mauzideceased employee had rendered nearly 34 years of service in theHe was, therefore, qualified to receive pension in terms of the Regulations applicable to him. It is also evident from a reading of Regulation 29 that thewas entitled to seek voluntary retirement in terms of Regulation 29 for he had completed more than twenty years of service by the 8th October, 2007. As on 8th October, 2007 thewas entitled either to resign from service or to seek premature retirement in terms of Regulation 29 (supra). The question in that backdrop is whether letter dated 8th October, 2007 was a letter of resignation simplictor or could as well be treated to be a letter seeking voluntary retirement. The High Court, as seen earlier, has taken the view that the letter was one of resignation that resulted in the forfeiture of past service under Regulation 22 of the Regulations. The High Court appears to have been impressed by the use of the wordletter dated 8th October, 2007. The use of the expressionhowever, is not, in our opinion, conclusive That is, in our opinion, so even when this Court has always maintained a clear distinction between. Whether or not a given communication is a letter of resignation simplictor or can as well be treated to be a request for voluntary retirement will always depend upon the facts and circumstances of each case and the provisions of the Rules applicable.When viewed in the backdrop of the above facts, it is difficult to reject the contention urged on behalf of the appellant that what theintended to do by his letter dated 8th October, 2007 was to seek voluntary retirement and not resignation from his employment. We say so in the light of several attendant circumstances. In the first place, the employee at the time of his writing the letter dated 8th October, 2007 was left with just about one and a half years of service. It will be too imprudent for anyone to suggest that a bank employee who has worked with such commitment as earned him the appreciation of the management would have so thoughtlessly given up the retrial benefits in the form of pension etc. which he had earned on account of his continued dedication to his job. If pension is not a bounty, but a right which the employee acquires on account of long years of sincere and good work done by him, the Court will be slow in presuming that the employee intended to waive or abandon such a valuable right without any cogent reasons. At any rate there ought to be some compelling circumstance to suggest that the employee had consciously given up the right and benefit, which he had acquired so assiduously. Far from the material on record suggesting any such conscious surrender abandonment or waiver of the right to retrial benefit including pension, we find that the material placed on record clearly suggests that the employee had no source of income or sustenance except the benefit that he had earned for long years of service. This is evident from a reading of the letter dated 8th October, 2007 in which the employee seeks release of his retiral benefits at the earliest to enable him to undergo medical treatment that he requires. The letter, as seen earlier, lays emphasize on the fact that for his sustenance the employee is dependent entirely on such benefits. It is in that view difficult for us to attribute to the employee the intention to give up what was rightfully his in terms of retiral benefits, when such benefits were the only source not only for his survival but for his medical treatment that he so urgently required. For a waiver of a legally enforceable right earned by an employee, it is necessary that the same is clear and unequivocal, conscious and with full knowledge of the consequences. No such intention can be gathered from the facts and circumstances of the instant case. Thesubsequent letters and communication which are placed on record cannot be said to be an afterthought. Being proximate in point of time letter dated 8th October, 2007 must be treated to be a part of the subsequent communication making theintentions clear, at least for purposes of determining the true intention underlying the act of the employee.15. It is, in our opinion, abundantly clear that the beneficial provisions of a Pension Scheme or Pension Regulations have been interpreted rather liberally so as to promote the object underlying the same rather than denying benefits due to beneficiaries under such provisions. In cases where an employee has the requisite years of qualifying service for grant of pension, and where he could under the service conditions applicable seek voluntary retirement, the benefit of pension has been allowed by treating the purported resignation to be a request for voluntary retirement. We see no compelling reasons for doing so even in the present case, which in our opinion is in essence a case of the deceased employee seeking voluntary retirement rather than resigning.In the facts of the present case, we find that the appellant had completed 20 years of qualifying service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave the service and the appointing authority had accepted notice of the appellant and relieved him from service. Hence, Para 30 of the 1995 Pension Scheme applied to the appellant even though in his letter dated 16.9.1991 to the General Manager of Respondent 1 Company he had used the word | 1 | 5,888 | 1,000 | ### Instruction:
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was tantamount to retirement by resignation entitling the employee to retiral benefits. The following passage is apposite in this regard: “7. The contention of the respondent is that the plaintiff did not retire from service but he left the service of the Company by resigning his post. This aspect to some extent agitated the mind of the High Court. It may be dealt with first. It is not only in dispute, but is in fact conceded that the plaintiff did render continuous service from December 31, 1929 till August 31, 1959. On exact computation, the plaintiff rendered service for 29 years and 8 months. Rule 6(a) which prescribed the eligibility criterion for payment of gratuity provides that every permanent unconvenanted employee of the Company whether paid on monthly, weekly or daily basis will be eligible for retiring gratuity which shall be equal to half a month’s salary or wages for every completed year of continuous service subject to a maximum of 20 years’ salary or wages in all provided that when an employee dies, retires or is discharged under Rule 11(2)(ii) and (iii) before he has served the Company for a continuous period of 15 years he shall be paid a gratuity at the rate therein mentioned. The expression “retirement” has been defined in Rule 1(g) to mean “the termination of service by reason of any cause other than removal by discharge due to misconduct”. It is admitted that the plaintiff was a permanent unconvenanted employee of the Company paid on monthly basis and he rendered service for over 29 years and his service came to an end by reason of his tendering resignation which was unconditionally accepted. It is not suggested that he was removed by discharge due to misconduct. Unquestionably, therefore, the plaintiff retired from service because by the letter Annexure ‘B’ dated August 26, 1959, the resignation tendered by the plaintiff as per his letter dated July 27, 1959 was accepted and he was released from his service with effect from September 1, 1959. The termination of service was thus on account of resignation of the plaintiff being accepted by the respondent. The plaintiff has, within the meaning of the expression, thus retired from service of the respondent and he is qualified for payment of gratuity in terms of Rule 6.” 17. In Union of India and Ors. v. Lt. Col. P.S. Bhargava, (1997) 2 SCC 28 this Court was dealing with a case where the respondent was denied pension on the ground that he had voluntarily retired from service. Dismissing the appeal filed by the Union of India, this Court held that Regulation 16 of the Pension Regulations applicable to the respondent did not deal with voluntary resignations and could not, therefore, be pressed into service to deny pension to the respondent. This Court said: “19. Regulation 16 does not cover a case of voluntary resignation. Regulation 16(b) does refer to a case where an officer who has to his credit the minimum period of qualifying service being called upon to resign whose pension can be reduced. Had the Regulations intended to take away the right of a person to the terminal benefits on his voluntary resigning, then a specific provision similar to Regulation 16(b) would have been incorporated in the Regulations but this has not been done. Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and therefore, such officers, who voluntarily resign, cannot be automatically deprived of the terminal benefits.” 18. In Sheel Kumar Jain v. New India Assurance Company Limited and Ors., (2011) 12 SCC 197 , the facts were somewhat similar to the case at hand. The appellant in that case was an employee of an Insurance Company governed by a Pension Scheme which provided, as in the case at hand, forfeiture of the entire service of an employee should be resign from his employment. The appellant submitted a letter of resignation which resulted in denial of his service benefits under the scheme aforementioned. This Court, however, held that since the employee had completed the qualifying service and was entitled to seek voluntary retirement under the scheme he could not be said to have resigned so as to lose his pension. This Court said: “25. Para 22 of the 1995 Pension Scheme states that the resignation of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently he shall not qualify for pensionary benefits, but does not define the term “resignation”. Under sub-para (1) of Para 30 of the 1995 pension Scheme, an employee, who has completed 20 years of qualifying service, may by giving notice of not less than 90 days in writing to the appointing authority retire from service and under sub-para (2) of Para 30 of the 1995 Pension Scheme, the notice of voluntary retirement shall require acceptance by the appointing authority. Since “voluntary retirement” unlike “resignation” does not entail forfeiture of past services and instead qualifies for pension, an employee to whom Para 30 of the 1995 Pension Scheme applies cannot be said to have “resigned” from service.26. In the facts of the present case, we find that the appellant had completed 20 years of qualifying service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave the service and the appointing authority had accepted notice of the appellant and relieved him from service. Hence, Para 30 of the 1995 Pension Scheme applied to the appellant even though in his letter dated 16.9.1991 to the General Manager of Respondent 1 Company he had used the word “resign”.” 19.
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7. In the case at hand, Mauzideceased employee had rendered nearly 34 years of service in theHe was, therefore, qualified to receive pension in terms of the Regulations applicable to him. It is also evident from a reading of Regulation 29 that thewas entitled to seek voluntary retirement in terms of Regulation 29 for he had completed more than twenty years of service by the 8th October, 2007. As on 8th October, 2007 thewas entitled either to resign from service or to seek premature retirement in terms of Regulation 29 (supra). The question in that backdrop is whether letter dated 8th October, 2007 was a letter of resignation simplictor or could as well be treated to be a letter seeking voluntary retirement. The High Court, as seen earlier, has taken the view that the letter was one of resignation that resulted in the forfeiture of past service under Regulation 22 of the Regulations. The High Court appears to have been impressed by the use of the wordletter dated 8th October, 2007. The use of the expressionhowever, is not, in our opinion, conclusive That is, in our opinion, so even when this Court has always maintained a clear distinction between. Whether or not a given communication is a letter of resignation simplictor or can as well be treated to be a request for voluntary retirement will always depend upon the facts and circumstances of each case and the provisions of the Rules applicable.When viewed in the backdrop of the above facts, it is difficult to reject the contention urged on behalf of the appellant that what theintended to do by his letter dated 8th October, 2007 was to seek voluntary retirement and not resignation from his employment. We say so in the light of several attendant circumstances. In the first place, the employee at the time of his writing the letter dated 8th October, 2007 was left with just about one and a half years of service. It will be too imprudent for anyone to suggest that a bank employee who has worked with such commitment as earned him the appreciation of the management would have so thoughtlessly given up the retrial benefits in the form of pension etc. which he had earned on account of his continued dedication to his job. If pension is not a bounty, but a right which the employee acquires on account of long years of sincere and good work done by him, the Court will be slow in presuming that the employee intended to waive or abandon such a valuable right without any cogent reasons. At any rate there ought to be some compelling circumstance to suggest that the employee had consciously given up the right and benefit, which he had acquired so assiduously. Far from the material on record suggesting any such conscious surrender abandonment or waiver of the right to retrial benefit including pension, we find that the material placed on record clearly suggests that the employee had no source of income or sustenance except the benefit that he had earned for long years of service. This is evident from a reading of the letter dated 8th October, 2007 in which the employee seeks release of his retiral benefits at the earliest to enable him to undergo medical treatment that he requires. The letter, as seen earlier, lays emphasize on the fact that for his sustenance the employee is dependent entirely on such benefits. It is in that view difficult for us to attribute to the employee the intention to give up what was rightfully his in terms of retiral benefits, when such benefits were the only source not only for his survival but for his medical treatment that he so urgently required. For a waiver of a legally enforceable right earned by an employee, it is necessary that the same is clear and unequivocal, conscious and with full knowledge of the consequences. No such intention can be gathered from the facts and circumstances of the instant case. Thesubsequent letters and communication which are placed on record cannot be said to be an afterthought. Being proximate in point of time letter dated 8th October, 2007 must be treated to be a part of the subsequent communication making theintentions clear, at least for purposes of determining the true intention underlying the act of the employee.15. It is, in our opinion, abundantly clear that the beneficial provisions of a Pension Scheme or Pension Regulations have been interpreted rather liberally so as to promote the object underlying the same rather than denying benefits due to beneficiaries under such provisions. In cases where an employee has the requisite years of qualifying service for grant of pension, and where he could under the service conditions applicable seek voluntary retirement, the benefit of pension has been allowed by treating the purported resignation to be a request for voluntary retirement. We see no compelling reasons for doing so even in the present case, which in our opinion is in essence a case of the deceased employee seeking voluntary retirement rather than resigning.In the facts of the present case, we find that the appellant had completed 20 years of qualifying service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave the service and the appointing authority had accepted notice of the appellant and relieved him from service. Hence, Para 30 of the 1995 Pension Scheme applied to the appellant even though in his letter dated 16.9.1991 to the General Manager of Respondent 1 Company he had used the word
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KELVIN JUTE CO LTD WORKERS PROVIDENT FUND AND ANR Vs. KRISHNA KUMAR AGARWALA AND OTHERS | 142 of the Constitution of India and give a quietus to all other disputes by treating the remittance of Rs. 1.95 Crores as full and final settlement of all the dues without any further liability on the part of M/s. Trend Vyapar Limited either by way of interest or by way of damages. ... 8. The non-applicants have submitted that they are not willing for such a settlement and insisted on disposal of the applications on merits. 9. Mr. Krishnan Venugopal, learned Senior Counsel has led the arguments on behalf of M/s Trend Vyapaar Ltd.. According to the learned Senior counsel, the applicant had made a provision, at the time of takeover only for a sum of Rs.1.95 crores, as a contingent liability. It is also submitted that the non-applicants had not raised any objection before the BIFR. Learned Senior Counsel has also made a forceful submission on an alleged fraud played by the non-applicants before the High Court. To quote from the written submission: 15.... The writ petition admits that Kelvin Broadloom was covered by Kelvins S.17 EPF Act exemption. Instead of taking a fresh exemption, Hooghly renamed the Kelvin Broadloom division that it bought from Bajoria Group in 1986 its Waverly Jute Mill Company unit only to take advantage of the 22.6.1961 exemption to an entirely different company of that name. From S.2A of the EPF Act read with the definition of exempted establishment in S.2(fff), it is clear that a company cannot utilize an exemption granted to some other company. 16. In Weaverlys, the fraud is even more brazen. While the Civil Appeal was pending before this Honble Court, in 2011, Hooghly sold its Waverly Jute Mill Company Unit to a company Weaverly Jute Mills Pvt. Ltd. newly incorporated in 2011 only to take over the unit by adding letter e after a in Waverly. This was obviously done only to continue to take advantage of the exemption dated 22.6.1961 in favour of the original Waverly Jute Mills Company Limited, Titagarh, 24 Parganas... It is also submitted that in the case of a non-exempted establishment, only a beneficiary employer can stake a claim and in the instant case, no beneficiary has ever made a claim. 10. The arguments in the written submission have been completed by submitting that: 35. In view of the capping of Trend Vyapaars liability at Rs.1.95 crores under the BIFR Scheme in terms of S.18(8) of SICA and the amount of Rs.1.95 crores having been deposited with the RPFC as per this Honble Courts order dated 10.05.2016, it is respectfully prayed that no further liability to pay interest should be fastened on Trend Vyapaar Ltd. Trend Vyapaar Ltd should also be relieved of any liability under paragraph 28 of the Appendix to the EPF Scheme to make good any deficit in Kelvin Trusts accounts if Kelvin Trust is directed to pay interest to Waverly Trust. 36. In any case, in view of RPFCs finding that Waverly Trust is not an exempted trust after the transfer of Kelvin Broadloom unit first to Hooghly and then to Weaverly, under the provisions of paragraph 27AA of the EPF Scheme read with paragraph 29 of the Appendix thereto, Waverly Trust is not entitled to claim any money by way of EPF dues from Trend Vyapaar Ltd or Kelvin Trust. ... 11. Shri Sudhir Chandra, learned Senior Counsel, who led the arguments on behalf of the writ petitioner before the High Court (non-applicant herein), has submitted that the issues before the High Court having become final, the same cannot be reopened otherwise than in accordance with law. To quote from the written submission : 17... It is submitted with great respect that the question that Trend Vyapaar Ltd. was in regular payment of Provident Fund dues to its workers was of no consequence at all in the case because the amount of Rs.1.95 Crores with statutory interest from 30.06.1986 till payment was payable by the Kelvin Trust to the Waverly Trust. It did not matter whether Trend Vyapaar Ltd. was paying its workers or not. The finding of Honble Single Judge is that the management of Kelvin Jute Co. Ltd. had utilized the funds for its own purposes (in obvious collusion with the trustees of Kelvin Trust). It is submitted that this amounts to defalcation and/or embezzlement by the management of the Kelvin Jute Co. Ltd. of the PF accumulations liable to be transferred from the Kelvin Trust to the Waverley Trust. As such, the question of this Honble Court issuing directions under Article 142 of the Constitution of India could not arise. 18. Appln. Nos. 6, 9 and 10 are nothing but abuse of the process of Court at the behest of the erstwhile management of Kelvin/Trend Vyapaar Ltd., i.e., the Nathani Group. 19. The PF accumulations alongwith statutory interest due thereon is the amount due under the decree of the Honble High Court, affirmed by this Honble Court, as payable by the Kelvin Trust to the Weaverly Trust, failing which, by the Kelvin Jute Co. Ltd./Trend Vyapaar Ltd. to the Waverly Trust. 20. None of the said IA Nos. 6, 9 and 10/2016 are review applications, nor is there any ground of review. 21. The issue in respect of transfer of the said admitted amount of Rs.1.95 crores with statutory interest thereon from 30.06.1986 is between the Kelvin Trust and the Waverly Trust, failing which, the Kelvin Jute Co. Ltd. has to transfer the amount to the Waverly Trust. The workers do not come in the picture. 12. The Regional Provident Fund Commissioner has taken a stand before this Court that Section 7A, Section 14B and Section 7Q are not applicable in the present case, being a private Trust. But the fact remains that the non applicants did not produce any records before the Commissioner for enabling him to determine the dues, as directed by this Court. 13. We have also heard the learned Senior Counsel and other Counsel appearing for other applicants, intervenors and nonapplicants. | 0[ds]12. The Regional Provident Fund Commissioner has taken a stand before this Court that Section 7A, Section 14B and Section 7Q are not applicable in the present case, being a private Trust. But the fact remains that the non applicants did not produce any records before the Commissioner for enabling him to determine the dues, as directed by this Court.13. We have also heard the learned Senior Counsel and other Counsel appearing for other applicants, intervenors and nonapplicants. | 0 | 2,735 | 90 | ### Instruction:
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142 of the Constitution of India and give a quietus to all other disputes by treating the remittance of Rs. 1.95 Crores as full and final settlement of all the dues without any further liability on the part of M/s. Trend Vyapar Limited either by way of interest or by way of damages. ... 8. The non-applicants have submitted that they are not willing for such a settlement and insisted on disposal of the applications on merits. 9. Mr. Krishnan Venugopal, learned Senior Counsel has led the arguments on behalf of M/s Trend Vyapaar Ltd.. According to the learned Senior counsel, the applicant had made a provision, at the time of takeover only for a sum of Rs.1.95 crores, as a contingent liability. It is also submitted that the non-applicants had not raised any objection before the BIFR. Learned Senior Counsel has also made a forceful submission on an alleged fraud played by the non-applicants before the High Court. To quote from the written submission: 15.... The writ petition admits that Kelvin Broadloom was covered by Kelvins S.17 EPF Act exemption. Instead of taking a fresh exemption, Hooghly renamed the Kelvin Broadloom division that it bought from Bajoria Group in 1986 its Waverly Jute Mill Company unit only to take advantage of the 22.6.1961 exemption to an entirely different company of that name. From S.2A of the EPF Act read with the definition of exempted establishment in S.2(fff), it is clear that a company cannot utilize an exemption granted to some other company. 16. In Weaverlys, the fraud is even more brazen. While the Civil Appeal was pending before this Honble Court, in 2011, Hooghly sold its Waverly Jute Mill Company Unit to a company Weaverly Jute Mills Pvt. Ltd. newly incorporated in 2011 only to take over the unit by adding letter e after a in Waverly. This was obviously done only to continue to take advantage of the exemption dated 22.6.1961 in favour of the original Waverly Jute Mills Company Limited, Titagarh, 24 Parganas... It is also submitted that in the case of a non-exempted establishment, only a beneficiary employer can stake a claim and in the instant case, no beneficiary has ever made a claim. 10. The arguments in the written submission have been completed by submitting that: 35. In view of the capping of Trend Vyapaars liability at Rs.1.95 crores under the BIFR Scheme in terms of S.18(8) of SICA and the amount of Rs.1.95 crores having been deposited with the RPFC as per this Honble Courts order dated 10.05.2016, it is respectfully prayed that no further liability to pay interest should be fastened on Trend Vyapaar Ltd. Trend Vyapaar Ltd should also be relieved of any liability under paragraph 28 of the Appendix to the EPF Scheme to make good any deficit in Kelvin Trusts accounts if Kelvin Trust is directed to pay interest to Waverly Trust. 36. In any case, in view of RPFCs finding that Waverly Trust is not an exempted trust after the transfer of Kelvin Broadloom unit first to Hooghly and then to Weaverly, under the provisions of paragraph 27AA of the EPF Scheme read with paragraph 29 of the Appendix thereto, Waverly Trust is not entitled to claim any money by way of EPF dues from Trend Vyapaar Ltd or Kelvin Trust. ... 11. Shri Sudhir Chandra, learned Senior Counsel, who led the arguments on behalf of the writ petitioner before the High Court (non-applicant herein), has submitted that the issues before the High Court having become final, the same cannot be reopened otherwise than in accordance with law. To quote from the written submission : 17... It is submitted with great respect that the question that Trend Vyapaar Ltd. was in regular payment of Provident Fund dues to its workers was of no consequence at all in the case because the amount of Rs.1.95 Crores with statutory interest from 30.06.1986 till payment was payable by the Kelvin Trust to the Waverly Trust. It did not matter whether Trend Vyapaar Ltd. was paying its workers or not. The finding of Honble Single Judge is that the management of Kelvin Jute Co. Ltd. had utilized the funds for its own purposes (in obvious collusion with the trustees of Kelvin Trust). It is submitted that this amounts to defalcation and/or embezzlement by the management of the Kelvin Jute Co. Ltd. of the PF accumulations liable to be transferred from the Kelvin Trust to the Waverley Trust. As such, the question of this Honble Court issuing directions under Article 142 of the Constitution of India could not arise. 18. Appln. Nos. 6, 9 and 10 are nothing but abuse of the process of Court at the behest of the erstwhile management of Kelvin/Trend Vyapaar Ltd., i.e., the Nathani Group. 19. The PF accumulations alongwith statutory interest due thereon is the amount due under the decree of the Honble High Court, affirmed by this Honble Court, as payable by the Kelvin Trust to the Weaverly Trust, failing which, by the Kelvin Jute Co. Ltd./Trend Vyapaar Ltd. to the Waverly Trust. 20. None of the said IA Nos. 6, 9 and 10/2016 are review applications, nor is there any ground of review. 21. The issue in respect of transfer of the said admitted amount of Rs.1.95 crores with statutory interest thereon from 30.06.1986 is between the Kelvin Trust and the Waverly Trust, failing which, the Kelvin Jute Co. Ltd. has to transfer the amount to the Waverly Trust. The workers do not come in the picture. 12. The Regional Provident Fund Commissioner has taken a stand before this Court that Section 7A, Section 14B and Section 7Q are not applicable in the present case, being a private Trust. But the fact remains that the non applicants did not produce any records before the Commissioner for enabling him to determine the dues, as directed by this Court. 13. We have also heard the learned Senior Counsel and other Counsel appearing for other applicants, intervenors and nonapplicants.
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12. The Regional Provident Fund Commissioner has taken a stand before this Court that Section 7A, Section 14B and Section 7Q are not applicable in the present case, being a private Trust. But the fact remains that the non applicants did not produce any records before the Commissioner for enabling him to determine the dues, as directed by this Court.13. We have also heard the learned Senior Counsel and other Counsel appearing for other applicants, intervenors and nonapplicants.
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Khemchand Shankar Choudharyand Another Vs. Vishnu Hari Patil And Others | appellants do not also dispute that they being purchasers pendente lite are bound by the proceedings in the suit by virtue of the provisions of S.52 of the Transfer of Property Act. The only prayer made by them is that since the sales in their favour were not in dispute and as they had acquired title under the parties to the suit and were also in possession of the fields in question the Collector should have considered their prayer for an equitable partition of the estate and, if possible, to allot the fields in question to the share of the sons of Natu so that they could continue to remain in possession of the lands purchased by them. The appellants allege that the sons of Natu, their transferors, had colluded with Vishnu Hari Patil, respondent No. 1 and had accepted the partition made by the Collector in order to cause prejudice to them. The sons of Natu got their 5/8th share of the property in addition to the price paid by the appellants for the five fields purchased by them. The appellants were not allotted any lands at the partition.5. The question for consideration is whether the High Court, the Government and the Revenue authorities were right in the circumstances of the case in holding that the appellants had no locus standi to ask for an equitable partition particularly when the sales in favour of the appellants were not in dispute.6. S.52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. R.10 of O.22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under S.54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the Share of the insolvent. In the case of transferees pendente lite also, if there is no dispute the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of S.54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares.7. In view of the foregoing the orders of the High Court, the State Government and the Commissioner holding that the appellants had no locus standi to ask the Collector to effect an equitable partition have got to be set aside and they are accordingly set aside. The partition effected by the Collector is also set aside. | 1[ds]6. S.52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. R.10 of O.22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under S.54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the Share of the insolvent. In the case of transferees pendente lite also, if there is no dispute the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of S.54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares.7. In view of the foregoing the orders of the High Court, the State Government and the Commissioner holding that the appellants had no locus standi to ask the Collector to effect an equitable partition have got to be set aside and they are accordingly set aside. The partition effected by the Collector is also set aside. | 1 | 1,822 | 809 | ### 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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appellants do not also dispute that they being purchasers pendente lite are bound by the proceedings in the suit by virtue of the provisions of S.52 of the Transfer of Property Act. The only prayer made by them is that since the sales in their favour were not in dispute and as they had acquired title under the parties to the suit and were also in possession of the fields in question the Collector should have considered their prayer for an equitable partition of the estate and, if possible, to allot the fields in question to the share of the sons of Natu so that they could continue to remain in possession of the lands purchased by them. The appellants allege that the sons of Natu, their transferors, had colluded with Vishnu Hari Patil, respondent No. 1 and had accepted the partition made by the Collector in order to cause prejudice to them. The sons of Natu got their 5/8th share of the property in addition to the price paid by the appellants for the five fields purchased by them. The appellants were not allotted any lands at the partition.5. The question for consideration is whether the High Court, the Government and the Revenue authorities were right in the circumstances of the case in holding that the appellants had no locus standi to ask for an equitable partition particularly when the sales in favour of the appellants were not in dispute.6. S.52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. R.10 of O.22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under S.54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the Share of the insolvent. In the case of transferees pendente lite also, if there is no dispute the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of S.54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares.7. In view of the foregoing the orders of the High Court, the State Government and the Commissioner holding that the appellants had no locus standi to ask the Collector to effect an equitable partition have got to be set aside and they are accordingly set aside. The partition effected by the Collector is also set aside.
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6. S.52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject matter of a suit from any of the parties to the suit will be bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. R.10 of O.22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under S.54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the official receiver may be allotted the Share of the insolvent. In the case of transferees pendente lite also, if there is no dispute the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of S.54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares.7. In view of the foregoing the orders of the High Court, the State Government and the Commissioner holding that the appellants had no locus standi to ask the Collector to effect an equitable partition have got to be set aside and they are accordingly set aside. The partition effected by the Collector is also set aside.
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CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION Vs. M/S ECI SPIC SMO MCML (JV) A JOINT VENTURE COMPANY | party in appointing an arbitrator would get counter-balanced by equal power with the other party. In para (21), it was held as under:- 21. ….The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party….. 35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees. 36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee 37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case. 38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained. | 1[ds]16. After coming into force of Arbitration and Conciliation (Amendment) Act, 2015, the Government of India, Ministry of Railways made a modification to Clause 64 of the General Conditions of Contract and the Railway Board issued a notification dated 16.11.2016 in this regard. The modified Clause 64(3)(a)(i) (where applicability of Section 12(5) of the Act has been waived off) inter alia provided that in case where the total value of all claims in question added together does not exceed rupees one crore, the arbitral tribunal shall consist of a sole arbitrator who shall be a Gazetted Officer of Railways not below JA Grade nominated by the General Manager. In terms of Clause 64(3)(a)(i), the sole arbitrator shall be appointed within sixty days from the day when a written and valid demand for arbitration is received by the General Manager. In the present case, since the value of the work contract is worth more than Rs.165 crores, Clause 64(3)(a)(i) is not applicable19. After coming into force of the Arbitration and Conciliation (Amendment) Act, 2015, when Clause 64 of the General Conditions of Contract has been modified inter alia providing for constitution of Arbitral Tribunal consisting of three arbitrators either serving or retired railway officers, the High Court is not justified in appointing an independent sole arbitrator without resorting to the procedure for appointment of the arbitrator as prescribed under Clause 64(3)(b) of the General Conditions of Contract20. It is pertinent to note that even in the application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, the respondent prayed for appointment of a sole arbitrator in terms of Clause 1.2.54(b)(i) of the Tender Agreement/Clause 64 of the General Conditions of Contract for adjudicating the disputes which have arisen between the parties. In the petition filed under Section 11(6) of the Act, the respondent prayed for appointment of one Shri Ashwani Kumar Kapoor to act as the arbitrator. Thus, the respondent itself sought for appointment of arbitrator in terms of Clause 64 of the General Conditions of Contract. The appointment of Shri Ashwani Kumar Kapoor as arbitrator, of course, was not agreeable to the appellant, since it was found that said Shri Ashwani Kumar Kapoor was not in the panel of arbitrators and therefore, could not be considered for appointment as arbitrator. As the value of the work contract was worth more than Rs.165 crores, the dispute can be resolved only by a panel of three arbitrators in terms of Clause 64(3)(b) of the General Conditions of Contract. The respondent was not right in seeking for appointment of a sole arbitrator in terms of Clause 1.2.54(b)(i) of the Tender Agreement/Clause 64 of the General Conditions of Contract22. Applying ratio of the Parmar Construction Company, in Pradeep Vinod Construction Company (2019) SCC Online SC 1467, the Supreme Court held that the appointment of arbitrator should be in terms of the agreement and the High Court was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of Contract. As held in Parmar Construction Company and Pradeep Vinod Construction Company, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of the arbitrators which has been prescribed under the General Conditions of ContractRE: Contention:- Retired Railway Officers are not eligible to be appointed as arbitrators under Section 12(5) read with Schedule VII of the Act and were statutorily made ineligible to be appointed as an arbitrator26. The same view was reiterated in Government of Haryana PWD Haryana (B and R) Branch v. G.F. Toll Road Private Limited and Others (2019) 3 SCC 505 wherein, the Supreme Court held that the appointment of a retired employee of a party to the agreement cannot be assailed on the ground that he is a retired/former employee of one of the parties to the agreement. Absolutely, there is no bar under Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015 for appointment of a retired employee to act as an arbitrator27. By the letter dated 25.10.2018, the appellant has forwarded a list of four retired railway officers on its panel thereby giving a wide choice to the respondent to suggest any two names to be nominated as arbitrators out of which, one will be nominated as the arbitrator representing the respondent-Contractor. As held in Voestalpine Schienen Gmbh (2017) 4 SCC 665 , the very reason for empanelling the retired railway officers is to ensure that the technical aspects of the dispute are suitably resolved by utilising their expertise when they act as arbitrators. Merely because the panel of the arbitrators are the retired employees who have worked in the Railways, it does not make them ineligible to act as the arbitratorsRE: Contention:- Failure to act in terms of the Contract in not responding within thirty days from the date of the request30. As discussed earlier, as per the modified Clause 64(3)(b) of GCC, when a written and valid demand for arbitration is received by the General Manager, the Railway will send a panel of at least four names of retired railway officers empanelled to work as arbitrators. The contractor will be asked to suggest to the General Manager at least two names out of the panel for appointment as contractors nominee within thirty days from the date of dispatch of the request by the Railway. Vide letter dated 27.07.2018, the respondent has sought for appointment of an arbitrator for resolving the disputes. The appellant by its letter dated 24.09.2018 (which is well within the period of sixty days) in terms of Clause 64(3)(a)(ii) (where applicability of Section 12(5) of the Act has been waived off) sent a panel of four serving railway officers of JA Grade to act as arbitrators and requested the respondent to select any two from the list and communicate to the office at the earliest for formation of Arbitration Tribunal. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. By the letter dated 25.10.2018, in terms of Clause 64(3)(b) of GCC (where applicability of Section 12(5) has not been waived off) the appellant has nominated a panel of four retired railway officers to act as arbitrators and requested the respondent to select any two from the list and communicate to the appellant within thirty days from the date of the letter for formation of Arbitration Tribunal. The respondent has neither sent its reply nor selected two names from the list and replied to the appellant. Without responding to the appellant, the respondent has filed petition under Section 11(6) of the Arbitration and Conciliation Act before the High Court on 17.12.2018. When the respondent has not sent any reply to the communication dated 25.10.2018, the respondent is not justified in contending that the appointment of Arbitral Tribunal has not been made before filing of the application under Section 11 of the Act and that the right of the appellant to constitute Arbitral Tribunal is extinguished on filing of the application under Section 11(6) of the ActRE: Contention:- General Manager himself becoming ineligible by operation of law to be appointed as arbitrator, is not eligible to nominate the arbitrator35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out ofthem as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained. | 1 | 8,616 | 2,474 | ### 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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party in appointing an arbitrator would get counter-balanced by equal power with the other party. In para (21), it was held as under:- 21. ….The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party….. 35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees. 36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee 37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case. 38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained.
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1
### Explanation:
When the respondent has not sent any reply to the communication dated 25.10.2018, the respondent is not justified in contending that the appointment of Arbitral Tribunal has not been made before filing of the application under Section 11 of the Act and that the right of the appellant to constitute Arbitral Tribunal is extinguished on filing of the application under Section 11(6) of the ActRE: Contention:- General Manager himself becoming ineligible by operation of law to be appointed as arbitrator, is not eligible to nominate the arbitrator35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out ofthem as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained.
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COMMISSIONER OF POLICE & ANR. Vs. UMESH KUMAR | to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] . (emphasis supplied) In the present case, after the name of respondents appeared in the results declared on 17 July 2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1 February 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submitted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment. 15. In regard to respondent Umesh Kumar, it is also brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently, the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do. 16. In Rajesh Kumar (supra), Justice TS Thakur, as the learned Chief Justice of India then was, dealt with a case where the model answer key, and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission, had been found to be flawed. The Court held: 15.The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the model answer key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the model answer key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the model answer key to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key. In Rajesh Kumar (supra), the Court then refused the oust those individuals from service who did not make the grade after re-valuation of the result since they had been in service for nearly seven years. However, in the present case, as we have discussed above, the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance. 17. For the above reasons, we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong. | 1[ds]The narration of facts demonstrates that a result notifying a list of provisionally selected candidates was initially declared on 13 July 2015 but it was soon found that an error had crept in due to the failure to allocate a bonus mark to every candidate whose height was in excess of 178 centimetres. The allotment of bonus marks was provided in Standing Order No. 212 of 2011, which necessitated a revision of the results. In the revised result, which was declared on 17 July 2015, certain candidates from the original list were ousted while new candidates came in. Both the respondents were part of the list of successful candidates. Yet, there can be no dispute about the factual position that the recruitment process was yet to be concluded. For one thing, the process of verification of character and antecedents and the ascertaining of medical fitness was yet to be carried out. But apart from this, a set of OAs came to be instituted by unsuccessful candidates before the Tribunal highlighting grievances in regard to the manner in which the answer key had been prepared. The authorities agreed before the Tribunal to appoint an Expert Committee. Following the submission of the report of the Expert Committee, the results were revised on 22 February 2016. After a decision was taken by the Competent Authority for revising the result, as many as 123 candidates who had been selected earlier were ousted and 129 new candidates came into the selected list. This process of revising the results was carried out when the recruitment process was yet to be completed for the candidates selected in the result declared on 17 July 2015. This process of the revision of the result was then unsuccessfully challenged in the first batch of OAs before the Tribunal, and subsequently the writ petitions under Article 226 before the High Court were also dismissed as not pressed. The flip-flops which took place were undoubtedly because of the failure of the authorities to notice initially the norm of allotting 1 bonus mark based on height and due to the failure to prepare a proper answer key. Such irregularities have become a bane of the public recruitment process at various levels resulting in litigation across the country before the Tribunals, the High Courts and ultimately this Court as well. Much of the litigation and delay in carrying out public recruitment would be obviated if those entrusted with the duty to do so carry it out with a sense of diligence and responsibility.14. The real issue, however, is whether the respondents were entitled to a writ of mandamus.This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative.In the present case, after the name of respondents appeared in the results declared on 17 July 2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1 February 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong.The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment.15. In regard to respondent Umesh Kumar, it is also brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently, the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do.16. In Rajesh Kumar (supra), Justice TS Thakur, as the learned Chief Justice of India then was, dealt with a case where the model answer key, and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission, had been found to be flawed. The Court held:15.The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the model answer key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the model answer key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the model answer key to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.In Rajesh Kumar (supra), the Court then refused the oust those individuals from service who did not make the grade after re-valuation of the result since they had been in service for nearly seven years. However, in the present case, as we have discussed above, the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance.17. For the above reasons, we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong.In Punjab SEB vs. Malkiat Singh (2005) 9 SCC 22 , this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:4. …the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp. 50-51)7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] . | 1 | 4,735 | 1,774 | ### 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:
to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] . (emphasis supplied) In the present case, after the name of respondents appeared in the results declared on 17 July 2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1 February 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submitted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment. 15. In regard to respondent Umesh Kumar, it is also brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently, the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do. 16. In Rajesh Kumar (supra), Justice TS Thakur, as the learned Chief Justice of India then was, dealt with a case where the model answer key, and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission, had been found to be flawed. The Court held: 15.The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the model answer key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the model answer key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the model answer key to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key. In Rajesh Kumar (supra), the Court then refused the oust those individuals from service who did not make the grade after re-valuation of the result since they had been in service for nearly seven years. However, in the present case, as we have discussed above, the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance. 17. For the above reasons, we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong.
### Response:
1
### Explanation:
is also brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently, the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do.16. In Rajesh Kumar (supra), Justice TS Thakur, as the learned Chief Justice of India then was, dealt with a case where the model answer key, and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission, had been found to be flawed. The Court held:15.The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the model answer key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the model answer key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the model answer key to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.In Rajesh Kumar (supra), the Court then refused the oust those individuals from service who did not make the grade after re-valuation of the result since they had been in service for nearly seven years. However, in the present case, as we have discussed above, the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance.17. For the above reasons, we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong.In Punjab SEB vs. Malkiat Singh (2005) 9 SCC 22 , this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:4. …the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp. 50-51)7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] .
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Waryam Steel Castings Pvt.Ltd Vs. Punjab State Power Corpn.Ltd | 62 of the Electricity Act, 2003 requires an appropriate Commission to determine the tariff in accordance with the provisions of the Act. The Regulatory Commission has been constituted and notified under the provisions of Section 3 read with Section 11 of the Reform Act, 1998 which in terms of Sections 11(1)(c) and (e) is expected to fix the tariff as well as the terms of licence.37. There are three different legislations in course and the Regulatory Commission has been constituted under the Reform Act, 1998 which in turn would be the Commission as contemplated under the Electricity Regulatory Commission Act, 1998 and the Electricity Act, 2003. In terms of first proviso to Section 82(1) of the Electricity Act, 2003 the State Electricity Regulatory Commission established by the State Government under Section 17 of the Electricity Regulatory Commission Act, 1998 and the enactment specified in the Schedule shall be the State Commission for the purposes of this Act. Even in terms of Section 185(3) of the Electricity Act, 2003 the said authority would be deemed to be an appropriate Commission for all purposes and intent as the Reform Act, 1998 has been specifically mentioned in Entry 3 of the Schedule to the Electricity Act, 2003. In other words, as already noticed the Regulatory Commission constituted by the said notification would be the appropriate Commission under all these Acts and is required to perform the functions as contemplated under Sections 11, 17 and 82 of the respective Acts.38. The functions assigned to the Regulatory Commission are wide enough to specifically impose an obligation on the Regulatory Commission to determine the tariff. The specialised performance of functions that are assigned to the Regulatory Commission can hardly be assumed by any other authority and particularly, the courts in exercise of their judicial discretion. The Tribunal constituted under the provisions of the Electricity Act, 2003, again being a specialised body, is expected to examine such issues, but this Court in exercise of its powers under Article 136 of the Constitution would not sit as an appellate authority over the formation of opinion and determination of tariff by the specialised bodies. We would prefer to leave this question open to be considered by the appropriate authority at the appropriate stage.39. We do not consider it appropriate to go into the merit or demerit of determination of tariff rates in the appeals. Determina24 tion of tariff is a function assigned legislatively to a competent forum/authority. Whether it is by exercise of legislative or subordinate legislative power or a policy decision, if the Act so requires, but it generally falls in the domain of legislative activity and the courts refrain from adverting into this arena.40. We have to further examine the legality of this issue in the light of the findings that we have recorded on the issues in relation to jurisdiction of the Regulatory Commission to determine/review the tariff. The jurisdiction of this Court is limited in this aspect. This Court has consistently taken the view that it would not be proper for the Court to examine the fixation of tariff rates or its revision as these matters are policy matters outside the preview of judicial intervention. The only explanation for judicial intervention in tariff fixation/revision is where the person aggrieved can show that the tariff fixation was illegal, arbitrary or ultra vires the Act. It would be termed as illegal if statutorily prescribed procedure is not followed or it is so perverse and arbitrary that it hurts the judicial conscience of the court making it necessary for the court to intervene. Even in these cases the scope of jurisdiction is a very limited one." (Underlining is ours) 23. In this regard, it has already been noticed that the Regulatory Commission had, on remand, by its order dated 19th January, 2011 reduced the rate of surcharge from 10% and 17.5% respectively to 7% and 10% respectively. The industrial establishments in the appeals before the learned Appellate Tribunal contended that the said rate is without justification inasmuch as the State Regulatory Commission in its order had unambiguously noticed that the cost to the consumers to switch over to the 66 KV supply would correspond to a much lower amount than what would work out on the basis of the rate of surcharge levied, details of which are available in paragraph 8 of the order of the State Regulatory Commission dated 19th January, 2011. However, a reading of the entire paragraph 8 of the said order of the State Regulatory Commission would go to show that the State Commission thought it proper to work out the appropriate rate of surcharge by adding a penal element to the cost of conversion to disincentivise the consumers from continuing to receive supply on the 11 KV transmission lines. It is on the aforesaid basis that an additional input had been added to the cost of conversion to work out the rate of surcharge as determined in the order dated 19th January, 2011. If the aforesaid is the basis for determination of the rate and that too by the Expert Body which has been upheld by the learned Appellate Tribunal we can find no fault with the said exercise. In this regard we may take note of the fact that though under the Act of 2003 "surcharge" is not specifically defined, the said expression stands "for an additional/extra charge ... surcharge is thus a super added charge, a charge over and above the usual or current dues ... it is in substance an addition to the stipulated rate of tariff." The above observations made in the context of the provisions of the Electricity (Supply) Act, 1948 in M/s Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board and Anr., AIR 1976 SC 127 , would be squarely applicable to the present case to dismiss all speculations with regard to the nature of the levy (surcharge) and the power of the Commission to impose the same at particular rate(s) as may be determined. | 0[ds]20. Insofar as the order of the High Court dismissing the Letter Patent Appeals filed by the industrial establishments is concerned the matter should not detain the Court. Not only the levy of surcharge has been upheld by this Court by dismissal of Civil Appeal No.10889 of 2010, though for the yearwhat stares at the face of the record is the consistent view taken by the Regulatory Commission in all the tariff orders commencing from the yearthat to offset the transmission and all other losses and other incidental charges incurred in enabling the Induction Furnace Units to draw power at 11 KV supply without switching over to 66 KV supply line, levy of surcharge on such consumers is necessary. The "compromise" and "concession" made and effected by issuing circular No.25/99 dated 8th June, 1999 must be understood to have come to an end with the introduction of the new electricity regime by the 2003 Act unless extension of the same has been explicitly made/recognized in any of the tariff orders, which fact is conspicuously absent. The absence of continuation of the said concession made by the Government in respect ofindustries in any of the tariff orders for the subsequent years i.e. after coming into force of the Act is a conscious decision of the Regulatory Commission with regard to the necessity and justifiability of the levy of surcharge on the defaulting industries. The reason for levy of surcharge being justifiable on the touchstone of the necessity to disincentivize the defaulting units cannot be faulted. The exercise being statutory and being clear and unambiguous as manifested by the tariff order, noticed and extracted above, there will be little room for taking any other view in the matter except to hold that the High Court was fully justified in dismissing the writ petitions. In fact, from another perspective, it can very well be said that the issue with regard to legality and justification for levy of surcharge stands foreclosed by the order of this Court dated 14th February, 2011 dismissing the Civil Appeal No.10889 of 2010 filed in the circumstances already noticed.21. This will bring the Court to a consideration of the other limb of the case, namely, the correctness of the quantum/rate of surcharge as determined by the Regulatory Commission and upheld by the learned Appellate Tribunal.In this regard, it has already been noticed that the Regulatory Commission had, on remand, by its order dated 19th January, 2011 reduced the rate of surcharge from 10% and 17.5% respectively to 7% and 10% respectively. The industrial establishments in the appeals before the learned Appellate Tribunal contended that the said rate is without justification inasmuch as the State Regulatory Commission in its order had unambiguously noticed that the cost to the consumers to switch over to the 66 KV supply would correspond to a much lower amount than what would work out on the basis of the rate of surcharge levied, details of which are available in paragraph 8 of the order of the State Regulatory Commission dated 19th January, 2011. However, a reading of the entire paragraph 8 of the said order of the State Regulatory Commission would go to show that the State Commission thought it proper to work out the appropriate rate of surcharge by adding a penal element to the cost of conversion to disincentivise the consumers from continuing to receive supply on the 11 KV transmission lines. It is on the aforesaid basis that an additional input had been added to the cost of conversion to work out the rate of surcharge as determined in the order dated 19th January, 2011. If the aforesaid is the basis for determination of the rate and that too by the Expert Body which has been upheld by the learned Appellate Tribunal we can find no fault with the said exercise. In this regard we may take note of the fact that though under the Act of 2003 "surcharge" is not specifically defined, the said expression stands "for an additional/extra charge ... surcharge is thus a super added charge, a charge over and above the usual or current dues ... it is in substance an addition to the stipulated rate of tariff." The above observations made in the context of the provisions of the Electricity (Supply) Act, 1948 in M/s Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board and Anr., AIR 1976 SC 127 , would be squarely applicable to the present case to dismiss all speculations with regard to the nature of the levy (surcharge) and the power of the Commission to impose the same at particular rate(s) as may be determined. | 0 | 5,057 | 836 | ### 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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62 of the Electricity Act, 2003 requires an appropriate Commission to determine the tariff in accordance with the provisions of the Act. The Regulatory Commission has been constituted and notified under the provisions of Section 3 read with Section 11 of the Reform Act, 1998 which in terms of Sections 11(1)(c) and (e) is expected to fix the tariff as well as the terms of licence.37. There are three different legislations in course and the Regulatory Commission has been constituted under the Reform Act, 1998 which in turn would be the Commission as contemplated under the Electricity Regulatory Commission Act, 1998 and the Electricity Act, 2003. In terms of first proviso to Section 82(1) of the Electricity Act, 2003 the State Electricity Regulatory Commission established by the State Government under Section 17 of the Electricity Regulatory Commission Act, 1998 and the enactment specified in the Schedule shall be the State Commission for the purposes of this Act. Even in terms of Section 185(3) of the Electricity Act, 2003 the said authority would be deemed to be an appropriate Commission for all purposes and intent as the Reform Act, 1998 has been specifically mentioned in Entry 3 of the Schedule to the Electricity Act, 2003. In other words, as already noticed the Regulatory Commission constituted by the said notification would be the appropriate Commission under all these Acts and is required to perform the functions as contemplated under Sections 11, 17 and 82 of the respective Acts.38. The functions assigned to the Regulatory Commission are wide enough to specifically impose an obligation on the Regulatory Commission to determine the tariff. The specialised performance of functions that are assigned to the Regulatory Commission can hardly be assumed by any other authority and particularly, the courts in exercise of their judicial discretion. The Tribunal constituted under the provisions of the Electricity Act, 2003, again being a specialised body, is expected to examine such issues, but this Court in exercise of its powers under Article 136 of the Constitution would not sit as an appellate authority over the formation of opinion and determination of tariff by the specialised bodies. We would prefer to leave this question open to be considered by the appropriate authority at the appropriate stage.39. We do not consider it appropriate to go into the merit or demerit of determination of tariff rates in the appeals. Determina24 tion of tariff is a function assigned legislatively to a competent forum/authority. Whether it is by exercise of legislative or subordinate legislative power or a policy decision, if the Act so requires, but it generally falls in the domain of legislative activity and the courts refrain from adverting into this arena.40. We have to further examine the legality of this issue in the light of the findings that we have recorded on the issues in relation to jurisdiction of the Regulatory Commission to determine/review the tariff. The jurisdiction of this Court is limited in this aspect. This Court has consistently taken the view that it would not be proper for the Court to examine the fixation of tariff rates or its revision as these matters are policy matters outside the preview of judicial intervention. The only explanation for judicial intervention in tariff fixation/revision is where the person aggrieved can show that the tariff fixation was illegal, arbitrary or ultra vires the Act. It would be termed as illegal if statutorily prescribed procedure is not followed or it is so perverse and arbitrary that it hurts the judicial conscience of the court making it necessary for the court to intervene. Even in these cases the scope of jurisdiction is a very limited one." (Underlining is ours) 23. In this regard, it has already been noticed that the Regulatory Commission had, on remand, by its order dated 19th January, 2011 reduced the rate of surcharge from 10% and 17.5% respectively to 7% and 10% respectively. The industrial establishments in the appeals before the learned Appellate Tribunal contended that the said rate is without justification inasmuch as the State Regulatory Commission in its order had unambiguously noticed that the cost to the consumers to switch over to the 66 KV supply would correspond to a much lower amount than what would work out on the basis of the rate of surcharge levied, details of which are available in paragraph 8 of the order of the State Regulatory Commission dated 19th January, 2011. However, a reading of the entire paragraph 8 of the said order of the State Regulatory Commission would go to show that the State Commission thought it proper to work out the appropriate rate of surcharge by adding a penal element to the cost of conversion to disincentivise the consumers from continuing to receive supply on the 11 KV transmission lines. It is on the aforesaid basis that an additional input had been added to the cost of conversion to work out the rate of surcharge as determined in the order dated 19th January, 2011. If the aforesaid is the basis for determination of the rate and that too by the Expert Body which has been upheld by the learned Appellate Tribunal we can find no fault with the said exercise. In this regard we may take note of the fact that though under the Act of 2003 "surcharge" is not specifically defined, the said expression stands "for an additional/extra charge ... surcharge is thus a super added charge, a charge over and above the usual or current dues ... it is in substance an addition to the stipulated rate of tariff." The above observations made in the context of the provisions of the Electricity (Supply) Act, 1948 in M/s Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board and Anr., AIR 1976 SC 127 , would be squarely applicable to the present case to dismiss all speculations with regard to the nature of the levy (surcharge) and the power of the Commission to impose the same at particular rate(s) as may be determined.
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20. Insofar as the order of the High Court dismissing the Letter Patent Appeals filed by the industrial establishments is concerned the matter should not detain the Court. Not only the levy of surcharge has been upheld by this Court by dismissal of Civil Appeal No.10889 of 2010, though for the yearwhat stares at the face of the record is the consistent view taken by the Regulatory Commission in all the tariff orders commencing from the yearthat to offset the transmission and all other losses and other incidental charges incurred in enabling the Induction Furnace Units to draw power at 11 KV supply without switching over to 66 KV supply line, levy of surcharge on such consumers is necessary. The "compromise" and "concession" made and effected by issuing circular No.25/99 dated 8th June, 1999 must be understood to have come to an end with the introduction of the new electricity regime by the 2003 Act unless extension of the same has been explicitly made/recognized in any of the tariff orders, which fact is conspicuously absent. The absence of continuation of the said concession made by the Government in respect ofindustries in any of the tariff orders for the subsequent years i.e. after coming into force of the Act is a conscious decision of the Regulatory Commission with regard to the necessity and justifiability of the levy of surcharge on the defaulting industries. The reason for levy of surcharge being justifiable on the touchstone of the necessity to disincentivize the defaulting units cannot be faulted. The exercise being statutory and being clear and unambiguous as manifested by the tariff order, noticed and extracted above, there will be little room for taking any other view in the matter except to hold that the High Court was fully justified in dismissing the writ petitions. In fact, from another perspective, it can very well be said that the issue with regard to legality and justification for levy of surcharge stands foreclosed by the order of this Court dated 14th February, 2011 dismissing the Civil Appeal No.10889 of 2010 filed in the circumstances already noticed.21. This will bring the Court to a consideration of the other limb of the case, namely, the correctness of the quantum/rate of surcharge as determined by the Regulatory Commission and upheld by the learned Appellate Tribunal.In this regard, it has already been noticed that the Regulatory Commission had, on remand, by its order dated 19th January, 2011 reduced the rate of surcharge from 10% and 17.5% respectively to 7% and 10% respectively. The industrial establishments in the appeals before the learned Appellate Tribunal contended that the said rate is without justification inasmuch as the State Regulatory Commission in its order had unambiguously noticed that the cost to the consumers to switch over to the 66 KV supply would correspond to a much lower amount than what would work out on the basis of the rate of surcharge levied, details of which are available in paragraph 8 of the order of the State Regulatory Commission dated 19th January, 2011. However, a reading of the entire paragraph 8 of the said order of the State Regulatory Commission would go to show that the State Commission thought it proper to work out the appropriate rate of surcharge by adding a penal element to the cost of conversion to disincentivise the consumers from continuing to receive supply on the 11 KV transmission lines. It is on the aforesaid basis that an additional input had been added to the cost of conversion to work out the rate of surcharge as determined in the order dated 19th January, 2011. If the aforesaid is the basis for determination of the rate and that too by the Expert Body which has been upheld by the learned Appellate Tribunal we can find no fault with the said exercise. In this regard we may take note of the fact that though under the Act of 2003 "surcharge" is not specifically defined, the said expression stands "for an additional/extra charge ... surcharge is thus a super added charge, a charge over and above the usual or current dues ... it is in substance an addition to the stipulated rate of tariff." The above observations made in the context of the provisions of the Electricity (Supply) Act, 1948 in M/s Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board and Anr., AIR 1976 SC 127 , would be squarely applicable to the present case to dismiss all speculations with regard to the nature of the levy (surcharge) and the power of the Commission to impose the same at particular rate(s) as may be determined.
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Indian Chamber of Commerce Vs. Commissioner of Income Tax, West Bengal II, Calcutta | (i) for profit or (ii) without profit ? Even if (a) and (b) are answered affirmatively, if (c) (i) is answered affirmatively, the claim for exemption collapses. The solution to the problem of an activity being one for or irrespective of profit is gathered on a footing or facts. What is the real nature of the activity? one which is ordinarily carried on by ordinary people for gain? Is there a built in prescription in the constitution against making a profit? Has there been in practice, profit from this venture ? Although this last is a weak test. The mere fact that a service is rendered is no answer to chargeability because all income is often derived by rendering some service or other.21. Further, what is an activity for profit depends on the correct connotation of the preposition. For used with the active participle of a verb means for the purpose of (Sec judgment of Westbury C., 1127) For has many shades of meaning. It connotes the end with reference to which anything is done. It also bears the sense of appropriate or adopted to: suitable to purpose vide Blacks Legal Dictionary. An activity which yields a profit or gain in the ordinary course must be presumed to have been done for profit or gain. Of course, an extreme case could be imagined where without intent or purpose an activity may yield profit. Even so, it may legitimately be said that the activity is appropriate or adapted to such profit.22. We may wind up with a brief rounding off and indication on the approach. A pragmatic condition, written or unwritten, proved by. a prescription of profits or by long years of invariable practice or spelt from strong surrounding circumstances indicative of anti-profit motivation such a condition will qualify for charitable purposes and legitimately get round the fiscal hook. Short of it, the tax tackle holds you fast. A word about the burden of proof is necessary here. Income. Ordinarily chargeable, can be free from exigibility only if the assessee discharges the onus of bringing himself within s. 2(15). In so doing, he has to attract and repel attract the condition that his objects are of general public utility and repel the charge that he is advancing these objects by involvement in activities f or profit. Once this broad dual basis is made out, the Revenue will not go into meticulous mathematics and charge every chance excess or random surplus; If the activity is Prone to yielding income and in fact results in profits, the Revenue will examine the reality or pretence of the condition, that the activity is not for profit. Here, one may well say: Suit the action to the word, the word to the action. If such be the legal criteria for fixing charitable purpose, low does the Indian Chamber fare? The substantial item of income comes from the share of profits in the firm called M/s. Calcutta Licensed Measurers. True, the issuance of weighment and measurement certificates is a great facility for traders and under the Commercial Documents Evidence Act only recognised institutions arc permitted to issue such certificates. Recognition be speaks the status, integrity and efficiency of the institution but does not transmute a service for profit in to non-profitable activity. It is irrelevant whether this service is in implementation of or interwoven with trade promotion. What is partinent is whether the advancement of trade promotion by issuing such certificates is done for a nominal fee conditioned by the cost of the operation, and profit making by this means is tabooed. For there is nothing in the memorandum or articles of association which sets any limit on making a large profit this way. And, after all, any institution or individual m ay set up a weighment and measurement business as a source of income and if it is of sufficient probity and competence recognition to may well be accorded under the Commercial Documents Evidence Act. We cannot mix up or confuse the two concept. The activity of charging fees and issuing certificates of origin valuable as a service though it be, is in not different position. Both these activities are amenable to tax as being carried on for profit, there being nothing to show that the Chamber was undertaking this job on a no profit basis. The presumption, if at all, is that a businessman association does a business of it. more so when the facility is available to members and non members. Not infrequently one comes across weighment stations where loaded trucks are weighed for payment as a business. So also approved valuers value property as business and charge for that service. Merely because it is carried on by a Chamber of Commerce no difference in incidents a rises and tax incidence can be repelled only if the work is done explicitly on a no profit basis. Such is not shown to be the case here.The objects of the Chamber include settlement of disputes among traders by arbitration. This is undoubtedly a service of general public utility preventing protracted commercial litigation. If the fee charged for doing so is more or less commensurate with the expense the Chamber has to incur, a minor surplus will not attract tax. But no such restriction is written into the rules governing the Chamber. It may charge a heavy sum and spend much less for hiring experts to decide the dispute. There is no magna carta hiding the Indian or Cochin or Bengal Chamber of Commerce not to sell arbitral justice. Suppose specialist in mercantile law and practice of reputable integrity offers himself regularly for arbitration of commercial disputes for a high fee, is he not making an income? The difference between the two is as between Tweedledum and Tweedledee. Surely, if an innate, articulated, restraint on the levy for these undoubted services to Trade existed as a fact, so as to remove the slur of activity for profit, then the umbrella of charitable purpose would protect small surpluses. | 0[ds]The assesses the Indian Chamber of Commerce, , was assessed for the accounting yearon the income which arose from the three heads of arbitration fees, fees for certificates of origin and the share of profits in the firm M/s. Calcutta Licensed Measurers which issued weighment and measurement certificates charging a fee therefore the return for the assessment year showed a profit of Rs. 1, 58, 690/made up of a small amount from arbitration fees, and a similar sum from fees for issue of certificates of origin but a substantial sum by way of share of income from the fees charged for weighment and measurement. Although theofficer repelled the claim of charitable purpose on the view that these activities were for profit the Appellate Tribunal took a contrary view reversing the concurrent findings of theofficer and the Appellate Assistant Commissioner. The conclusion of the Tribunal was that s. 2(15) applied but the High Court on a reference under s. 256(1) of the Act, answered the question in favour of the Revenue.We have indicated earlier that the various High Courts have taken contrary views. Kerala has consistently held on facts substantially identical that s. 2(15) is attracted. Andhra Pradesh has concurred, while Calcutta and Mysore have ranged themselves on the opposite side. A recent decision of this Court earlier mentioned has given some telling guidelines although the precise facet pressed before us may not be said to have been wholly covered bythis standpoint be sound, the three services which have yielded profits, although wrapped in, ent angled orintertwined with theobject of promoting trade interests, are still liable to tax, there being no visible limitation on the revenues that Any arise from them and these precise activities could be carried on by private individuals for profitThe legallies along a realistic line of reasoning taking care to avoid the extreme position of Shri Sharma which will render the last limb of s. 2(15) illusory or ineffectual and as serviceable for tax exemption of charities as the appendix to the human physiology. In our view the key to the problem is furnished not merely by a careful , . Took at the history of the evil and the Parliamentary debate at least the Finance Ministers speech on the new change but the language of s. 2(15) itself read in the light of the guidelines in Lok Shikshana Trust (supra) .12. Taking aof s. 2(15) with special emphasis on the last concluding words, we have to interpret charitable purpose in such manner that we do not burke any word, treat any expression as redundant or miss the accent of the amendatory phrase. So viewed, an institution which carries out charitable purpose out of income derived from property held under trust wholly for charitable purposes may still forfeit the claim to exemption in respect of such takings or incomes as may come to it from pursuing any activity for profit. Notwithstanding the possibility of obscurity and of dual meanings when the emphasis is shifted from advancement to object used in s. 2(15), we are clear in our minds that by the new definition the benefit of exclusion from total income is taken away where in accomplishing a charitable purpose the institution engages itself in activities for profit. The Calcutta decisions are right in linking; activities for profit with advancement of the object. If you want immunity from taxation, your means of fulfilling charitable purposes must be unsullied by profit making ventures. The 11 advancement of the object of general public utility must not involve the carrying on of any activity for profit If it does, you forfeit. The Kerala decisions fall into the fallacy of emphasizing the linkage between the objects of public utility and the activity carried on.According to that view, . whatever the activity, if it is intertwined with, A wrapped in or entangled with the object of charitable purpose even if profit results there from, the immunity from taxation is still available. This will result in absurd conclusions. Let us take this very case of a Chamber of Commerce which strives to promote the general interests of the trading community. If it runs certain special types of services for the benefit of manufacturers and charges remuneration from them, it is undoubtedly an activity which, if carried on by private agencies, would be taxable. Why should the Chamber be granted exemption for making income by methods which in the hands of other people would have been exigible to tax ? This would end up in the conclusion that a Chamber of Commerce may run a printing press, advertisement business market exploration activity or even export promotion business and levy huge sums from its customers whether they are members of the organisation or not and still claim a blanket exemption from tax on the score that the objects of general public utility which it has set for itself implied these activities eve n though profits or surpluses may arise there from. Therefore, the emphasis is not on the object of public utility and the carrying on of related activity for profit. On the other hand, if in the advancement of these objects the Chamber re sorts to carrying on of activities for profit, then necessarily s. 2(15) cannot confer cover. The advancement of charitable objects must not involve profit making activities. That is the mandate of the new amendment.13. The opposite position in its extreme form is equally untenable. While Shri Sharma is right that merely because service is rendered to traders escapement from tax liability does not follow. Every type ofactivity, where some charge is levied from the beneficiary and at the end of the year some surplus is left behind, does not lose the benefit of s. 2(15). For, then., one cannot conceive of any object of general public utility which can be advanced by the Chamber of Commerce. For every such activity some fee will have to be levied if the Chamber is not to turn bankrupt and merely because a fee is levied one cannot castigate the activity as one for profit. Therefore it is a false dilemma to talk of activity for profit as against activity rendered free. The true demarcating line lies in between.In our view, the ingredients essential to earn freedom from tax are discernible from the definition, if insightfully read against the brooding presence of the evil to be suppressed and the beneficial object to be served. The policy of the statute is to give tax relief for charitable purpose, but what falls outside the pale of charitable purpose ? The institution must confine itself to the carrying on of activities which are not for profit. It is not enough if the object be one of general public utility. The attainment of that object shall not involve activities for profit. What then is an activity for profit ? An undertaking by a business organisation is ordinarily assumed to be for profit unless expressly or by necessary implication or by eloquent surrounding circumstances the making of profit stands loudly negatived. We will illustrate to illumine. If there is a restrictive provision in theof the charitable organisation which insists that the charges levied for services of public utility rendered are to be on a no profit basis, it . clearly earns the benefit of s. 2(15). For instance, a funeral home, an S. P.C.A. Or a cooperative may render services to the public but write a condition into its constitution that it shall not charge more than is actually needed for the rendering of the services, may be it may not be an exact equivalent, such mathematical precision being impossible in the case of variables, may be a little surplus is left over at the end of the year the broad inhibition against making profit is a good guarantee that the carrying on of the activity is not for pro f it. As an antithesis, take a funeral home or an animal welfare organisation or a super bazaar run for general public utility by an institution which charges large sums and makes huge profits. Indubitably they render services of general public utility. Their objects are charitable but their activities are for profit Take the case of a blood bank which collects blood on payment and supplies blood for a higher price thereby making profit Undoubtedly the blood bank may b e said to be a general public utility but if it advances its public utility by sale of blood as an activity for (making) profit, it is difficult to call its purposes charitable. It is just blood business !In the United States, for instance, there are many funeral homes which make considerable profits. There are super bazaars and animal welfare institutions in many countries which may be run on a profit motive. Inevitably these activities are caught in the meshes of the tax la w. Readymade nostrums like dominant intent" incidental profits, real object as against ostensible purpose, entangled, wrapped in, and the like fail as criteria in critical cases, although they have been liberally used in judicial vocabulary. In this branch of law verbal labels are convenient but not infallible. We have to be careful not to be victimised by adjectives and appellations which mislead, if pressed too far, although they may loosely serve in the ordinary run of case.14. To sum up, s. 2(15) excludes from exemption the carrying on of activities for profit even they are linked with the objectives of general public utility, because the statute interdicts, for purposes of tax relief, the advancement of such objects by involvement in the carrying on of activities for profit. We appreciate the involved language we use but when legislative draftsmanship declines to be simple, interpretative complexity becomes a judicial necessity.We may wind up with a brief rounding off and indication on the approach. A pragmatic condition, written or unwritten, proved by. a prescription of profits or by long years of invariable practice or spelt from strong surrounding circumstances indicative ofmotivation such a condition will qualify for charitable purposes and legitimately get round the fiscal hook. Short of it, the tax tackle holds you fast. A word about the burden of proof is necessary here. Income. Ordinarily chargeable, can be free from exigibility only if the assessee discharges the onus of bringing himself within s. 2(15). In so doing, he has to attract and repel attract the condition that his objects are of general public utility and repel the charge that he is advancing these objects by involvement in activities f or profit. Once this broad dual basis is made out, the Revenue will not go into meticulous mathematics and charge every chance excess or random surplus; If the activity is Prone to yielding income and in fact results in profits, the Revenue will examine the reality or pretence of the condition, that the activity is not for profit. Here, one may well say: Suit the action to the word, the word to the action. If such be the legal criteria for fixing charitable purpose, low does the Indian Chamber fare? The substantial item of income comes from the share of profits in the firm called M/s. Calcutta Licensed Measurers. True, the issuance of weighment and measurement certificates is a great facility for traders and under the Commercial Documents Evidence Act only recognised institutions arc permitted to issue such certificates. Recognition be speaks the status, integrity and efficiency of the institution but does not transmute a service for profit in toactivity. It is irrelevant whether this service is in implementation of or interwoven with trade promotion. What is partinent is whether the advancement of trade promotion by issuing such certificates is done for a nominal fee conditioned by the cost of the operation, and profit making by this means is tabooed. For there is nothing in the memorandum or articles of association which sets any limit on making a large profit this way. And, after all, any institution or individual m ay set up a weighment and measurement business as a source of income and if it is of sufficient probity and competence recognition to may well be accorded under the Commercial Documents Evidence Act. We cannot mix up or confuse the two concept. The activity of charging fees and issuing certificates of origin valuable as a service though it be, is in not different position. Both these activities are amenable to tax as being carried on for profit, there being nothing to show that the Chamber was undertaking this job on a no profit basis. The presumption, if at all, is that a businessman association does a business of it. more so when the facility is available to members and non members. Not infrequently one comes across weighment stations where loaded trucks are weighed for payment as a business. So also approved valuers value property as business and charge for that service. Merely because it is carried on by a Chamber of Commerce no difference in incidents a rises and tax incidence can be repelled only if the work is done explicitly on a no profit basis. Such is not shown to be the case here.The objects of the Chamber include settlement of disputes among traders by arbitration. This is undoubtedly a service of general public utility preventing protracted commercial litigation. If the fee charged for doing so is more or less commensurate with the expense the Chamber has to incur, a minor surplus will not attract tax. But no such restriction is written into the rules governing the Chamber. It may charge a heavy sum and spend much less for hiring experts to decide the dispute. There is no magna carta hiding the Indian or Cochin or Bengal Chamber of Commerce not to sell arbitral justice. Suppose specialist in mercantile law and practice of reputable integrity offers himself regularly for arbitration of commercial disputes for a high fee, is he not making an income? The difference between the two is as between Tweedledum and Tweedledee. Surely, if an innate, articulated, restraint on the levy for these undoubted services to Trade existed as a fact, so as to remove the slur of activity for profit, then the umbrella of charitable purpose would protect small surpluses. | 0 | 6,216 | 2,589 | ### 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:
(i) for profit or (ii) without profit ? Even if (a) and (b) are answered affirmatively, if (c) (i) is answered affirmatively, the claim for exemption collapses. The solution to the problem of an activity being one for or irrespective of profit is gathered on a footing or facts. What is the real nature of the activity? one which is ordinarily carried on by ordinary people for gain? Is there a built in prescription in the constitution against making a profit? Has there been in practice, profit from this venture ? Although this last is a weak test. The mere fact that a service is rendered is no answer to chargeability because all income is often derived by rendering some service or other.21. Further, what is an activity for profit depends on the correct connotation of the preposition. For used with the active participle of a verb means for the purpose of (Sec judgment of Westbury C., 1127) For has many shades of meaning. It connotes the end with reference to which anything is done. It also bears the sense of appropriate or adopted to: suitable to purpose vide Blacks Legal Dictionary. An activity which yields a profit or gain in the ordinary course must be presumed to have been done for profit or gain. Of course, an extreme case could be imagined where without intent or purpose an activity may yield profit. Even so, it may legitimately be said that the activity is appropriate or adapted to such profit.22. We may wind up with a brief rounding off and indication on the approach. A pragmatic condition, written or unwritten, proved by. a prescription of profits or by long years of invariable practice or spelt from strong surrounding circumstances indicative of anti-profit motivation such a condition will qualify for charitable purposes and legitimately get round the fiscal hook. Short of it, the tax tackle holds you fast. A word about the burden of proof is necessary here. Income. Ordinarily chargeable, can be free from exigibility only if the assessee discharges the onus of bringing himself within s. 2(15). In so doing, he has to attract and repel attract the condition that his objects are of general public utility and repel the charge that he is advancing these objects by involvement in activities f or profit. Once this broad dual basis is made out, the Revenue will not go into meticulous mathematics and charge every chance excess or random surplus; If the activity is Prone to yielding income and in fact results in profits, the Revenue will examine the reality or pretence of the condition, that the activity is not for profit. Here, one may well say: Suit the action to the word, the word to the action. If such be the legal criteria for fixing charitable purpose, low does the Indian Chamber fare? The substantial item of income comes from the share of profits in the firm called M/s. Calcutta Licensed Measurers. True, the issuance of weighment and measurement certificates is a great facility for traders and under the Commercial Documents Evidence Act only recognised institutions arc permitted to issue such certificates. Recognition be speaks the status, integrity and efficiency of the institution but does not transmute a service for profit in to non-profitable activity. It is irrelevant whether this service is in implementation of or interwoven with trade promotion. What is partinent is whether the advancement of trade promotion by issuing such certificates is done for a nominal fee conditioned by the cost of the operation, and profit making by this means is tabooed. For there is nothing in the memorandum or articles of association which sets any limit on making a large profit this way. And, after all, any institution or individual m ay set up a weighment and measurement business as a source of income and if it is of sufficient probity and competence recognition to may well be accorded under the Commercial Documents Evidence Act. We cannot mix up or confuse the two concept. The activity of charging fees and issuing certificates of origin valuable as a service though it be, is in not different position. Both these activities are amenable to tax as being carried on for profit, there being nothing to show that the Chamber was undertaking this job on a no profit basis. The presumption, if at all, is that a businessman association does a business of it. more so when the facility is available to members and non members. Not infrequently one comes across weighment stations where loaded trucks are weighed for payment as a business. So also approved valuers value property as business and charge for that service. Merely because it is carried on by a Chamber of Commerce no difference in incidents a rises and tax incidence can be repelled only if the work is done explicitly on a no profit basis. Such is not shown to be the case here.The objects of the Chamber include settlement of disputes among traders by arbitration. This is undoubtedly a service of general public utility preventing protracted commercial litigation. If the fee charged for doing so is more or less commensurate with the expense the Chamber has to incur, a minor surplus will not attract tax. But no such restriction is written into the rules governing the Chamber. It may charge a heavy sum and spend much less for hiring experts to decide the dispute. There is no magna carta hiding the Indian or Cochin or Bengal Chamber of Commerce not to sell arbitral justice. Suppose specialist in mercantile law and practice of reputable integrity offers himself regularly for arbitration of commercial disputes for a high fee, is he not making an income? The difference between the two is as between Tweedledum and Tweedledee. Surely, if an innate, articulated, restraint on the levy for these undoubted services to Trade existed as a fact, so as to remove the slur of activity for profit, then the umbrella of charitable purpose would protect small surpluses.
### Response:
0
### Explanation:
blood bank which collects blood on payment and supplies blood for a higher price thereby making profit Undoubtedly the blood bank may b e said to be a general public utility but if it advances its public utility by sale of blood as an activity for (making) profit, it is difficult to call its purposes charitable. It is just blood business !In the United States, for instance, there are many funeral homes which make considerable profits. There are super bazaars and animal welfare institutions in many countries which may be run on a profit motive. Inevitably these activities are caught in the meshes of the tax la w. Readymade nostrums like dominant intent" incidental profits, real object as against ostensible purpose, entangled, wrapped in, and the like fail as criteria in critical cases, although they have been liberally used in judicial vocabulary. In this branch of law verbal labels are convenient but not infallible. We have to be careful not to be victimised by adjectives and appellations which mislead, if pressed too far, although they may loosely serve in the ordinary run of case.14. To sum up, s. 2(15) excludes from exemption the carrying on of activities for profit even they are linked with the objectives of general public utility, because the statute interdicts, for purposes of tax relief, the advancement of such objects by involvement in the carrying on of activities for profit. We appreciate the involved language we use but when legislative draftsmanship declines to be simple, interpretative complexity becomes a judicial necessity.We may wind up with a brief rounding off and indication on the approach. A pragmatic condition, written or unwritten, proved by. a prescription of profits or by long years of invariable practice or spelt from strong surrounding circumstances indicative ofmotivation such a condition will qualify for charitable purposes and legitimately get round the fiscal hook. Short of it, the tax tackle holds you fast. A word about the burden of proof is necessary here. Income. Ordinarily chargeable, can be free from exigibility only if the assessee discharges the onus of bringing himself within s. 2(15). In so doing, he has to attract and repel attract the condition that his objects are of general public utility and repel the charge that he is advancing these objects by involvement in activities f or profit. Once this broad dual basis is made out, the Revenue will not go into meticulous mathematics and charge every chance excess or random surplus; If the activity is Prone to yielding income and in fact results in profits, the Revenue will examine the reality or pretence of the condition, that the activity is not for profit. Here, one may well say: Suit the action to the word, the word to the action. If such be the legal criteria for fixing charitable purpose, low does the Indian Chamber fare? The substantial item of income comes from the share of profits in the firm called M/s. Calcutta Licensed Measurers. True, the issuance of weighment and measurement certificates is a great facility for traders and under the Commercial Documents Evidence Act only recognised institutions arc permitted to issue such certificates. Recognition be speaks the status, integrity and efficiency of the institution but does not transmute a service for profit in toactivity. It is irrelevant whether this service is in implementation of or interwoven with trade promotion. What is partinent is whether the advancement of trade promotion by issuing such certificates is done for a nominal fee conditioned by the cost of the operation, and profit making by this means is tabooed. For there is nothing in the memorandum or articles of association which sets any limit on making a large profit this way. And, after all, any institution or individual m ay set up a weighment and measurement business as a source of income and if it is of sufficient probity and competence recognition to may well be accorded under the Commercial Documents Evidence Act. We cannot mix up or confuse the two concept. The activity of charging fees and issuing certificates of origin valuable as a service though it be, is in not different position. Both these activities are amenable to tax as being carried on for profit, there being nothing to show that the Chamber was undertaking this job on a no profit basis. The presumption, if at all, is that a businessman association does a business of it. more so when the facility is available to members and non members. Not infrequently one comes across weighment stations where loaded trucks are weighed for payment as a business. So also approved valuers value property as business and charge for that service. Merely because it is carried on by a Chamber of Commerce no difference in incidents a rises and tax incidence can be repelled only if the work is done explicitly on a no profit basis. Such is not shown to be the case here.The objects of the Chamber include settlement of disputes among traders by arbitration. This is undoubtedly a service of general public utility preventing protracted commercial litigation. If the fee charged for doing so is more or less commensurate with the expense the Chamber has to incur, a minor surplus will not attract tax. But no such restriction is written into the rules governing the Chamber. It may charge a heavy sum and spend much less for hiring experts to decide the dispute. There is no magna carta hiding the Indian or Cochin or Bengal Chamber of Commerce not to sell arbitral justice. Suppose specialist in mercantile law and practice of reputable integrity offers himself regularly for arbitration of commercial disputes for a high fee, is he not making an income? The difference between the two is as between Tweedledum and Tweedledee. Surely, if an innate, articulated, restraint on the levy for these undoubted services to Trade existed as a fact, so as to remove the slur of activity for profit, then the umbrella of charitable purpose would protect small surpluses.
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The Director Of Industries & Commerce. Government Of A. P., Vs. V. Venkata Reddy & Ors | law then in force in any State or Union Territory by virtue of clause (b) of Article 35 of the Constitution prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, that State or Union territory, any requirement as to residence therein prior to such employment or appointment shall cease to have effect and is hereby repealed." 16. There is no doubt that the impugned Mulki Rules fall within S. 2 and if there was nothing more they would stand repealed. But the second purpose of Parliament was achieved by enacting S. 3 which provided :"3. (1) The Central Government may, by notification in the official Gazette, make rules prescribing, in regard to appointments to - (a) any subordinate service or post under the State Government of Andhra Pradesh, or (b) any subordinate service or post under the control of the Administrator of Himachal Pradesh, Manipur or Tripura, or (c) any service or post under a local or other authority (other than a cantonment board) within the Telangana area of Andhra Pradesh or within the Union territory of Himachal Pradesh, Manipur or Tripura, any requirement as to residence within the Telengana area or the said Union Territory, as the case may be, prior to such appointment." 17. Section 4 provided for Parliamentary scrutiny of rules and S. 5 dealt with duration of rules. Section 5, as originally enacted, provided :"Section 3 and all rules made thereunder shall cease to have effect on the expiration of five years from the commencement of this Act, but such cesser shall not affect the validity of any appointment previously made in pursuance of the said rules." The words "five years" had subsequently been substituted by the words "fifteen years." 18. In pursuance of this Act certain rules, called the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959 were made. The Act and the Rules were challenged before this Court in (1970) 1 SCR 115 = AIR 1970 SC 422 . This Court held that S. 3 of the Public Employment (Requirement as to Residence) Act, 1957, insofar as it related to Telangana - we say nothing about the order parts - and R. 3 of the Rules made under this Act were ultra vires the Constitution. No opinion was expressed in this judgment on the point whether the Mulki Rules existing in the former Hyderabad State should continue to operate by virtue of Art. 35 (b). 19. It is urged before us that if S. 3 is void, so is S. 2 because Section 2 and Section 3 of the said Act from one scheme; in other words, it was not the intention of Parliament to simply repeal the existing laws in Telangana dealing with residential requirements for the purposes of appointment, the intention being to substitute other rules in place of the earlier rules.20. It is quite clear that Parliament had made up its mind that rules requiring residence as qualification for appointment to services for offices shall continue because the Public Employment Act enables the Central Government to make such rules. Not only that, but S. 5 assumes that rules will be made and it is on this assumption that S. 5 originally proceeded to give a life of five years to them from the commencement of the Act. It is impossible to read Section 5 and S. 3 together without coming to the conclusion that it was the intention of Parliament that Central Government would make the necessary rules. The Central Government also understood the intention to be the same because it acted under Section 1 (2) and S. 3 simultaneously. In other words, the date of commencement of the Act was fixed as March 21, 1959, and the rules also came into force on the same date. 21. A number of authorities of this Court and other authorities have been cited before us in order to make us determine whether S. 2 is not severable from S. 3 of the Public Employment Act. It is not necessary to refer to them here because the principles are well-known and have been re-iterated in a number of cases of this Court, including R. M. D. Chamarbaugwala v. Union of India, 1957 SCR 930 = AIR 1957 SC 628 . It seems to us that principles 1 and 3, mentioned in this judgment at p. 950 apply to the facts of this case, In our view it is clear that Parliament would not have enacted S. 2 without S. 3 as far as Telangana is concerned. The whole history of the legislation, its object title and the Preamble to it, point to that conclusion. Further, the Constitution (Seventh Amendment) Act, 1956, substituting new Article 371 for the old also shows that it was intended to give special consideration to the Telangana region. 22. We may mention that the earlier Full Bench came to the same conclusion in AIR 1971 Andh Pra 118 (FB). 23. It was urged before us that S. 2 insofar as it dealt with Telangana region cannot be given an independent existence. We are unable to accede to this.It is only a matter of drafting and if the Telangana region had been dealt with separately in a separate Act we would have had no hesitation in holding that S. 2 would fall with S. 3. The fact that S. 2 deals with laws and rules in various States would not prevent us from separating the valid portion from the invalid portion.This Court specifically held that S. 3 was bad insofar as it dealt with the Telangana region. We hold that S. 2 is also bad insofar as it dealt with Telangana area. 24. We may mention that we are not concerned with the interpretation of the Mulki Rules and their applicability after the adaptation. No such question was answered by the Full Bench or was dealt with by the Division Bench. 25. | 1[ds]On this question the Judges of the Full Bench are agreed that the answer must be in the affirmative. The words "laws in force in the territory of India" in Art. 35 (b) also occur in Art. 372, which continue in force existing laws which existed not only in the Provinces of British India but in all Indian States.It would be remarkable if it were otherwise. In the context of Art. 35 (b) and Art. 372 what has to be seen is not whether the State of Hyderabad was part of the territory of India before the commencement of the Constitution but whether its territory is included in India after its commencement. The same test applies to the old provinces or part of Provinces of British India.This Courts decision in Janardan Reddy v. The State, (1950) SCR 940 = (AIR 1951 SC 124 ) on the construction of Article 136 of the Constitution proceeded on the basis that to Art. 136 "the normal mode of interpreting a legislation as prospective" should be applied. We are not concerned with any such consideration while interpreting Art. 35 (b) of the ConstitutionThis Court interpreted Art. 16 (3) in (1970) 1 SCR 115 = (AIR 1970 SC 422 ) to mean that it speaks of a whole State as the venue for residential qualifications. It cannot be said that the impugned Mulki Rules could not be provided for by Parliament under Art. 16 (3). They are with respect to the matter referred to in Art. 16 (3). Article 16 (3) confers legislative power on Parliament with respect to a matter mentioned therein. It confers no less power than Arts. 245-246 do, read with List I and List III.The impugned rules prescribed requirements as to residence within the whole of Hyderabad State and therefore are saved and continued in force by Art. 35 (b)If we were to apply the suggested principle of interpretation we would be rendering Art. 35 (b) nugatory, for ordinarily rules like the impugned rules would form part of Civil Service Regulations or laws dealing with appointments especially in the old Indian States. We must give effect to the intention clearly expressed in Art. 35 (b). The Judges of the Full Bench also came to the same conclusion and in agreement with them we hold that the impugned rules were continued in force by Art. 35 (b) of the ConstitutionThis expression equally applies to Art. 35 (a) and Art. 35 (b). In Article 35 (b) the effect of these words is not only to continue the impugned rules but to continue them until Parliament repeals, amends or alters them. It seems to us that the effect of reorganisation of States made under Arts. 3 and 4 of making Telangana a part of a new State has to be ignored under Art. 35 (b); otherwise a fundamental right conferred on persons under Art. 35 (b)- it must be remembered that Art. 35 (b) is a part of the Chapter on Fundamental Rights - would be liable to be taken away by the re-organisation of States. It cannot be denied that the purpose of reorganisation of States is not to take away fundamental rightswe are of the view that the impugned rules continued in force even after the constitution of the State of Andhra Pradesh under the Re-organisation of States Act, 1956The object, it is clear from this recital, is two-fold; one, to make provisions in pursuance of Art. 16 (3) and, two, to repeal the existing laws relevant thereto. The Act did not come into force immediately because it provided in S. 1 (2) that it shall come into force on such date as the Central Government may by notification in the official gazette appointIt is quite clear that Parliament had made up its mind that rules requiring residence as qualification for appointment to services for offices shall continue because the Public Employment Act enables the Central Government to make such rules. Not only that, but S. 5 assumes that rules will be made and it is on this assumption that S. 5 originally proceeded to give a life of five years to them from the commencement of the Act. It is impossible to read Section 5 and S. 3 together without coming to the conclusion that it was the intention of Parliament that Central Government would make the necessary rules. The Central Government also understood the intention to be the same because it acted under Section 1 (2) and S. 3 simultaneously. In other words, the date of commencement of the Act was fixed as March 21, 1959, and the rules also came into force on the same dateWe are unable to accede to this.It is only a matter of drafting and if the Telangana region had been dealt with separately in a separate Act we would have had no hesitation in holding that S. 2 would fall with S. 3. The fact that S. 2 deals with laws and rules in various States would not prevent us from separating the valid portion from the invalid portion.This Court specifically held that S. 3 was bad insofar as it dealt with the Telangana region. We hold that S. 2 is also bad insofar as it dealt with Telangana areaWe may mention that we are not concerned with the interpretation of the Mulki Rules and their applicability after the adaptation. No such question was answered by the Full Bench or was dealt with by the Division Bench. | 1 | 4,797 | 1,031 | ### 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:
law then in force in any State or Union Territory by virtue of clause (b) of Article 35 of the Constitution prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, that State or Union territory, any requirement as to residence therein prior to such employment or appointment shall cease to have effect and is hereby repealed." 16. There is no doubt that the impugned Mulki Rules fall within S. 2 and if there was nothing more they would stand repealed. But the second purpose of Parliament was achieved by enacting S. 3 which provided :"3. (1) The Central Government may, by notification in the official Gazette, make rules prescribing, in regard to appointments to - (a) any subordinate service or post under the State Government of Andhra Pradesh, or (b) any subordinate service or post under the control of the Administrator of Himachal Pradesh, Manipur or Tripura, or (c) any service or post under a local or other authority (other than a cantonment board) within the Telangana area of Andhra Pradesh or within the Union territory of Himachal Pradesh, Manipur or Tripura, any requirement as to residence within the Telengana area or the said Union Territory, as the case may be, prior to such appointment." 17. Section 4 provided for Parliamentary scrutiny of rules and S. 5 dealt with duration of rules. Section 5, as originally enacted, provided :"Section 3 and all rules made thereunder shall cease to have effect on the expiration of five years from the commencement of this Act, but such cesser shall not affect the validity of any appointment previously made in pursuance of the said rules." The words "five years" had subsequently been substituted by the words "fifteen years." 18. In pursuance of this Act certain rules, called the Andhra Pradesh Public Employment (Requirement as to Residence) Rules, 1959 were made. The Act and the Rules were challenged before this Court in (1970) 1 SCR 115 = AIR 1970 SC 422 . This Court held that S. 3 of the Public Employment (Requirement as to Residence) Act, 1957, insofar as it related to Telangana - we say nothing about the order parts - and R. 3 of the Rules made under this Act were ultra vires the Constitution. No opinion was expressed in this judgment on the point whether the Mulki Rules existing in the former Hyderabad State should continue to operate by virtue of Art. 35 (b). 19. It is urged before us that if S. 3 is void, so is S. 2 because Section 2 and Section 3 of the said Act from one scheme; in other words, it was not the intention of Parliament to simply repeal the existing laws in Telangana dealing with residential requirements for the purposes of appointment, the intention being to substitute other rules in place of the earlier rules.20. It is quite clear that Parliament had made up its mind that rules requiring residence as qualification for appointment to services for offices shall continue because the Public Employment Act enables the Central Government to make such rules. Not only that, but S. 5 assumes that rules will be made and it is on this assumption that S. 5 originally proceeded to give a life of five years to them from the commencement of the Act. It is impossible to read Section 5 and S. 3 together without coming to the conclusion that it was the intention of Parliament that Central Government would make the necessary rules. The Central Government also understood the intention to be the same because it acted under Section 1 (2) and S. 3 simultaneously. In other words, the date of commencement of the Act was fixed as March 21, 1959, and the rules also came into force on the same date. 21. A number of authorities of this Court and other authorities have been cited before us in order to make us determine whether S. 2 is not severable from S. 3 of the Public Employment Act. It is not necessary to refer to them here because the principles are well-known and have been re-iterated in a number of cases of this Court, including R. M. D. Chamarbaugwala v. Union of India, 1957 SCR 930 = AIR 1957 SC 628 . It seems to us that principles 1 and 3, mentioned in this judgment at p. 950 apply to the facts of this case, In our view it is clear that Parliament would not have enacted S. 2 without S. 3 as far as Telangana is concerned. The whole history of the legislation, its object title and the Preamble to it, point to that conclusion. Further, the Constitution (Seventh Amendment) Act, 1956, substituting new Article 371 for the old also shows that it was intended to give special consideration to the Telangana region. 22. We may mention that the earlier Full Bench came to the same conclusion in AIR 1971 Andh Pra 118 (FB). 23. It was urged before us that S. 2 insofar as it dealt with Telangana region cannot be given an independent existence. We are unable to accede to this.It is only a matter of drafting and if the Telangana region had been dealt with separately in a separate Act we would have had no hesitation in holding that S. 2 would fall with S. 3. The fact that S. 2 deals with laws and rules in various States would not prevent us from separating the valid portion from the invalid portion.This Court specifically held that S. 3 was bad insofar as it dealt with the Telangana region. We hold that S. 2 is also bad insofar as it dealt with Telangana area. 24. We may mention that we are not concerned with the interpretation of the Mulki Rules and their applicability after the adaptation. No such question was answered by the Full Bench or was dealt with by the Division Bench. 25.
### Response:
1
### Explanation:
On this question the Judges of the Full Bench are agreed that the answer must be in the affirmative. The words "laws in force in the territory of India" in Art. 35 (b) also occur in Art. 372, which continue in force existing laws which existed not only in the Provinces of British India but in all Indian States.It would be remarkable if it were otherwise. In the context of Art. 35 (b) and Art. 372 what has to be seen is not whether the State of Hyderabad was part of the territory of India before the commencement of the Constitution but whether its territory is included in India after its commencement. The same test applies to the old provinces or part of Provinces of British India.This Courts decision in Janardan Reddy v. The State, (1950) SCR 940 = (AIR 1951 SC 124 ) on the construction of Article 136 of the Constitution proceeded on the basis that to Art. 136 "the normal mode of interpreting a legislation as prospective" should be applied. We are not concerned with any such consideration while interpreting Art. 35 (b) of the ConstitutionThis Court interpreted Art. 16 (3) in (1970) 1 SCR 115 = (AIR 1970 SC 422 ) to mean that it speaks of a whole State as the venue for residential qualifications. It cannot be said that the impugned Mulki Rules could not be provided for by Parliament under Art. 16 (3). They are with respect to the matter referred to in Art. 16 (3). Article 16 (3) confers legislative power on Parliament with respect to a matter mentioned therein. It confers no less power than Arts. 245-246 do, read with List I and List III.The impugned rules prescribed requirements as to residence within the whole of Hyderabad State and therefore are saved and continued in force by Art. 35 (b)If we were to apply the suggested principle of interpretation we would be rendering Art. 35 (b) nugatory, for ordinarily rules like the impugned rules would form part of Civil Service Regulations or laws dealing with appointments especially in the old Indian States. We must give effect to the intention clearly expressed in Art. 35 (b). The Judges of the Full Bench also came to the same conclusion and in agreement with them we hold that the impugned rules were continued in force by Art. 35 (b) of the ConstitutionThis expression equally applies to Art. 35 (a) and Art. 35 (b). In Article 35 (b) the effect of these words is not only to continue the impugned rules but to continue them until Parliament repeals, amends or alters them. It seems to us that the effect of reorganisation of States made under Arts. 3 and 4 of making Telangana a part of a new State has to be ignored under Art. 35 (b); otherwise a fundamental right conferred on persons under Art. 35 (b)- it must be remembered that Art. 35 (b) is a part of the Chapter on Fundamental Rights - would be liable to be taken away by the re-organisation of States. It cannot be denied that the purpose of reorganisation of States is not to take away fundamental rightswe are of the view that the impugned rules continued in force even after the constitution of the State of Andhra Pradesh under the Re-organisation of States Act, 1956The object, it is clear from this recital, is two-fold; one, to make provisions in pursuance of Art. 16 (3) and, two, to repeal the existing laws relevant thereto. The Act did not come into force immediately because it provided in S. 1 (2) that it shall come into force on such date as the Central Government may by notification in the official gazette appointIt is quite clear that Parliament had made up its mind that rules requiring residence as qualification for appointment to services for offices shall continue because the Public Employment Act enables the Central Government to make such rules. Not only that, but S. 5 assumes that rules will be made and it is on this assumption that S. 5 originally proceeded to give a life of five years to them from the commencement of the Act. It is impossible to read Section 5 and S. 3 together without coming to the conclusion that it was the intention of Parliament that Central Government would make the necessary rules. The Central Government also understood the intention to be the same because it acted under Section 1 (2) and S. 3 simultaneously. In other words, the date of commencement of the Act was fixed as March 21, 1959, and the rules also came into force on the same dateWe are unable to accede to this.It is only a matter of drafting and if the Telangana region had been dealt with separately in a separate Act we would have had no hesitation in holding that S. 2 would fall with S. 3. The fact that S. 2 deals with laws and rules in various States would not prevent us from separating the valid portion from the invalid portion.This Court specifically held that S. 3 was bad insofar as it dealt with the Telangana region. We hold that S. 2 is also bad insofar as it dealt with Telangana areaWe may mention that we are not concerned with the interpretation of the Mulki Rules and their applicability after the adaptation. No such question was answered by the Full Bench or was dealt with by the Division Bench.
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NEKKANTI RAMA LAKSHMI Vs. STATE OF KARNATAKA | granted lands. It provided that for an application to be made by a interested person to the Assistant Commissioner for restoration of such land. 2 Section 5. Resumption and restitution of granted lands. - (1) where, on application by any interested person or on information given in writing by any person or suo moto, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of section 4, he may.- (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard; (b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free form all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land. [(1A) After an enquiry referred to in sub-section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.] (2) [Subject to the order of the Deputy Commissioner under Section 5-A, any order passed] under [sub-section (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act. (3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed until the contrary is proved, that such person has acquired the land by a transfer which is null and void under provisions of sub-section (1) of Section 4. It also provided for exercise of suo motu power. 5. Rajappa, son of Kriyappa (rr.2 herein) made an application for restoration of such land to himself by an application dated 24.03.2004, i.e. approximately after 25 years of the Act came into force. 6. As stated earlier, the Assistant Commissioner, Davanagere rejected that application. The appellate authority allowed the application and the High Court upheld the order of the appellate authority. This appeal is preferred by the Second purchaser of the said land. 7. Shri R.S. Hedge appearing for the appellant urged several grounds. It is contended by Shri Hegde that proceedings are void for non-joinder of the first purchaser of the land. It is further contended that the non alienation period, i.e., period for which Kriyappa could not have transferred the land was not 15 years but was 10 years under the Rules of the land and, therefore, transfer was legal having been made after 10 years. However, the applicant had not produced the original grant, and, therefore, it was not possible for the purpose to come to a conclusion that the transfer was in breach of the non alienation period. We, however, find that one of the points raised on behalf of the appellant deserves acceptance. That point is that the application for restoration of the land was made by the heir of Kriyappa after unreasonably long period, i.e. 25 years from the Act came into force. Section 4 of the Act itself has a ubiquitous effect in it, annulling the transfer of granted land made either before or after the commencement of the Act. as null and void. The Act does not specify how much before the commencement of the Act. Thus on a plain and critical reading of the Act, it seems that it covers proceedings made in time before the Act was enacted. However, we are not called upon to deal with the reasonableness of this provision and we do not propose to say anything on this. The validity of the Act has been upheld by a judgment of this Court in Machegowda and Ors. v. State of Karnataka & Ors., 1984(3) SCC 301. 8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa v. Dy. Commissioner & Ors. (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. | 1[ds]We, however, find that one of the points raised on behalf of the appellant deserves acceptance. That point is that the application for restoration of the land was made by the heir of Kriyappa after unreasonably long period, i.e. 25 years from the Act came into force. Section 4 of the Act itself has a ubiquitous effect in it, annulling the transfer of granted land made either before or after the commencement of the Act. as null and void. The Act does not specify how much before the commencement of the Act. Thus on a plain and critical reading of the Act, it seems that it covers proceedings made in time before the Act was enacted. However, we are not called upon to deal with the reasonableness of this provision and we do not propose to say anything on this. The validity of the Act has been upheld by a judgment of this Court in Machegowda and Ors. v. State of Karnataka & Ors., 1984(3) SCC 301.This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa v. Dy. Commissioner & Ors. (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. | 1 | 1,546 | 463 | ### Instruction:
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granted lands. It provided that for an application to be made by a interested person to the Assistant Commissioner for restoration of such land. 2 Section 5. Resumption and restitution of granted lands. - (1) where, on application by any interested person or on information given in writing by any person or suo moto, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of section 4, he may.- (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard; (b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free form all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land. [(1A) After an enquiry referred to in sub-section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.] (2) [Subject to the order of the Deputy Commissioner under Section 5-A, any order passed] under [sub-section (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act. (3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed until the contrary is proved, that such person has acquired the land by a transfer which is null and void under provisions of sub-section (1) of Section 4. It also provided for exercise of suo motu power. 5. Rajappa, son of Kriyappa (rr.2 herein) made an application for restoration of such land to himself by an application dated 24.03.2004, i.e. approximately after 25 years of the Act came into force. 6. As stated earlier, the Assistant Commissioner, Davanagere rejected that application. The appellate authority allowed the application and the High Court upheld the order of the appellate authority. This appeal is preferred by the Second purchaser of the said land. 7. Shri R.S. Hedge appearing for the appellant urged several grounds. It is contended by Shri Hegde that proceedings are void for non-joinder of the first purchaser of the land. It is further contended that the non alienation period, i.e., period for which Kriyappa could not have transferred the land was not 15 years but was 10 years under the Rules of the land and, therefore, transfer was legal having been made after 10 years. However, the applicant had not produced the original grant, and, therefore, it was not possible for the purpose to come to a conclusion that the transfer was in breach of the non alienation period. We, however, find that one of the points raised on behalf of the appellant deserves acceptance. That point is that the application for restoration of the land was made by the heir of Kriyappa after unreasonably long period, i.e. 25 years from the Act came into force. Section 4 of the Act itself has a ubiquitous effect in it, annulling the transfer of granted land made either before or after the commencement of the Act. as null and void. The Act does not specify how much before the commencement of the Act. Thus on a plain and critical reading of the Act, it seems that it covers proceedings made in time before the Act was enacted. However, we are not called upon to deal with the reasonableness of this provision and we do not propose to say anything on this. The validity of the Act has been upheld by a judgment of this Court in Machegowda and Ors. v. State of Karnataka & Ors., 1984(3) SCC 301. 8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa v. Dy. Commissioner & Ors. (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground.
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We, however, find that one of the points raised on behalf of the appellant deserves acceptance. That point is that the application for restoration of the land was made by the heir of Kriyappa after unreasonably long period, i.e. 25 years from the Act came into force. Section 4 of the Act itself has a ubiquitous effect in it, annulling the transfer of granted land made either before or after the commencement of the Act. as null and void. The Act does not specify how much before the commencement of the Act. Thus on a plain and critical reading of the Act, it seems that it covers proceedings made in time before the Act was enacted. However, we are not called upon to deal with the reasonableness of this provision and we do not propose to say anything on this. The validity of the Act has been upheld by a judgment of this Court in Machegowda and Ors. v. State of Karnataka & Ors., 1984(3) SCC 301.This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa v. Dy. Commissioner & Ors. (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground.
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Girja Prasad Vs. State Of M.P | to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence.28. In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 , dealing with a similar situation, a three Judge Bench speaking through V.R. Krishna Iyer, J. stated: ?Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro? the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated persons and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent?." In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.? (emphasis supplied)29. Recently, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : JT (2007) 3 SC 316 , after considering the relevant provisions of the old Code (Code of Criminal Procedure, 1898) and the present Code (Code of Criminal Procedure, 1973) and referring to decisions of the Privy Council and of this Court, one of us (C.K. Thakker, J.) laid down certain general principles regarding powers of Appellate Court in dealing with appeal against an order of acquittal. In para 42 it was observed: ?42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;(3) Various expressions, such as, ?substantial and compelling reasons?, ?good and sufficient grounds?, ?very strong circumstances?, ?distorted conclusions?, ?glaring mistakes?, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ?flourishes of language? to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court?. 30. In the case on hand, as observed earlier, both the Courts below recorded a positive finding that the accused accepted an amount of Rs.200/-. In our opinion, therefore, Section 4 of the Act got attracted and presumption came into play against the accused. There was no rebuttal by the accused by leading any evidence whatsoever. The defence was of total denial and of false implication. Hence, the doctrine of ?preponderance of probability? also had no application. The Trial Court was, therefore, wrong in not invoking Section 4 and raising presumption. The Trial Court was also wrong in discarding the evidence of PW 1-Anup Kumar-Complainant and PW 10-S.K. Tiwari-Inspector observing that they were ?interested? witnesses and their testimony could not be relied upon. If it is so, in our judgment, the High Court was justified in setting aside the order of acquittal and in convicting the accused for the offences with which he was charged.31. We appreciate the anxiety of the learned counsel for the appellant that if the conviction of the deceased is upheld by this Court, the deceased may not be held entitled to pensionary and other benefits. We are, however, helpless. Once we are satisfied that the acquittal recorded by the Trial Court was not in consonance with law and the High Court was right in setting aside it and in convicting the accused, it is a mere ?consequence? which cannot be helped. The argument of ?sympathy?, therefore, does not impress us and cannot carry the case of the appellant-applicant herein further. | 0[ds]16. Having anxiously considered the rival contentions of the parties and having gone through the record of the case meticulously, we are of the view that the High Court was wholly justified in setting aside acquittal of the accused and in recording an order of conviction against him. From what is stated above, it is clear that the Trial Court also believed the case of the prosecution that the amount of Rs.200/- was paid by PW1-Anup Kumar-Complainant to accused Girja Prasad which is clear form the following finding recorded in para 46 of thefrom the above evidence from Anup Kumar, it becomes clear that Anup Kumar entrusted Rs.200/- to the accused so that accused Girja Prasad may give it to Shri Rajoria?.17. The Court then proceeded to state;?Clearly the acceptance of Rs.200/- currency notes by accused Girja Prasad, he was only innocent scarifying goat in the hands of Mr. Rajoria?.18. The Trial Court also observed:?It goes without saying that accused Girja Prasad worked as innocent carrier to Rajoria misusing his post while performing his official duty or he adopted illegal means for that?.To us, the learned advocate for the respondent-State is right in submitting that once it is proved that the amount has been received by the accused, presumption under Section 4 of the Act would get attracted. Section 4 of the Prevention of Corruption Act, 1947 (since repealed) provided for presumption where public servant accepted gratification other than legal remuneration. Sub-section (1) of the said section was relevant and read aswhere public servant accepts gratification other than legal remuneration.- (1) Where in any trial of an offence punishable under Section 161 or Section 165an Penal Code(45 of 1860) or of an offence referred to in clause (a) or clause (b) of sub-section (1) of Section 5 of this Act punishable under sub-section (2) thereof, it is provided that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.The Trial Court observed that the presumption is not ?absolute?, but is rebuttable and the accused can prove otherwise for getting rid of such presumption. This is true. But, in our view, the Trial Court lost sight of the fact that the case of the accused was of ?total denial? and of ?false involvement?. The presumption, in the circumstances, could not be said to have been rebutted by the accused.21. In our opinion, once the finding was recorded by the Trial Court that the accused had accepted the amount, it was wholly immaterial whether the said acceptance of amount was for him or for someone else. Even if an accused accepts the amount for ?someone else?, he commits an offence. In this connection, we may refer to both the provisions i.e. Section 161, IPC (before it was repealed by Sectionof the Prevention of Corruption Act,1988) and Section 5(1)(d)of the Prevention of Corruption Act,1947 (before the said Act was repealed by the Prevention of Corruption Act, 1988).161. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government company referred to in section 21, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (emphasis supplied)5(1). Criminal misconduct.-(1) A public servant is said to commit the offence of criminal misconduct---(a) to (c) -.(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. (emphasis supplied)22. It was, therefore, of no consequence whether the accused had accepted the amount for and on behalf of Ramnarain Rajoria-PW 4. Once it is proved that he accepted the amount of Rs.200/-, he cannot escape from criminal liability on a specious ground that he was made ?scapegoat? or was merely ?innocent carrier?. It was also immaterial whether the accused was or was not in a position to oblige the complainant by preventing or delaying his suspension. The case of the prosecution was that the complainant was asked to pay an amount of Rs.500/- by the accused and the said amount had been accepted by him in two installments, Rs.300/- at Dindori and Rs.200/- at Jabalpur where trap was successful.23. We are equally unable to uphold the contention of the learned counsel for the appellant that the trial Court was right in not relying upon PW 1-Anupr of Special Police Establishment. The trial Court, it may be stated, discarded the evidence of these two witnesses by laying down the following proposition ofgoes without saying that Anup Kumar and Shri S.re concerned only with the success of the trap and thus both these persons are interested witnesses. PW 10, Shri Tiwari is Inspector in Lokayukt Office therefore he is highly interested witness?.In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.25. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in the leading case of Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 , Venkatarama Ayyar, J.presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration?.(emphasis supplied)26. In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was)the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case?.Regarding setting aside acquittal by the High Court, the learned counsel for the appellant relied upon Kunju Muhammed v. State of Kerala, (2004) 9 SCC 193 : JT (2003) 7 SC 114 , Kashi Ram v. State of M.P., (2002) 1 SCC 71 : JT (2001) 8 SC 650 and Meena v. State of Maharashtra, (2000) 5 SCC 21 : JT 2000 (4) SC 521 . In our opinion, the law is well settled. An appeal against acquittal is also an appeal under the Code and an Appellate Court has every power to reappreciate, review and reconsider the evidence as a whole before it. It is, no doubt, true that there is presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the Trial Court. But that is not the end of the matter. It is for the Appellate Court to keep in view the relevant principles of law, to reappreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence.28. In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 , dealing with a similar situation, a three Judge Bench speaking through V.R. Krishna Iyer, J.at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro? the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated persons and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent?." In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.?(emphasis supplied)29. Recently, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : JT (2007) 3 SC 316 , after considering the relevant provisions of the old Code (Code of Criminal Procedure, 1898) and the present Code (Code of Criminal Procedure, 1973) and referring to decisions of the Privy Council and of this Court, one of us (C.K. Thakker, J.) laid down certain general principles regarding powers of Appellate Court in dealing with appeal against an order of acquittal. In para 42 it wasFrom the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;(3) Various expressions, such as, ?substantial and compelling reasons?, ?good and sufficient grounds?, ?very strong circumstances?, ?distorted conclusions?, ?glaring mistakes?, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ?flourishes of language? to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court?.In the case on hand, as observed earlier, both the Courts below recorded a positive finding that the accused accepted an amount of Rs.200/-. In our opinion, therefore, Section 4 of the Act got attracted and presumption came into play against the accused. There was no rebuttal by the accused by leading any evidence whatsoever. The defence was of total denial and of false implication. Hence, the doctrine of ?preponderance of probability? also had no application. The Trial Court was, therefore, wrong in not invoking Section 4 and raising presumption. The Trial Court was also wrong in discarding theevidence of PWr observing that they were ?interested? witnesses and their testimony could not be relied upon. If it is so, in our judgment, the High Court was justified in setting aside the order of acquittal and in convicting the accused for the offences with which he was charged.31. We appreciate the anxiety of the learned counsel for the appellant that if the conviction of the deceased is upheld by this Court, the deceased may not be held entitled to pensionary and other benefits. We are, however, helpless. Once we are satisfied that the acquittal recorded by the Trial Court was not in consonance with law and the High Court was right in setting aside it and in convicting the accused, it is a mere ?consequence? which cannot be helped. The argument of ?sympathy?, therefore, does not impress us and cannot carry the case of the appellant-applicant herein further. | 0 | 5,218 | 2,906 | ### Instruction:
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to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence.28. In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 , dealing with a similar situation, a three Judge Bench speaking through V.R. Krishna Iyer, J. stated: ?Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro? the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated persons and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent?." In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.? (emphasis supplied)29. Recently, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : JT (2007) 3 SC 316 , after considering the relevant provisions of the old Code (Code of Criminal Procedure, 1898) and the present Code (Code of Criminal Procedure, 1973) and referring to decisions of the Privy Council and of this Court, one of us (C.K. Thakker, J.) laid down certain general principles regarding powers of Appellate Court in dealing with appeal against an order of acquittal. In para 42 it was observed: ?42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;(3) Various expressions, such as, ?substantial and compelling reasons?, ?good and sufficient grounds?, ?very strong circumstances?, ?distorted conclusions?, ?glaring mistakes?, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ?flourishes of language? to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court?. 30. In the case on hand, as observed earlier, both the Courts below recorded a positive finding that the accused accepted an amount of Rs.200/-. In our opinion, therefore, Section 4 of the Act got attracted and presumption came into play against the accused. There was no rebuttal by the accused by leading any evidence whatsoever. The defence was of total denial and of false implication. Hence, the doctrine of ?preponderance of probability? also had no application. The Trial Court was, therefore, wrong in not invoking Section 4 and raising presumption. The Trial Court was also wrong in discarding the evidence of PW 1-Anup Kumar-Complainant and PW 10-S.K. Tiwari-Inspector observing that they were ?interested? witnesses and their testimony could not be relied upon. If it is so, in our judgment, the High Court was justified in setting aside the order of acquittal and in convicting the accused for the offences with which he was charged.31. We appreciate the anxiety of the learned counsel for the appellant that if the conviction of the deceased is upheld by this Court, the deceased may not be held entitled to pensionary and other benefits. We are, however, helpless. Once we are satisfied that the acquittal recorded by the Trial Court was not in consonance with law and the High Court was right in setting aside it and in convicting the accused, it is a mere ?consequence? which cannot be helped. The argument of ?sympathy?, therefore, does not impress us and cannot carry the case of the appellant-applicant herein further.
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view the relevant principles of law, to reappreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence.28. In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 , dealing with a similar situation, a three Judge Bench speaking through V.R. Krishna Iyer, J.at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro? the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated persons and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent?." In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.?(emphasis supplied)29. Recently, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : JT (2007) 3 SC 316 , after considering the relevant provisions of the old Code (Code of Criminal Procedure, 1898) and the present Code (Code of Criminal Procedure, 1973) and referring to decisions of the Privy Council and of this Court, one of us (C.K. Thakker, J.) laid down certain general principles regarding powers of Appellate Court in dealing with appeal against an order of acquittal. In para 42 it wasFrom the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;(3) Various expressions, such as, ?substantial and compelling reasons?, ?good and sufficient grounds?, ?very strong circumstances?, ?distorted conclusions?, ?glaring mistakes?, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ?flourishes of language? to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court?.In the case on hand, as observed earlier, both the Courts below recorded a positive finding that the accused accepted an amount of Rs.200/-. In our opinion, therefore, Section 4 of the Act got attracted and presumption came into play against the accused. There was no rebuttal by the accused by leading any evidence whatsoever. The defence was of total denial and of false implication. Hence, the doctrine of ?preponderance of probability? also had no application. The Trial Court was, therefore, wrong in not invoking Section 4 and raising presumption. The Trial Court was also wrong in discarding theevidence of PWr observing that they were ?interested? witnesses and their testimony could not be relied upon. If it is so, in our judgment, the High Court was justified in setting aside the order of acquittal and in convicting the accused for the offences with which he was charged.31. We appreciate the anxiety of the learned counsel for the appellant that if the conviction of the deceased is upheld by this Court, the deceased may not be held entitled to pensionary and other benefits. We are, however, helpless. Once we are satisfied that the acquittal recorded by the Trial Court was not in consonance with law and the High Court was right in setting aside it and in convicting the accused, it is a mere ?consequence? which cannot be helped. The argument of ?sympathy?, therefore, does not impress us and cannot carry the case of the appellant-applicant herein further.
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Smriti Madan Kansagra Vs. Perry Kansagra | the High Court of Justice, Court of Appeal, Civil Division In re W (Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703. In the words of Thorpe L J., it was opined that : …One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field. … [47] Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit. [48] Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin. [49] In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the childs habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State. [50] The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character. [51] This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1 FLR 422, [1998] Fam Law 128. … [53] Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests. … [55] The governments failure to provide an express power to make mirror orders presented Singer J with the dilemma. In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1 FLR 435, [2000] Fam Law 240 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed: I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make. [56] Singer J prefaced his consideration of the submissions advanced with the following formulation: When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court. Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement. … [62] For the purposes of this appeal what is valuable is Singer Js recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal… (f) The commentary by Dicey, Morris and Collins on Conflict of Laws discusses the application of mirror orders in the context of private international law, and opines as : …The jurisdictional rules in this clause were given an extended meaning by Singer J. in Re P (A Child : Mirror Orders). A United States court was prepared to allow a child to travel to England on condition that a mirror order was made by the English court to ensure the childs return. The English courts have often adopted a similar practice. The child in the instant was neither habitually resident nor present in England. Nonetheless an order was made on the basis of common sense, comity, and public policy; it was expressly limited to the period during which the child was present in England….(The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19, paragraph 19-050, p. 1135.) (emphasis supplied) (g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr. 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by this Court in Jasmeet Kaur v. State (NCT of Delhi) and Anr. 2019 (17) SCALE 672. | 1[ds]11.1. It is a well-settled principle of law that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor child would remain the dominant consideration throughout.The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter-allegations made against each other with respect to their matrimonial life. In Rosy Jacob v. Jacob A Chakarmakkal (1973) 1 SCC 840. this Court held that :15…The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society.11.6. In the present case, the issue of custody of Aditya has to be based on an overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.12. Personal Interaction of the Courts with the minor :Section 17(3) of the Guardians and Wards Act, 1980 provides that if the minor is old enough to form an intelligent preference, such a choice would be of crucial importance in assisting the Court to arrive at a judicious decision on the issue of custody of the minor child.In the present case, Aditya is by now almost 11 years of age. It has been observed by the Family Court, the Child Counsellor, and the High Court in their personal interactions with the child at different stages of the proceedings, that he was a bright and articulate child, who was capable of unequivocally expressing his preferences and aspirations.We will now briefly touch upon the interactions of the Courts with Aditya, and the findings in this regard :(a) The Principal Judge, Family Court had a personal interaction with Aditya on 27.01.2016 when he was 6 years old. The Family Court in the Order dated 09.02.2016 notes that the child was attached to his father and grandparents, and observed that it would be in the interest and welfare of the child to have better interaction with his father for strengthening the bond, and for his holistic growth. The Court took the view that longer meeting hours would enable the father to spend quality time with the child, and that it would be in the interest of Aditya to have exclusive time with his father, in the absence of the mother.(b) During the mediation proceedings, the Child Counsellor interacted with the child on 08.07.2016 and 11.07.2016, based on which the Report dated 21.07.2016 was submitted to the High Court.The detailed report of the Counsellor gives a clear and valuable insight of the mental disposition and inclination of the child, which are most relevant for deciding the issue of custody and guardianship of the child.The relevant extract from the Report reads as under:…Aditya stays with his mother in Delhi while his father travels from Kenya once every month to visit him. While speaking of his parents, Aditya showed lot of closeness and affinity for his father which was surprising for a child who lives with his mother and spends very little time with the father only during visitation. Father seems to be the person he idolises. He also talked affectionately of his Dada in particular and Dadi (paternal grandparents). He talked about the house in Kenya which he might be knowing only through pictures seen during visitation as he was very young when Smriti returned to India alongwith him.Various questions were asked to know more about Adityas leanings towards his father and whether his expressions of love and affinity were genuine. Aditya is ready to go to Kenya. He also mentioned that if he cant go to Kenya now, he would do so when he grows up a bit. He talked about staying in England for further education which his Papa would provide for. His affection and bond with his father seemed genuine and not something that appears tutored or forced in some manner.Aditya seems comfortable with his mother and Nani (maternal grandmother) as well. In my second session with Aditya, he talked about his recent vacation in Kashmir alongwith his mother and how he went fishing there. When asked if he goes to Kenya and doesnt like it there or misses his mother what could be done, he answered that he would come back to Delhi. However, he is not uncomfortable at the idea of making a trip to Kenya. When asked about acquiring a toy game or a skill (playing darts) his talk was all father centric. According to Smriti, his scholastic progress is satisfactory at the moment. However, he may face difficulties in higher grades as it was observed that his general ability to spell and calculate seems somewhat weak.In matrimonial disputes, when custodial issues arise, young children generally show affinity and inclination towards the parent to whom their custody belongs and they live with. Aditya surprisingly shows more affection towards Perry and his demeanour sounds genuine.While adopting holistic approach to the childs growth, it may be considered to allot more time to Perry during further visitations and then extend it to overnight visitations….(c) The High Court had a personal interaction with the child, which is recorded in the Order dated 11.05.2016. The relevant extract from the said Order reads as:3. The son of the parties - Master Aditya Vikram Kansagra has been produced before us today. We have also had a long conversation with him and are deeply impressed with the maturity of this intelligent 6½ year old child who displays self confidence and a remarkable capacity of expressing himself with clarity. He exhibits no sign of confusion or nervousness at all.4. We also note that the child was comfortable in his interaction with his father and grandparents in court. The child has expressed happiness at his visitations with his father and grandparents. He unreservedly stated that he looks forward to the same. Master Aditya Vikram Kansagra is also able to identify other relatives in Kenya and enthusiastically refers to his experiences in that country. It is apparent that the child has bonded well with them.5. We must note that the child is at the same time deeply attached to his mother and Nani. His bearing and personality clearly bear the stamp of the fine upbringing being given to him by the appellant and her mother.6. As of now, since 9th February, 2016, the child is meeting his father and grandparents between 10:30 am and 05:00 pm on Saturday and Sunday in the second week of every month and for two hours on Friday in the second week of every month. The visitation is supervised as the court has appointed a Counsellor who has been directed to remain present throughout the visitation.7. We are informed that the child has two passports – one Kenyan and the other British. The Counsellor appears to have been appointed for two purposes - firstly to assuage the appellants fear that the child would be removed from India and secondly, to ensure his comfort. The second purpose appears to have been achieved.8. It cannot be disputed that for his complete development, the child needs nurturing from both parents and the love of all grandparents and relatives, if possible. Quality time with his parents and relatives is undeniably in his welfare. The constant presence of the counsellor – certainly an outsider – would certainly prevent the intimacies between a son, his father and grandparents i.e. close family. They have no quality private family time.(d) In the Supreme Court, we had called Perry, Smriti and Aditya for a personal interaction in Chambers on 17.03.2020. By this time, the child was over 10 years old. We found Aditya to be a bright and articulate child for his age, who was quite confident, and expressed with clarity about his inclinations and aspirations. We found the child to be emotionally balanced, who was deeply attached to his mother and maternal grandmother, with whom he lives, and at the same time exhibited a strong and deep bond with his father, which had evidently grown by the regular visitations of his father and grand-parents every month during the past 8 years. He expressed a strong interest for going to Kenya for his education, and for higher studies to the U.K. He expressed a keen interest to travel overseas, for which he had got no opportunity so far.(e) What emerges from all these interactions of Aditya with the Courts since 2016 when he was 6 years old, till the present when he is almost 11 years old, is a very positive attitude towards his father and paternal grandparents, even though he has not lived with them since the age of 2½ years when he was a toddler, and had come to India on a visit in March 2012, after which he did not go back.We place reliance on the Report of the Counsellor dated 21.07.2016, wherein it has been recorded that Aditya idolises his father Perry, and was ready to go to Kenya. The affection and bond of the child with his father was found to be genuine, and not something which was tutored or forced in any manner. The Counsellor recorded that Aditya surprisingly showed more affection towards Perry, and that his demeanour sounded genuine.As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will.In view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, we have arrived at the conclusion that it would be in his best interest to transfer the custody to his father. If his preferences are not given due regard to, it could have an adverse psychological impact on the child.13. Other considerations regarding the welfare of the minorHaving considered his preferences and aspirations, we will now consider other aspects with respect to the welfare of the child.(a) Aditya is a citizen of Kenya and U.K., even though he was born in India. Evidently, his parents took a conscious decision to obtain dual citizenship of Kenya and U.K. for him soon after his birth, when he ceased to be an Indian citizen, by virtue of the Explanation to Clause 2 of Rule 7 of the Registration of Foreigners Rules, 1982 and Section 9 of the Citizenship Act, 1955.Aditya travelled to India in 2012 on a Kenyan passport, with an OCI card attached to his passport. The Kenyan passport was cancelled in 2016 when a non-cognizable report was filed by Smriti regarding the loss of his passport. Subsequently, no steps were taken to obtain a fresh Kenyan passport to date.The factum of his nationality is a relevant aspect which has to be given due consideration while deciding the issue of custody of the child.In Re L (minors) (wardship: jurisdiction) [1974] 1 All ER 913, the Court of Appeal in England held that every matter having relevance to the welfare of the child should be taken into account and given such weight as the court deems fit, subject always to the welfare of the child being treated as paramount. Nationality is a factor which is an important aspect and must be taken into consideration, to determine where the welfare of the child would lie.(b) The educational opportunities which would be available to the child is an aspect of great significance while determining the best interest of the child.It was submitted on behalf of Perry that he has secured admission for Aditya in the Nairobi International School, which follows the IB curriculum. This would be more beneficial to him, given the fact that he is a dual citizen of Kenya and United Kingdom, and intends to pursue further education overseas. Being a citizen of United Kingdom, the child would get various opportunities as a citizen for admission to some of the best universities for further education, which would be in his best interest.(c) It is necessary that Aditya gets greater exposure by overseas travel. It is important for him to be exposed to different cultures, which would broaden his horizons, and facilitate his all-round development, and would help him in his future life.(d) The minor child Aditya is the heir apparent of a vast family business established by the family of Perry in Kenya and U.K. Since the businesses of the paternal family are primarily established in Kenya and the U.K., it would be necessary for Aditya to imbibe and assimilate the culture and traditions of the country where he would live as an adult.It would also be necessary for him to learn the local language of Kiswahili, and adapt himself to the living conditions and surroundings of the country. Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.(e) The minor child has been in the exclusive custody of his mother from birth till adolescence, which is the most crucial formative period in a persons life. Having completed almost 11 years in her exclusive custody, Aditya is now entitled to enjoy the protection and care of his father, for his holistic growth and development. However, Smritis continued participation in the growth and development of the child would be crucial. It must be recognized that Smriti has given her best to Aditya, and had him admitted in one of the best public schools in Delhi. The credit must also go to her for ensuring that the child is emotionally balanced, and has not tutored him against his father and paternal family.14. Objection regarding racismThe objection raised by Smriti regarding Perry being racist has not been established from the material on record. Perry and his family have been living in Kenya for over 85 years, and have established an extensive business in that country. There is no evidence brought on record to substantiate the allegation, except an oral submission made on behalf of Smriti. We do not feel that any importance can be given to this objection as a ground for refusing custody of the child to Perry.15. Objection regarding excessive drinkingWith respect to the allegation of alcoholism and excessive drinking made by Smriti, both the Family Court and the High Court have considered this objection at length and considered the evidence led by her in this regard. She had produced R.W.2, a practicing advocate from the chambers of her Counsel, who has deposed with respect to two incidents which allegedly took place at social events in Delhi. The evidence of R.W.2 was discarded as being unreliable, by both the Family Court and the High Court, since it was not corroborated by the evidence of Smriti and her mother, who were present on both these occasions. Furthermore, since R.W.2 and his wife were colleagues of her counsel, and she herself had been an associate in the same office, the Courts below were of the view that R.W.2 was an interested witness, and his evidence could not be relied upon, and had to be disregarded. We, therefore, reject this objection as being unsubstantiated.The certificate u/S. 65B produced by Smriti merely states that the content of the emails placed on record were the same as the content of the emails on her inbox. This certificate does not certify the source of the messages allegedly received on the Blackberry of Perry, which were transferred to her cellphone. In the absence of a certificate in accordance with S.65B, with respect to the source of the messages, we cannot accept the same as being genuine or authentic.This Court in a recent decision delivered by a bench of three Judges in Arjun Pandit Rao Khotkar v. Kailash Kushanrao Gorantyal 2020 SCC OnLine SC 571 held as under :59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly clarified in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor, (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.The Family Court rejected the allegations of marital infidelity based on the aforesaid emails.The High Court also holds that the emails were dated 05.05.2012 and 06.05.2012; on which dates, Smriti could not have had access to the Blackberry of Perry, since Perry had left India on 26.04.2012, which has been admitted by Smriti in her examination-in-chief.In view of the afore-mentioned facts, and the law laid down by this Court, we are unable to place reliance on the emails with respect to the allegations of marital infidelity. We, therefore, affirm the findings of the Family Court and High Court in this regard.We are of the view that the pendency of this case is not a valid ground to refuse custody of Aditya to his father. The criminal proceedings have arisen out of a natural disaster, and cannot be blown out of proportion to contend that he would be unfit for grant of custody of his son.18. For the aforesaid reasons, we are of the view that it would be in the best interest of Aditya, if his custody is handed over to his father Perry Kansagra. Once Aditya shifts to Kenya, he would be required to adapt to a new environment and study in a new educational system with a different curriculum. It would be in the best interest of the minor if he is able to go to Kenya at the earliest, so that he has some time to adapt to the new environment, before the new term starts in January 2021 in the Nairobi International School.This would, however, not imply that the mother would be kept out of the further growth, progress and company of her son. Smriti would be provided with temporary custody of the child for 50% of his annual vacations once a year, either in New Delhi or Kenya, wherever she likes. Smriti will also be provided access to Aditya through emails, cellphone and Skype during the weekends.19. Accordingly, we affirm the concurrent findings of the Courts below.(a) To safeguard the rights and interest of Smriti, we have considered it necessary to direct Perry to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.(b) Given the large number of cases arising from transnational parental abduction in inter-country marriages, the English courts have issued protective measures which take the form of undertakings, mirror orders, and safe habour orders, since there is no accepted international mechanism to achieve protective measures. Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures.(c) The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time, and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a mirror order from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child. In international family law, it is necessary that jurisdiction is exercised by only one court at a time. It would avoid a situation where conflicting orders may be passed by courts in two different jurisdictions on the same issue of custody of the minor child. These orders are passed keeping in mind the principle of comity of courts and public policy. The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State.The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.(d) The use of mirror orders to safeguard against child abduction was first analysed by Singer J. In re P (A Child: Mirror Orders) [2000] I FLR 435. The relevant extracts from that judgment are set out hereinbelow :…Though these are the facts as far as relevant of this particular case, they in turn reflect a relatively common situation made ever more common by the frequency of transnational and transcultural marriage and therefore inevitably an increased frequency of separation and breakdown in such marriages. It is nowadays by no means uncommon to find families upon separation separated by frontiers or by oceans.Contact to the non-residential parent in that parents home country, which often according to circumstance may be a country with which the child has prior connections, may be highly desirable. Yet for it to flourish it is necessary either for there to exist (or to develop if it is lacking) a confidence mutually between the parents, or for there to be a satisfactory judicial framework that lessens anxieties and may help to produce confidence where none exists.As it happens, for some years now, more often of course in unreported but not infrequently in reported cases, Family Division judges and judges of the Court of Appeal have advocated in appropriate cases that the parties before them, where contact or a move to live abroad is in contemplation, should provide precisely that form of cordon sanitaire in that foreign jurisdiction which in this case the parties would seek to create here for their child.Thus, Englands judges have invited parties to go off and get mirror orders or their non-common law equivalents in Chile, Canada, Denmark, the Sudan, Bangladesh, Egypt and even in Saudi Arabia. For instance, in Re HB (Abduction: Childrens Objections) [1998] 1 FLR 422, in a passage at 427H, Thorpe LJ said this:… it is important not only that the parents should combine to contain the children but also that the court systems in each jurisdiction should equally act in concert. Once the primary jurisdiction is established then mirror orders in the other and the effective use of the [Hague] Convention gives the opportunity for collaborative judicial function. The Danish judge and the English judge should in any future proceedings if possible be in direct communication.In Re E (Abduction: Non-Convention Country) [1999] 2 FLR 642, the return of a child to the Sudan, a non- Convention country, was approved by the Court of Appeal.In the leading judgment Thorpe LJ observed that:… the maintenance of mutual confidence within the member States is crucial to the practical operation of the [Hague] Convention. But the promotion of that confidence is probably most effectively achieved by the development of channels for judicial communication … The further development of international collaboration to combat child abduction may well depend upon the capacity of States to respect a variety of concepts of child welfare derived from differing cultures and traditions. A recognition of this reality must inform judicial policy with regard to the return of children abducted from non-member States.Where the Hague Convention does not apply, mirror orders find a more prominent place. Again, the situation will be that it will be the English court inviting the parties to seek an order in the country to which the child is to return to reflect, for instance, contact provisions that have been agreed to take place in England.The third category is those cases where application is made for leave to remove permanently from England for a new life abroad. Again, mirror orders are by no means untypical or unusual. Again, it is from the foreign court that the parties will hope to obtain such an order, and it is from the foreign court that English judges have from time to time required as a condition that such orders should be obtained.The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement.… I therefore have no difficulty at all in concluding that as a matter of common sense, of comity and indeed may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently in past years invited other courts to make.(e) The judgment of Singer J. was affirmed by a three judge bench comprising of Thorpe, Rimer and Stanley Burnton L JJ of the High Court of Justice, Court of Appeal, Civil Division In re W (Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703. In the words of Thorpe L J., it was opined that :…One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field.[47] Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit.[48] Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin.[49] In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the childs habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State.[50] The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character.[51] This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1 FLR 422, [1998] Fam Law 128.[53] Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests.[55] The governments failure to provide an express power to make mirror orders presented Singer J with the dilemma. In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1 FLR 435, [2000] Fam Law 240 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed:I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make.[56] Singer J prefaced his consideration of the submissions advanced with the following formulation:When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court.Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement.[62] For the purposes of this appeal what is valuable is Singer Js recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal…(f) The commentary by Dicey, Morris and Collins on Conflict of Laws discusses the application of mirror orders in the context of private international law, and opines as :…The jurisdictional rules in this clause were given an extended meaning by Singer J. in Re P (A Child : Mirror Orders). A United States court was prepared to allow a child to travel to England on condition that a mirror order was made by the English court to ensure the childs return. The English courts have often adopted a similar practice. The child in the instant was neither habitually resident nor present in England. Nonetheless an order was made on the basis of common sense, comity, and public policy; it was expressly limited to the period during which the child was present in England….(The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19, paragraph 19-050, p. 1135.)(g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr. 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by this Court in Jasmeet Kaur v. State (NCT of Delhi) and Anr. 2019 (17) SCALE 672. | 1 | 15,643 | 5,996 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the High Court of Justice, Court of Appeal, Civil Division In re W (Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703. In the words of Thorpe L J., it was opined that : …One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field. … [47] Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit. [48] Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin. [49] In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the childs habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State. [50] The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character. [51] This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1 FLR 422, [1998] Fam Law 128. … [53] Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests. … [55] The governments failure to provide an express power to make mirror orders presented Singer J with the dilemma. In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1 FLR 435, [2000] Fam Law 240 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed: I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make. [56] Singer J prefaced his consideration of the submissions advanced with the following formulation: When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court. Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement. … [62] For the purposes of this appeal what is valuable is Singer Js recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal… (f) The commentary by Dicey, Morris and Collins on Conflict of Laws discusses the application of mirror orders in the context of private international law, and opines as : …The jurisdictional rules in this clause were given an extended meaning by Singer J. in Re P (A Child : Mirror Orders). A United States court was prepared to allow a child to travel to England on condition that a mirror order was made by the English court to ensure the childs return. The English courts have often adopted a similar practice. The child in the instant was neither habitually resident nor present in England. Nonetheless an order was made on the basis of common sense, comity, and public policy; it was expressly limited to the period during which the child was present in England….(The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19, paragraph 19-050, p. 1135.) (emphasis supplied) (g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr. 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by this Court in Jasmeet Kaur v. State (NCT of Delhi) and Anr. 2019 (17) SCALE 672.
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### Explanation:
The judgment of Singer J. was affirmed by a three judge bench comprising of Thorpe, Rimer and Stanley Burnton L JJ of the High Court of Justice, Court of Appeal, Civil Division In re W (Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703. In the words of Thorpe L J., it was opined that :…One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field.[47] Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit.[48] Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin.[49] In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the childs habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State.[50] The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character.[51] This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1 FLR 422, [1998] Fam Law 128.[53] Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests.[55] The governments failure to provide an express power to make mirror orders presented Singer J with the dilemma. In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1 FLR 435, [2000] Fam Law 240 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed:I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make.[56] Singer J prefaced his consideration of the submissions advanced with the following formulation:When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court.Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The mirror order jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement.[62] For the purposes of this appeal what is valuable is Singer Js recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal…(f) The commentary by Dicey, Morris and Collins on Conflict of Laws discusses the application of mirror orders in the context of private international law, and opines as :…The jurisdictional rules in this clause were given an extended meaning by Singer J. in Re P (A Child : Mirror Orders). A United States court was prepared to allow a child to travel to England on condition that a mirror order was made by the English court to ensure the childs return. The English courts have often adopted a similar practice. The child in the instant was neither habitually resident nor present in England. Nonetheless an order was made on the basis of common sense, comity, and public policy; it was expressly limited to the period during which the child was present in England….(The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19, paragraph 19-050, p. 1135.)(g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr. 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by this Court in Jasmeet Kaur v. State (NCT of Delhi) and Anr. 2019 (17) SCALE 672.
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MOHAMMED MASROOR SHAIKH Vs. BHARAT BHUSHAN GUPTA & ORS | advocates notice dated 8th November 2019, the appellant and the respondent nos.2 to 5 were served a copy of the petition filed under Section 11 of the Arbitration Act by the respondent no.1. In the impugned Order, the learned Single Judge of the Bombay High Court has referred to the affidavit of service of notice filed on behalf of the respondent no.1. A judicial notice will have to be taken of a long standing and consistent practice followed on the Original Side of the Bombay High Court. The practice is that the advocates serve a notice of the proceedings filed in the Court even before it comes up before the Court. The Court acts upon such service effected by the advocate on proof thereof being produced in the form of an affidavit of service. Therefore, there is nothing illegal about the High Court acting upon the advocates notice admittedly served to the appellant. According to the case of the appellant, he was admitted to a hospital on 3rd May 2021. However, the advocates notice of the petition under Section 11 was served upon the appellant in November 2019. Therefore, the appellant could have always made arrangements to contest the said petition. Therefore, we reject the first submission made by the learned Senior Counsel appearing for the appellant regarding the failure to serve the notice of the petition under Section 11. 9. While filing the present appeals on 9th June 2021, the appellant ought to have disclosed that on 8th May 2021, his advocate had appeared before the learned Arbitrator in the first preliminary meeting convened by the learned Arbitrator. The minutes of preliminary meeting recorded by the learned Arbitrator do not record that the appellant appeared in the meeting without prejudice to his right of challenging the order appointing the Arbitrator. In fact, Mr. Baid, the learned counsel who appeared for the appellant before the learned Arbitrator, by e-mail dated 29th May 2021 addressed to the learned Arbitrator, sought his permission to withdraw his appearance. In the said e--mail, the advocate stated that he was appointed on the instructions of the present appellant. Moreover, the order dated 25th May 2021 passed by the learned Arbitrator by which objections under Section 16 were overruled shows that the same advocate appeared for the appellant and supported the objections raised by the respondent no.3. As the objection was rejected by the learned Arbitrator, in view of sub-section (6) of Section 16, on 21st December 2021, the appellant has filed a petition under Section 34 of the Arbitration Act, which is pending before the Bombay High Court for challenging the said Order. 10. The learned counsel appearing for the respondent no.1 has relied upon what has been held in paragraphs 95 and 98 of the decision of this Court in the case of Vidya (supra). The conclusions of this Court have been summarised in paragraph 154 of the said decision, which reads thus: 154. Discussion under the heading Who Decides arbitrability? can be crystallised as under: 154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable. 154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted. 154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competencecompetence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act. 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. (underlines supplied) 11. Thus, this Court held that while dealing with petition under Section 11, the Court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable. In such case, the issue of non--arbitrability is left open to be decided by the Arbitral Tribunal. On perusal of the impugned order, we find that the issues of non-arbitrability and the claim being time barred have not been concluded by the learned Single Judge of the Bombay High Court. In fact, in clause (vii) of the operative part of the impugned Order, the learned Single Judge has observed that the contentions of the parties have been kept open. The petitions filed by the appellant under Section 34 of the Arbitration Act, challenging the Order dated 25th May 2021 are pending before the High Court in which the appellant can raise all permissible contentions. | 0[ds]8. We have given careful consideration to the submissions. It is not in dispute that along with advocates notice dated 8th November 2019, the appellant and the respondent nos.2 to 5 were served a copy of the petition filed under Section 11 of the Arbitration Act by the respondent no.1. In the impugned Order, the learned Single Judge of the Bombay High Court has referred to the affidavit of service of notice filed on behalf of the respondent no.1. A judicial notice will have to be taken of a long standing and consistent practice followed on the Original Side of the Bombay High Court. The practice is that the advocates serve a notice of the proceedings filed in the Court even before it comes up before the Court. The Court acts upon such service effected by the advocate on proof thereof being produced in the form of an affidavit of service. Therefore, there is nothing illegal about the High Court acting upon the advocates notice admittedly served to the appellant. According to the case of the appellant, he was admitted to a hospital on 3rd May 2021. However, the advocates notice of the petition under Section 11 was served upon the appellant in November 2019. Therefore, the appellant could have always made arrangements to contest the said petition. Therefore, we reject the first submission made by the learned Senior Counsel appearing for the appellant regarding the failure to serve the notice of the petition under Section 11.9. While filing the present appeals on 9th June 2021, the appellant ought to have disclosed that on 8th May 2021, his advocate had appeared before the learned Arbitrator in the first preliminary meeting convened by the learned Arbitrator. The minutes of preliminary meeting recorded by the learned Arbitrator do not record that the appellant appeared in the meeting without prejudice to his right of challenging the order appointing the Arbitrator. In fact, Mr. Baid, the learned counsel who appeared for the appellant before the learned Arbitrator, by e-mail dated 29th May 2021 addressed to the learned Arbitrator, sought his permission to withdraw his appearance. In the said e--mail, the advocate stated that he was appointed on the instructions of the present appellant. Moreover, the order dated 25th May 2021 passed by the learned Arbitrator by which objections under Section 16 were overruled shows that the same advocate appeared for the appellant and supported the objections raised by the respondent no.3. As the objection was rejected by the learned Arbitrator, in view of sub-section (6) of Section 16, on 21st December 2021, the appellant has filed a petition under Section 34 of the Arbitration Act, which is pending before the Bombay High Court for challenging the said Order.paragraphs 95 and 98 of the decision of this Court in the case of Vidya (supra).The conclusions of this Court have been summarised in paragraph 154 of the said decision, which reads thus:154. Discussion under the heading Who Decides arbitrability? can be crystallised as under:154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable.154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competencecompetence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.11. Thus, this Court held that while dealing with petition under Section 11, the Court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable. In such case, the issue of non--arbitrability is left open to be decided by the Arbitral Tribunal. On perusal of the impugned order, we find that the issues of non-arbitrability and the claim being time barred have not been concluded by the learned Single Judge of the Bombay High Court. In fact, in clause (vii) of the operative part of the impugned Order, the learned Single Judge has observed that the contentions of the parties have been kept open. The petitions filed by the appellant under Section 34 of the Arbitration Act, challenging the Order dated 25th May 2021 are pending before the High Court in which the appellant can raise all permissible contentions. | 0 | 2,513 | 1,112 | ### 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:
advocates notice dated 8th November 2019, the appellant and the respondent nos.2 to 5 were served a copy of the petition filed under Section 11 of the Arbitration Act by the respondent no.1. In the impugned Order, the learned Single Judge of the Bombay High Court has referred to the affidavit of service of notice filed on behalf of the respondent no.1. A judicial notice will have to be taken of a long standing and consistent practice followed on the Original Side of the Bombay High Court. The practice is that the advocates serve a notice of the proceedings filed in the Court even before it comes up before the Court. The Court acts upon such service effected by the advocate on proof thereof being produced in the form of an affidavit of service. Therefore, there is nothing illegal about the High Court acting upon the advocates notice admittedly served to the appellant. According to the case of the appellant, he was admitted to a hospital on 3rd May 2021. However, the advocates notice of the petition under Section 11 was served upon the appellant in November 2019. Therefore, the appellant could have always made arrangements to contest the said petition. Therefore, we reject the first submission made by the learned Senior Counsel appearing for the appellant regarding the failure to serve the notice of the petition under Section 11. 9. While filing the present appeals on 9th June 2021, the appellant ought to have disclosed that on 8th May 2021, his advocate had appeared before the learned Arbitrator in the first preliminary meeting convened by the learned Arbitrator. The minutes of preliminary meeting recorded by the learned Arbitrator do not record that the appellant appeared in the meeting without prejudice to his right of challenging the order appointing the Arbitrator. In fact, Mr. Baid, the learned counsel who appeared for the appellant before the learned Arbitrator, by e-mail dated 29th May 2021 addressed to the learned Arbitrator, sought his permission to withdraw his appearance. In the said e--mail, the advocate stated that he was appointed on the instructions of the present appellant. Moreover, the order dated 25th May 2021 passed by the learned Arbitrator by which objections under Section 16 were overruled shows that the same advocate appeared for the appellant and supported the objections raised by the respondent no.3. As the objection was rejected by the learned Arbitrator, in view of sub-section (6) of Section 16, on 21st December 2021, the appellant has filed a petition under Section 34 of the Arbitration Act, which is pending before the Bombay High Court for challenging the said Order. 10. The learned counsel appearing for the respondent no.1 has relied upon what has been held in paragraphs 95 and 98 of the decision of this Court in the case of Vidya (supra). The conclusions of this Court have been summarised in paragraph 154 of the said decision, which reads thus: 154. Discussion under the heading Who Decides arbitrability? can be crystallised as under: 154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable. 154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted. 154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competencecompetence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act. 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. (underlines supplied) 11. Thus, this Court held that while dealing with petition under Section 11, the Court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable. In such case, the issue of non--arbitrability is left open to be decided by the Arbitral Tribunal. On perusal of the impugned order, we find that the issues of non-arbitrability and the claim being time barred have not been concluded by the learned Single Judge of the Bombay High Court. In fact, in clause (vii) of the operative part of the impugned Order, the learned Single Judge has observed that the contentions of the parties have been kept open. The petitions filed by the appellant under Section 34 of the Arbitration Act, challenging the Order dated 25th May 2021 are pending before the High Court in which the appellant can raise all permissible contentions.
### Response:
0
### Explanation:
8. We have given careful consideration to the submissions. It is not in dispute that along with advocates notice dated 8th November 2019, the appellant and the respondent nos.2 to 5 were served a copy of the petition filed under Section 11 of the Arbitration Act by the respondent no.1. In the impugned Order, the learned Single Judge of the Bombay High Court has referred to the affidavit of service of notice filed on behalf of the respondent no.1. A judicial notice will have to be taken of a long standing and consistent practice followed on the Original Side of the Bombay High Court. The practice is that the advocates serve a notice of the proceedings filed in the Court even before it comes up before the Court. The Court acts upon such service effected by the advocate on proof thereof being produced in the form of an affidavit of service. Therefore, there is nothing illegal about the High Court acting upon the advocates notice admittedly served to the appellant. According to the case of the appellant, he was admitted to a hospital on 3rd May 2021. However, the advocates notice of the petition under Section 11 was served upon the appellant in November 2019. Therefore, the appellant could have always made arrangements to contest the said petition. Therefore, we reject the first submission made by the learned Senior Counsel appearing for the appellant regarding the failure to serve the notice of the petition under Section 11.9. While filing the present appeals on 9th June 2021, the appellant ought to have disclosed that on 8th May 2021, his advocate had appeared before the learned Arbitrator in the first preliminary meeting convened by the learned Arbitrator. The minutes of preliminary meeting recorded by the learned Arbitrator do not record that the appellant appeared in the meeting without prejudice to his right of challenging the order appointing the Arbitrator. In fact, Mr. Baid, the learned counsel who appeared for the appellant before the learned Arbitrator, by e-mail dated 29th May 2021 addressed to the learned Arbitrator, sought his permission to withdraw his appearance. In the said e--mail, the advocate stated that he was appointed on the instructions of the present appellant. Moreover, the order dated 25th May 2021 passed by the learned Arbitrator by which objections under Section 16 were overruled shows that the same advocate appeared for the appellant and supported the objections raised by the respondent no.3. As the objection was rejected by the learned Arbitrator, in view of sub-section (6) of Section 16, on 21st December 2021, the appellant has filed a petition under Section 34 of the Arbitration Act, which is pending before the Bombay High Court for challenging the said Order.paragraphs 95 and 98 of the decision of this Court in the case of Vidya (supra).The conclusions of this Court have been summarised in paragraph 154 of the said decision, which reads thus:154. Discussion under the heading Who Decides arbitrability? can be crystallised as under:154.1. Ratio of the decision in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable.154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competencecompetence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.11. Thus, this Court held that while dealing with petition under Section 11, the Court by default would refer the matter when contentions relating to non--arbitrability are plainly arguable. In such case, the issue of non--arbitrability is left open to be decided by the Arbitral Tribunal. On perusal of the impugned order, we find that the issues of non-arbitrability and the claim being time barred have not been concluded by the learned Single Judge of the Bombay High Court. In fact, in clause (vii) of the operative part of the impugned Order, the learned Single Judge has observed that the contentions of the parties have been kept open. The petitions filed by the appellant under Section 34 of the Arbitration Act, challenging the Order dated 25th May 2021 are pending before the High Court in which the appellant can raise all permissible contentions.
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Ranjit Singh Vs. State Of Punjab | he was undergoing treatment.3. On 1st April, 2004, the appellant was once again admitted to a Nursing Home for corrective treatment of his face and he was discharged on 6th April, 2004, and a certificate to that effect was issued by the Nursing Home authorities. According to the appellant, he had spent a sum of Rs.50,000/- for the operation and other expenses in the Nursing Home.4. The appellant claims that he had undergone treatment in different hospitals and had incurred medical bills amounting to Rs.1,57,000/-. Since no payment was being made despite the medical bills having been submitted, the appellant filed Writ Petition No. 13943 of 2005, questioning the inaction of the respondents and prayed for a direction on the respondents to pay his dues together with interest at the rate of 18% from the due date till the date of actual payment. The Writ Petition was dismissed on 26th September, 2005, in the absence of appellants counsel with a direction to the respondents to pay to the appellant the settled amount of Rs.58,498/- and that the appellant would be entitled to claim the balance amount of his total claim before the competent authority. According to the appellant, out of the total claim of Rs.1,57,000/- he was paid a sum of Rs.58,498 as sanctioned by the respondent authorities. A Review Application filed in respect of the said order was also dismissed on 18th October, 2005. The present Appeals are directed against both the said orders dismissing the Writ Petition as also the Review Petition.5. It will be apparent from what has been stated hereinabove that the two questions to be considered in these appeals are whether the appellant would be entitled to the reimbursement of the total medical expenses incurred by him and also whether he would be entitled to his salary during the period of his hospitalization, even though no medical or earned leave or half-pay leave was available to him. 6. Appearing in support of the appeals, Mr. R.K. Talwar, learned advocate, submitted that since the appellant had met with a near fatal accident and had to be hospitalized while on duty and since he had been prevented from attending his duties on account thereof, the appellants case was different from other cases in that he did not willfully stayed-away from duties but was prevented by circumstances which were beyond his control from doing so. Mr. Talwar submitted that the Leave Rules as relied upon by respondent No.2 in sanctioning leave without pay for the period after 16th January, 2004, were applicable in ordinary cases where the employee stayed away from work voluntarily. It was urged that a distinction would have to be made between such cases and cases like the present case where the employee had no choice in the matter and was prevented from performing his duties on account of uncontrollable circumstances. Mr. Talwar also submitted that, in any event, the respondent No. 2 was bound to pay the medical expenses incurred by the appellant on account of the severe injuries suffered by him while on duty. Mr. Talwar submitted that the High Court had erred in allowing the respondent-company to deposit the sum of Rs.58,498/- only as there was no reason for the High Court to treat the settled amount differently from the total claim of the appellant. Mr. Talwar urged that the said order of the High Court has generated the controversy in the instant appeals and that this is a fit case for interference by this Court. 7. On the other hand, on behalf of the respondent, Mr. Anil Grover, learned advocate, submitted that the two questions indicated hereinbefore in paragraph 5 had been adequately answered in the impugned judgment and the order of the High Court did not warrant any interference. Mr. Grover submitted further that the total claim of the appellant had been considered and had been divided between dues, which were admittedly payable, and those which were disputed and the High Court had left it open to the appellant to seek his remedy as to the remaining balance of his claim before the competent authority.8. Mr. Grover submitted that no prejudice has been caused to the appellant by the order of the High Court impugned in these appeals and it had been left to the competent authority to decide the balance claim.9. Having considered the submissions made on behalf of the respective parties, it appears to us that the concerned respondents had dealt with the appellants claim in accordance with the Rules governing the service of the appellant and it was for the appellant to establish that he was entitled to reimbursement of the entire amount of the medical expenses which had been incurred by him from his own resources during his treatment in hospital. It goes without saying that if the full claim of the appellant was admissible there would have been no controversy in the matter. At the time of the settlement of the appellants claim, it is only to be expected that the Rules regarding entitlement of reimbursement on account of medical expenses had been considered while arriving at a final decision. Since a dispute has been raised as to the appellants to the entire medical expenses incurred by him during his treatment, the High Court has quite rightly remitted the matter to the competent authority, entrusted to deal with such matters, to arrive at a decision in the appellants case. It is difficult for the writ Court to take upon itself an investigative mantle in order to find out whether the appellants claim for reimbursement of the entire medical expenses incurred by him during treatment was valid or not. Such an enquiry can be undertaken by the authority, which has been entrusted with such work.10. We do not, therefore, see any error in the approach of the High Court in its writ jurisdiction. In our view, the decision of the appellants claim has been rightly left to the competent authority and does not warrant any change. | 0[ds]9. Having considered the submissions made on behalf of the respective parties, it appears to us that the concerned respondents had dealt with the appellants claim in accordance with the Rules governing the service of the appellant and it was for the appellant to establish that he was entitled to reimbursement of the entire amount of the medical expenses which had been incurred by him from his own resources during his treatment in hospital. It goes without saying that if the full claim of the appellant was admissible there would have been no controversy in the matter. At the time of the settlement of the appellants claim, it is only to be expected that the Rules regarding entitlement of reimbursement on account of medical expenses had been considered while arriving at a final decision. Since a dispute has been raised as to the appellants to the entire medical expenses incurred by him during his treatment, the High Court has quite rightly remitted the matter to the competent authority, entrusted to deal with such matters, to arrive at a decision in the appellants case. It is difficult for the writ Court to take upon itself an investigative mantle in order to find out whether the appellants claim for reimbursement of the entire medical expenses incurred by him during treatment was valid or not. Such an enquiry can be undertaken by the authority, which has been entrusted with such work.10. We do not, therefore, see any error in the approach of the High Court in its writ jurisdiction. In our view, the decision of the appellants claim has been rightly left to the competent authority and does not warrant any change. | 0 | 1,350 | 301 | ### 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:
he was undergoing treatment.3. On 1st April, 2004, the appellant was once again admitted to a Nursing Home for corrective treatment of his face and he was discharged on 6th April, 2004, and a certificate to that effect was issued by the Nursing Home authorities. According to the appellant, he had spent a sum of Rs.50,000/- for the operation and other expenses in the Nursing Home.4. The appellant claims that he had undergone treatment in different hospitals and had incurred medical bills amounting to Rs.1,57,000/-. Since no payment was being made despite the medical bills having been submitted, the appellant filed Writ Petition No. 13943 of 2005, questioning the inaction of the respondents and prayed for a direction on the respondents to pay his dues together with interest at the rate of 18% from the due date till the date of actual payment. The Writ Petition was dismissed on 26th September, 2005, in the absence of appellants counsel with a direction to the respondents to pay to the appellant the settled amount of Rs.58,498/- and that the appellant would be entitled to claim the balance amount of his total claim before the competent authority. According to the appellant, out of the total claim of Rs.1,57,000/- he was paid a sum of Rs.58,498 as sanctioned by the respondent authorities. A Review Application filed in respect of the said order was also dismissed on 18th October, 2005. The present Appeals are directed against both the said orders dismissing the Writ Petition as also the Review Petition.5. It will be apparent from what has been stated hereinabove that the two questions to be considered in these appeals are whether the appellant would be entitled to the reimbursement of the total medical expenses incurred by him and also whether he would be entitled to his salary during the period of his hospitalization, even though no medical or earned leave or half-pay leave was available to him. 6. Appearing in support of the appeals, Mr. R.K. Talwar, learned advocate, submitted that since the appellant had met with a near fatal accident and had to be hospitalized while on duty and since he had been prevented from attending his duties on account thereof, the appellants case was different from other cases in that he did not willfully stayed-away from duties but was prevented by circumstances which were beyond his control from doing so. Mr. Talwar submitted that the Leave Rules as relied upon by respondent No.2 in sanctioning leave without pay for the period after 16th January, 2004, were applicable in ordinary cases where the employee stayed away from work voluntarily. It was urged that a distinction would have to be made between such cases and cases like the present case where the employee had no choice in the matter and was prevented from performing his duties on account of uncontrollable circumstances. Mr. Talwar also submitted that, in any event, the respondent No. 2 was bound to pay the medical expenses incurred by the appellant on account of the severe injuries suffered by him while on duty. Mr. Talwar submitted that the High Court had erred in allowing the respondent-company to deposit the sum of Rs.58,498/- only as there was no reason for the High Court to treat the settled amount differently from the total claim of the appellant. Mr. Talwar urged that the said order of the High Court has generated the controversy in the instant appeals and that this is a fit case for interference by this Court. 7. On the other hand, on behalf of the respondent, Mr. Anil Grover, learned advocate, submitted that the two questions indicated hereinbefore in paragraph 5 had been adequately answered in the impugned judgment and the order of the High Court did not warrant any interference. Mr. Grover submitted further that the total claim of the appellant had been considered and had been divided between dues, which were admittedly payable, and those which were disputed and the High Court had left it open to the appellant to seek his remedy as to the remaining balance of his claim before the competent authority.8. Mr. Grover submitted that no prejudice has been caused to the appellant by the order of the High Court impugned in these appeals and it had been left to the competent authority to decide the balance claim.9. Having considered the submissions made on behalf of the respective parties, it appears to us that the concerned respondents had dealt with the appellants claim in accordance with the Rules governing the service of the appellant and it was for the appellant to establish that he was entitled to reimbursement of the entire amount of the medical expenses which had been incurred by him from his own resources during his treatment in hospital. It goes without saying that if the full claim of the appellant was admissible there would have been no controversy in the matter. At the time of the settlement of the appellants claim, it is only to be expected that the Rules regarding entitlement of reimbursement on account of medical expenses had been considered while arriving at a final decision. Since a dispute has been raised as to the appellants to the entire medical expenses incurred by him during his treatment, the High Court has quite rightly remitted the matter to the competent authority, entrusted to deal with such matters, to arrive at a decision in the appellants case. It is difficult for the writ Court to take upon itself an investigative mantle in order to find out whether the appellants claim for reimbursement of the entire medical expenses incurred by him during treatment was valid or not. Such an enquiry can be undertaken by the authority, which has been entrusted with such work.10. We do not, therefore, see any error in the approach of the High Court in its writ jurisdiction. In our view, the decision of the appellants claim has been rightly left to the competent authority and does not warrant any change.
### Response:
0
### Explanation:
9. Having considered the submissions made on behalf of the respective parties, it appears to us that the concerned respondents had dealt with the appellants claim in accordance with the Rules governing the service of the appellant and it was for the appellant to establish that he was entitled to reimbursement of the entire amount of the medical expenses which had been incurred by him from his own resources during his treatment in hospital. It goes without saying that if the full claim of the appellant was admissible there would have been no controversy in the matter. At the time of the settlement of the appellants claim, it is only to be expected that the Rules regarding entitlement of reimbursement on account of medical expenses had been considered while arriving at a final decision. Since a dispute has been raised as to the appellants to the entire medical expenses incurred by him during his treatment, the High Court has quite rightly remitted the matter to the competent authority, entrusted to deal with such matters, to arrive at a decision in the appellants case. It is difficult for the writ Court to take upon itself an investigative mantle in order to find out whether the appellants claim for reimbursement of the entire medical expenses incurred by him during treatment was valid or not. Such an enquiry can be undertaken by the authority, which has been entrusted with such work.10. We do not, therefore, see any error in the approach of the High Court in its writ jurisdiction. In our view, the decision of the appellants claim has been rightly left to the competent authority and does not warrant any change.
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Sathya Narayanan Vs. State Tr.Insp.Of Police | in the Ashram on 08.04.2000. It is also clear that though PW-7 has stated that he did not notice any injury on the body of the deceased, he admitted that the whole body was covered with a blue colour saree. He issued the Death Certificate mentioning that the deceased would have died due to heart attack without any examination, particularly, when the patient did not come to him at any point of time that too at the insistence of A-2, there is no need to give importance to the same. However, the evidence of PWs 6 and 7 prove the death of the deceased occurred on the morning of 08.04.2000 in the Ashram which is also one of the reliable circumstance which supports the case of the prosecution. It is also relevant to point out that the doctor, PW-7, admitted that when he visited the Ashram, he found a body lying beneath the sofa. It also creates a suspicion about the cause of her death. Sudha (PW-8) servant maid was told not to report for work in the afternoon: 29) Though Sudha (PW-8) turned hostile, in her deposition, it was stated that she was working in Sridevi Temple from January to March, 2000 and was distributing Saffron powder, turmeric and holy ashes to the devotees of the Temple. She further deposed that in April, 2000, when she went for work in the morning and was returning to her house for lunch at about 1.00 p.m., A-2 asked her not to come for work in the afternoon, therefore, on his instruction, she did not go for work in the afternoon. The fact that PW-8, who used to help the devotees all the time was asked not to attend in the afternoon in the month of April, 2000 is also one of the circumstance which supports the prosecution case. PWs 35 and 36 brother and sister of the deceased were not informed about the death of the deceased: 30) Though PWs 35 and 36, brother and sister of the deceased respectively, were residing in the same town were not informed about the death of Leelavathi by any person in the Ashram, particularly, A-1 and A-2. As a matter of fact, PWs 15 and 16 (vettiyan) who were attending the work of cremating the dead bodies, before commencement of their work, asked about the relatives of the deceased. A-2 informed them that the deceased is an orphan and had no relatives. As rightly observed by both the Courts, it would indicate that the appellants were not only responsible for committing murder but also screened the evidence. The statements of PWs 15 and 16, persons in charge of cremation of dead bodies, answers given by A-2 about their query relating to the relatives of the deceased and their reply that the deceased was an orphan are relevant circumstances which prove the case of the prosecution. Motive: 31) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust. 32) From the above materials, we noted the following circumstances relied on by the prosecution, accepted by the trial Court and the High Court : (i) The deceased was a member of the Trust.(ii) On 08.04.2000, the date of incident, there was some kind of commotion in the Ashram.(iii) The death occurred in the Ashram.(iv) In the complaint to police (Exh. P-1), it was stated that there was distress cry of the deceased.(v) PW-4 heard a commotion in the Ashram.(vi) A-2 approached PW-6 (Doctor) stating that a lady was lying unconscious.(vii) PW-7 (another Doctor) was requested to attend a lady lying unconscious.(viii) The accused failed to take the deceased to the hospital rather they preferred to treat her in the Ashram itself with the help of known doctors (PWs 6 & 7).(ix) PW-7 visited the Ashram and found a body lying beneath the Sofa.(x) The dead body was covered with a Saree and, therefore, PW-7 could not have seen any external injury.(xi) The accused have chosen not to conduct post mortem hence, the real cause of the death was completely suppressed.(xii) PW-8 was told not to report for work in the afternoon.(xiii) The accused have failed to inform any of the relatives of the deceased (PWs 35 & 36) though they lived in the same town.(xiv) A-2 visited PW-15’s place for arranging for the cremation.(xv) PWs 15 & 16 asked about the availability of relatives and the accused answered in the negative.(xvi) PWs 15 to 18 identified A-3 as being present at the time of cremation.(xvii) The time of cremation of the deceased was late in the evening, though the death occurred in the forenoon itself.(xviii)The accused had voluntarily lied to the persons who were cremating the body (vettiyan) that the deceased was an orphan and has no relatives.Conclusion: 33) The above analysis clearly shows that though there is no direct evidence about the cause of death, various circumstances projected by the prosecution complete the chain of link and established that, in all probability, the act must have been done by the appellants. All the circumstances have been clearly discussed by the trial Court and it rightly convicted and awarded appropriate sentence. The High Court, as an appellate Court, once again marshaled all the materials leading to the death of the deceased Leelavathi and confirmed the same. We fully concur with the said conclusion 34.. | 0[ds]31) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the saidthere is no direct evidence about the cause of death, various circumstances projected by the prosecution complete the chain of link and established that, in all probability, the act must have been done by the appellants. All the circumstances have been clearly discussed by the trial Court and it rightly convicted and awarded appropriate sentence. The High Court, as an appellate Court, once again marshaled all the materials leading to the death of the deceased Leelavathi and confirmed the same. We fully concur with the said | 0 | 6,845 | 228 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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in the Ashram on 08.04.2000. It is also clear that though PW-7 has stated that he did not notice any injury on the body of the deceased, he admitted that the whole body was covered with a blue colour saree. He issued the Death Certificate mentioning that the deceased would have died due to heart attack without any examination, particularly, when the patient did not come to him at any point of time that too at the insistence of A-2, there is no need to give importance to the same. However, the evidence of PWs 6 and 7 prove the death of the deceased occurred on the morning of 08.04.2000 in the Ashram which is also one of the reliable circumstance which supports the case of the prosecution. It is also relevant to point out that the doctor, PW-7, admitted that when he visited the Ashram, he found a body lying beneath the sofa. It also creates a suspicion about the cause of her death. Sudha (PW-8) servant maid was told not to report for work in the afternoon: 29) Though Sudha (PW-8) turned hostile, in her deposition, it was stated that she was working in Sridevi Temple from January to March, 2000 and was distributing Saffron powder, turmeric and holy ashes to the devotees of the Temple. She further deposed that in April, 2000, when she went for work in the morning and was returning to her house for lunch at about 1.00 p.m., A-2 asked her not to come for work in the afternoon, therefore, on his instruction, she did not go for work in the afternoon. The fact that PW-8, who used to help the devotees all the time was asked not to attend in the afternoon in the month of April, 2000 is also one of the circumstance which supports the prosecution case. PWs 35 and 36 brother and sister of the deceased were not informed about the death of the deceased: 30) Though PWs 35 and 36, brother and sister of the deceased respectively, were residing in the same town were not informed about the death of Leelavathi by any person in the Ashram, particularly, A-1 and A-2. As a matter of fact, PWs 15 and 16 (vettiyan) who were attending the work of cremating the dead bodies, before commencement of their work, asked about the relatives of the deceased. A-2 informed them that the deceased is an orphan and had no relatives. As rightly observed by both the Courts, it would indicate that the appellants were not only responsible for committing murder but also screened the evidence. The statements of PWs 15 and 16, persons in charge of cremation of dead bodies, answers given by A-2 about their query relating to the relatives of the deceased and their reply that the deceased was an orphan are relevant circumstances which prove the case of the prosecution. Motive: 31) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust. 32) From the above materials, we noted the following circumstances relied on by the prosecution, accepted by the trial Court and the High Court : (i) The deceased was a member of the Trust.(ii) On 08.04.2000, the date of incident, there was some kind of commotion in the Ashram.(iii) The death occurred in the Ashram.(iv) In the complaint to police (Exh. P-1), it was stated that there was distress cry of the deceased.(v) PW-4 heard a commotion in the Ashram.(vi) A-2 approached PW-6 (Doctor) stating that a lady was lying unconscious.(vii) PW-7 (another Doctor) was requested to attend a lady lying unconscious.(viii) The accused failed to take the deceased to the hospital rather they preferred to treat her in the Ashram itself with the help of known doctors (PWs 6 & 7).(ix) PW-7 visited the Ashram and found a body lying beneath the Sofa.(x) The dead body was covered with a Saree and, therefore, PW-7 could not have seen any external injury.(xi) The accused have chosen not to conduct post mortem hence, the real cause of the death was completely suppressed.(xii) PW-8 was told not to report for work in the afternoon.(xiii) The accused have failed to inform any of the relatives of the deceased (PWs 35 & 36) though they lived in the same town.(xiv) A-2 visited PW-15’s place for arranging for the cremation.(xv) PWs 15 & 16 asked about the availability of relatives and the accused answered in the negative.(xvi) PWs 15 to 18 identified A-3 as being present at the time of cremation.(xvii) The time of cremation of the deceased was late in the evening, though the death occurred in the forenoon itself.(xviii)The accused had voluntarily lied to the persons who were cremating the body (vettiyan) that the deceased was an orphan and has no relatives.Conclusion: 33) The above analysis clearly shows that though there is no direct evidence about the cause of death, various circumstances projected by the prosecution complete the chain of link and established that, in all probability, the act must have been done by the appellants. All the circumstances have been clearly discussed by the trial Court and it rightly convicted and awarded appropriate sentence. The High Court, as an appellate Court, once again marshaled all the materials leading to the death of the deceased Leelavathi and confirmed the same. We fully concur with the said conclusion 34..
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31) In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the saidthere is no direct evidence about the cause of death, various circumstances projected by the prosecution complete the chain of link and established that, in all probability, the act must have been done by the appellants. All the circumstances have been clearly discussed by the trial Court and it rightly convicted and awarded appropriate sentence. The High Court, as an appellate Court, once again marshaled all the materials leading to the death of the deceased Leelavathi and confirmed the same. We fully concur with the said
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M/S Ashoka Smokeless Coal Ind. P.Ltd. & Ors Vs. Union Of India | for exercise of public navigation rights. Initially however, the authorities by regular and consistent practice had accepted that such rights did not exist. The Court of Appeal said that although the expectations were legitimate, the action must fail. According to Peter Gibson L.J., the action failed as legitimate expectations could only be granted against lawful claims. Although May L.J., (like Menace L.J.) came to the same conclusion, they refused to accept legal incapacity as an automatic answer against legitimate expectation (amounting to convention right). They sought a kind of a balance where while allowing the Hedsor water to be open to rights of navigation, such use would not be actively encouraged by the authority. 173. It was held that, however, there was no need to restrict such balancing to cases where the right was one protected under the convention. It could be extended to all cases where the unlawful action was not adverse to public interest. Conclusion: 174. Coal being a scarce commodity, its utility for the purpose for which it is needed is essential. Although, technically, in view of the fact that no price is fixed for coal, there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. The very fact that despite best efforts of the Central Government, the coal companies failed to curb the menace of a section of people and to deal in coal excluding other general people therefrom or the linked consumers misusing their position of obtaining allotment of coal either wholly or in part, it is absolutely necessary that some mechanism should be found out for plugging the loopholes. The Union of India or the coal companies appear to have lost confidence in the State Governments. They had carried out joint inspection and in that process they must have arrived at a satisfaction about the genuineness of the claims of industrial units for which the linkage system was meant for. Before us most of the consumers, with a view to obtain supply of coal had filed documents to prove their genuineness. The said documents must be scrutinized by the authorities of the coal companies. In the event, they have any suspicion, inspection should be carried out by officers appointed by the Chairman-cum-Managing Director of the concerned company within whose jurisdiction the unit is situated. 175. With a view to evolve a viable policy, a committee should be constituted by the Union of India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. They would be entitled to lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefor. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with. 176. Hard coke plants are also coal mines within the meaning of Colliery Control Order, 2000. Hard coke is coal within the meaning of the provisions thereof. The Central Government, therefore, may think it fit to widen the definition of coal so as to include the smokeless coal in exercise of its power under the Essential Commodities Act. We may notice in ONGC (supra), this Court has held that slurries are a part of coal and is governed by the provisions of the Mines and Minerals (Regulation and Development) Act. Such being the wider definition of coal, we fail to see any reason as to why proper measure cannot be taken by the Union of India to have a complete control thereover. Any strict mechanism to find out the genuine consumers would go a long way in taking preventive measures and dealing with coal by unscrupulous persons for unauthorized purposes. Those who do so, should be dealt with stringently but the same would not mean that the genuine consumers should suffer for want of coal. 177. We, in the peculiar facts and circumstances of this case, are of the opinion that it may not be difficult to find out as to who the genuine consumers are. So far as owners of the hard coke ovens are concerned, they are members of the association and their identity can easily be verified. 178. However, discussions made hereinbefore should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contra distinguished from a mere profit motive. Any change in the policy decision for cogent and valid reasons is acceptable in law; but such a change must take place only when it is necessary, and upon undertaking of an exercise of separating the genuine consumers of coal from the rest. If the coal companies intend to take any measure they may be free to do so. But the same must satisfy the requirements of constitutional as also the statutory schemes; even in relation to an existing scheme e.g. Open Sales Schemes, indisputably the coal companies would be at liberty to formulate the new policy which would meet the changed situation. E-advertisement or E-tender would be welcome but then therefor a greater transparency should be maintained. | 0[ds]65. Some of the appellants before us are manufacturers of hard coke. It is not in dispute that hard coke although does not come within the purview of core sector, for the purpose of distribution of coal, recommendations have been made by the Ministry of Steel that it should be included in the said category. The said move, however, has been opposed by the Ministry of Coal and Energy. We would, therefore, proceed on the basis that hard coke comes within the purview of non-core sector.The power of the Central Government to carry on trade on business activities emanates from the constitutional provisions contained in Article 298 of the Constitution of India. The coal companies, therefore, were under a constitutional obligation to fix a reasonable price. They must differentiate themselves from the private sectors which thrive only on a profit motive. As public sector undertakings, the coal companies, thus, would have a duty to fix the price of an essential commodity in such a manner so as to sub serve the common good. Although the provisions of Section 3(2)(c) of the Essential Commodities Act are not attracted in relation to coal in view of the deregulation of price by the Central Government under the 2000 Order, the reasonable attributes for the purpose of fixing the price of coal should be borne in mind.96. It may not be correct to say that any action which is not in consonance with the provisions of Part IV of the Constitution would be ultra vires but there cannot be any doubt whatsoever that the principles contained therein would form a relevant consideration for determining a question in regard to price fixation of an essential commodity. Directive Principles of State Policy provides for a guidance to interpretation of Fundamental Rights of a citizen as also the statutory rights97. We have noticed hereinbefore that coal was nationalized under Coking Coal Mines (Nationalization) Act, 1972 and Coal Mines (Nationalization) Act, 1973. We have also noticed that the said Acts were enacted so as to fulfill the constitutional object contained in Article 39(b) of the Constitution of India.. It may be true that prices are required to be fixed having regard to the market forces. Demand and supply is a relevant factor as regards fixation of the price. In a market governed by free economy where competition is the buzzword, producers may fix their own price. It is, however, difficult to give effect to the constitutional obligations of a State and the principles leading to a free economy at the same time. A level playing field is the key factor for invoking the new economy. Such a level playing field can be achieved when there are a number of suppliers and when there are competitors in the market enabling the consumer to exercise choices for the purpose of procurement of goods. If the policy of the open market is to be achieved the benefit of the consumer must be kept uppermost in mind by the State.101. The State when exercises its power of price fixation in relation to an essential commodity, has a different role to play. Object of such price fixation is to see that the ultimate consumers obtain the essential commodity at a fair price and for achieving the said purpose the profit margin of the manufacturer/producer may be kept at a bare minimum. The question as to how such fair price is to be determined stricto sensu does not arise in this case, as would appear from the discussions made hereinafter, as here the Central Government has not fixed any price. It left the matter to the coal companies. The coal companies in taking recourse to E-Auction also did not fix a price. They only took recourse to a methodology by which the price of coal became variable. Its only object was to see that maximum possible price of coal is obtained. The Appellants do not question the right of the coal companies to fix the price of coal. Such prices had been fixed on earlier occasions also wherefor legally or otherwise the Central Government used to give its nod of approval. The process of price fixation by the Central Government in exercise of its powers under the 1945 Order continued from 1996 to 2004.The answer to the said question must be rendered is a big emphatic No, as by reason thereof even the coal companies would not know what would be the price of different varieties of coal.104. E-Auction is not a mode to fix price. It is only a mode to obtain maximum price. In other words, deriving the optimum benefit by sale of coal is the goal. While doing so State does not have to follow the principles of fixation of price. It is not required to apply its mind as to its effect. It treats coal like any other commodity. It treats itself like a private trader. A distinction must be borne in mind when a State intends to part with a privilege or a largess as a competitor in the market and when it is expected to fulfill its constitutional goal enshrined under Article 39(b) of the Constitution.104. E-Auction is not a mode to fix price. It is only a mode to obtain maximum price. In other words, deriving the optimum benefit by sale of coal is the goal. While doing so State does not have to follow the principles of fixation of price. It is not required to apply its mind as to its effect. It treats coal like any other commodity. It treats itself like a private trader. A distinction must be borne in mind when a State intends to part with a privilege or a largess as a competitor in the market and when it is expected to fulfill its constitutional goal enshrined under Article 39(b) of the Constitution.109. Some of the coal companies admittedly were reeling under financial problems. Three of them became sick industrial undertakings and a reference was made to BIFR. The Union of India in its counter-affidavit states that a decision was taken to take recourse to E-Auction such that sick coal companies could turn around110. Union of India and the coal companies do not deny that they have a monopoly. They do not deny or dispute that they are State within the meaning of Article 12 of the Constitution of India. They have also not raised any contention that the constitutional obligations in terms of Article 39(b) are not required to be complied with111. It is not in dispute that approximately 94 to 95% of the coal is made available to the core sector at a notified price. We have also noticed that NCCF as also various Central Government and State Government agencies were to get coal at the base price + 25% thereof. It is of some significance to note by way of an example that whereas the core sector gets coal at a price of Rs.1155/- per metric tonne, NCCF, BCCL and Jharkhand State Minerals Development Corporation would get the same at a price of Rs.1386/- per metric tonne, but the price payable by other non-core linked consumers and traders having regard to the flexibility of the price in E-Auction, would be a sum of Rs.1660/- to Rs.1900/- per metric tonne112. The linked consumers constitute about 1% of the total production. The linkage system so far as non-core sector consumers are concerned, has been prevailing since 1973. The beneficiaries of the system primarily are manufacturers of hard coke, smokeless fuel and other products for which the coal is essential raw material. The Open Sales Scheme which was meant for traders, in view of the original policy decision of the coal companies, E-Auction was to be applied to the traders for whom the Open Sales Scheme was applicable. It is, however, not in dispute that having regard to the directions issued by the Central Government to the coal companies, all consumers irrespective of the fact that whether they are linked consumers of core sector or non-core sector, were entitled to take part in E-Auction. Ordinarily traders who are outside the scheme of linkage are entitled to take part in E-Auction. E-Auction was resorted to allegedly on the ground that various method tried by the coal companies including the Open Sales Schemes and MPQ failed for one reason or the other. The Central Vigilance Commission also recommended, having regard to the irregularities committed in the matter of sale of coal through OSS, that publicity of tender should be done through website, in terms of the letter dated 18.12.2003 with a view to bring about greater transparency and to curb malpractice. The coal companies state that such a direction was made in terms of Section 8(1)(h) of the CVC Act, 2003. It was recommended that wherever it is feasible and practical the organization should eventually switch over to the process of e-procurement/e-sale. It is, however, found that the directions are general in nature and no particular direction was issued to the coal companies in terms of Section 8(1)(h) of the CVC 2003 Act which is otherwise permissible in law113. It may be that the practice of E-Marketing and/or E-Advertisement and/or E-Contract is prevailing in various parts of the world but E-Auction, which has a different concept, cannot be equated therewith. Coal is an essential commodity in terms of Section 3(1) of the Essential Commodities Act. Colliery Control Order was made, inter alia, for securing equitable distribution and availability of higher price of essential commodity. The coal companies as also the Central Government, therefore, have a constitutional and statutory obligation to fulfill. Coal companies exercising monopolistic power, thus, were required to distribute coal equitably and at a fair price.114. In Tara Prasad Singh (supra), this Court has categorically considered as to why the Parliament thought it fit to enact the Nationalisation Act i.e. to distribute the resources vested in the State to subserve the common good. The State, it is trite, while fixing the price for the purpose of equitable distribution or otherwise cannot be actuated purely by a profit motive. It should not discharge its functions in such a way as to aspire to earn huge profit specially at the cost of those who are fully dependent upon them for supply of a monopoly item like coal. It cannot be the law that the public sector undertakings while selling essential commodities must suffer loss. It is also not the law that public sector undertakings must distribute subsidy, but what is required in terms of the constitutional scheme adumbrated under Article 39(b) and Article 14 of the Constitution of India is to make the said essential commodity available at a fair price. However, for the purpose of this case, it may not be necessary for us to dilate on the principle of fixation of price, of coal as an essential commodity or otherwise115. Before us the learned counsel for the parties relied upon various decisions of this Court as regard the mode and manner in which deliberations were made on fixation of price of essential commodities over which the monopoly right is exercised. We have also been taken through a recent decision of this Court in Pallavi Refractories (supra). By reason of E-Auction no price is fixed as it would vary from bids to bids. The coal is sold through E-Auction at least twice a month. There will be various places where E-Auction would be conducted simultaneously. In E-Auction, the quantity and quality of coal depending upon its grade, size, colliery from which the same has been extracted, are specified. In such a situation invariably the price for same quality of coal would greatly vary as the bidders would bid having regard to their own requirement. By allowing repeated bids, a person who may be requiring the essential commodity would not be able to prove the same and its non-availability may result in stoppage of production which would lead to various complications. He would, therefore, be driven to a desperate situation. The only price which is fixed for E-Auction is the reserved price which is 25% above the notified price118. E-Auction has effect both on price of coal as also the availability thereof to the non-core sector consumers. Their availability would depend upon successful bids of the consumers. It was introduced for a definite purpose viz. to confine the same to the non-core sector and traders. A deviation to a great extent has been made there from. Even now the core sectors are taking part in E-Auction, but no step has been taken in this behalf.121. However, we may notice that the said claim of the Union of India or the coal companies is not justified. The aforementioned claim of the Central Government is refuted by the consumers stating that the figures given by the Union of India are misleading. Price range of all the subsidiaries have been taken cumulatively instead of taking subsidiary-wise figures. The consumers belonging to core sectors, like power, steel, iron and chemical etc. are big companies like Grasim, Hindalco, Jindal and Haldia Steel who are taking part in the E-Auction as a result whereof the price of coal has shot at the cost of SSI units. Thus, even the linked consumers of core and non-core sectors have been participating therein. Participation of core sector in E-Auction is destructive of its own policy as would appear from the letter of the Ministry of Coal dated 08.04.2005 and, thus, it cannot be justified on the ground of profiteering wherewith the survival of SSI units is involved122. Although claim has been made by the companies that more and more persons are taking part therein, it is difficult for us to accept that out of 16000 consumers 12000 have taken part; as E-Auctions are more frequently done, the possibility of the same persons taking part again and again cannot be ruled out. It is difficult to comprehend the stand of the Union of India that E-Auction is being taken recourse to by more and more persons and, if that be so, there was no reason as to why the price of coal by E-Auction has declined123. Before us a chart has been filed with a view of show that after introduction of the scheme of E-Auction, supply of coal to many of the coke ovens has decreased affecting their ultimate production. Apprehensions have been raised that ultimately many of the units may have to be closed. We think that the coal companies should see to it that such a situation is avoided124. However, it is not in dispute that auction price being online, no other bidder is aware of the contents of the bid submitted by the bidder. No bidder will have access to the records pertaining to E-Auction so as to ascertain who is the highest bidder or what is the highest bid price; or no bidder would have knowledge or access to the various bids submitted by the bidders against the particular grade of coal so as to arrive at an average E-Auction price of particular grade of coal. Only MSTC and MJCPL and the companies who are conducting the E-Auction, would have access to the details of the bids submitted by the bidders. No eligibility criteria having been fixed, any person including traders can participate and bid in the E-Auction. Highest price and highest quantity are the only factors for sale/allocation of coal to a bidder in terms of the said scheme; as E-Auction results in traders buying large quantities of coal. Consequently, the manufacturers of hard coke and smokeless coal as also other small units have to buy coal at prohibitive rates from traders . The methodology for allocation of coal to a bidder of E-Auction is, thus, inequitable, irrational and fortuitous.125. Since a particular grade is allocated/sold at different prices to different bidders, E-Auction ultimately leads to sale of a particular grade of coal at variable prices in the market126. In spite of Government of Indias office memorandum promising sale of coal to the linked consumers at average E-Auction rate, sale to linked consumers is being made at the highest bid price and not at the average bid price127. It is accepted that coal is a scarce commodity and the Government companies are not in a position to supply coal as per demand of the same, which may be enormous, despite the fact that a certain level of import of coal is also permitted128. However, the advantages of E-Auction per se or disadvantages thereof may not be decisive as this Court is concerned with the constitutionality thereof. It has not been denied or disputed that by reason of E-Auction price of coal is not fixed. The concept of price fixation is that all persons who are in requirement of the commodity should know the basis or criteria thereof. If a price is fixed, they would be able to lay down their own business policy in such a manner so that they can have a level playing field in the market of competition and such competition is not only between the persons whose end-project is similar or otherwise based on coal but who produce other products not based completely on coal. Variability in the price of coal would affect all who have to depend on coal e.g. we may notice that hard coke is considered to be vital in the manufacturing process of steel. If the price of coal is not fixed, the price of hard coke cannot be fixed, which may give rise to uncertainty in the price of steel or smokeless coal which caters to the needs of the small consumers both for domestic use also for use in the small hotels and/or use in rural areas. It was, therefore, necessary that the price of coal be made known. The contention of the coal companies is that having regard to the availability of LPG, smokeless coal is no longer in use. Ex facie, the said plea is unacceptable129. Moreover, even fixation of price of LPG in turn would depend upon the fixation of oil products in other countries. The Central Government, it is well known, having regard to the effect that may be caused to the people in general, takes all precautions before fixing the price thereof. The Central Government has never increased the LPG price exorbitantly130. While adopting a policy decision as regards the mode of determining the price of coal either fixed or variable, the coal companies were bound to keep in mind social and economic aspect of the matter. They could not take any step which would defeat the constitutional goal [See Mahabir Auto Stores and Others v. Indian Oil Corporation and Others. (1990) 3 SCC 752 ]131. Even while fixation of tariff for the supply of electric energy in terms of the provisions of Section 49 of the Electricity (Supply) Act, 1948, only a reasonable profit is contemplated and not profiteering [See S.N. Govinda Prabhu (supra) and ONGC (supra)132. It may be true as has been held in the aforementioned cases that cost alone did not determine the prices and the same has to be determined upon taking into consideration many complex factors but no decision of this Court says that any arbitrary fixation of price and arbitrary mode of fixation would satisfy the test of reasonableness as contained in Article 14 of the Constitution of India.136. In Ramana Dayaram Shetty v. International Airport of India and Others [(1979) 3 SCC 489 = AIR 1979 SC 1628 ], this Court held:the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. . . The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure.. This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant140. We have noticed hereinbefore that when the coal companies themselves manufactured coke for domestic consumers, the same used to cause health hazards. They intended to outsource production of manufacturing soft coke; wherefor they had asked the Governments of Bihar and West Bengal to encourage setting up of smokeless coal units assuring supply of coal. Such linkage system has, therefore, been developed under which the consumers are linked to specify mines from which they received specified quantities and specified grades of coal on a monthly basis141. Coke oven units, in particular, are linked in the W-II, W-III & W-IV of the non-core sector. The importance of the linkage system despite resort to E-Auction has since been recognized by the Government of India, as would appear from its letter dated 19.04.2005. Whereas manufacturers of hard coke would require coking coal, others would require only non-coking coal.143. We are not suggesting that the linkage system can never be brought to an end but it may not be appreciated as to how while maintaining the linkage system, they can be deprived indirectly of the benefit therefrom; and how they should be treated equally with other traders. Traders indisputably would require coal but not for their own consumption. If they purchase coal at any price, they would sell the same at a higher price. They would certainly mind variability in the price of coal as the price of their end products would have nexus therewith. Moreover, if the traders would pay higher price for procuring coal, the general consumers would have to pay more. Those who are linked consumers or who are small traders, thus, stand on a different footing. Merely to sell it as a profit to the traders who do not possess the purchasing capacity is not limited or controlled by the market conditions, whereas it is so for the linked non-core sector. The traders themselves create and control the market conditions.145. The coal companies themselves highlighted this distinction in Civil Appeal No. 5547 of 2004 in Bijoy Kumar Poddars case. We need not, however, deal with the said matter separately as the questions raised are interconnected with the other matters. We may notice at once that the necessity to maintain supply of coal to the linked sector was highlighted by the coal companies themselves in their special leave petitions filed before this Court146. It may be true that the linked consumers get two opportunities to procure coal; once by way of E-Auction and again by way of paying the average weighted price; but availability of coal itself is not certain having regard to the fact that admittedly keeping in view the concept of MPQ, they would not get the full supply for their demand. Even otherwise, a distinction should be made between consumers and traders and thus arises the necessity of different price regimes for the consumers as a class as against traders as a different class147. The original scheme of E-Auction was meant to be applied only to the linked non-core sector consumers and traders. Thus, thereby the policy that the linked consumers should form a class by themselves was sought to be given a go-bye. We have, however, noticed hereinbefore that having regard to the intervention of the Central Government, the coal companies deviated from the said scheme and considered even the non-core sector consumers to be a separate class; as they not only became entitled to take part in the E-Auction along with traders but also were sought to be assured of supply of coal having regard to their own requirements as regard both quality and quantity subject, of course, to their paying the price at the average weighted price. The stand taken by the coal companies before the Calcutta High Court as also before this Court assumes significance only in that context. However, now it appears that the coal companies have given a complete go-bye to the original scheme of E-Auction inasmuch as not only the traders or the non-core sector consumers but also core sector consumers had also been allowed to participate therein. A consumer of coal falling in any category as also a person who intends to purchase coal for his personal use would, therefore, be entitled to take part in E-Auction. Whereas the consumers in the core sector would not only be entitled to allotment of coal at a price fixed by the coal companies but also would be entitled to take part in E-auction. The non-core sector consumers although as linked consumers form a separate and distinct class vis-à-vis the traders, they would not be entitled to the benefit of obtaining coal at a fixed price. The question as regards the discrimination between two categories of consumer assumes some importance148. The effect is that today, while the core sector (92%) on its own and non-core non-linked SSI/Tiny units (through the NCCF/other agencies) (1%) are being supplied coal at a fixed price, on the other hand, the non-core linked SSI/Tiny units (4%) are being subjected to differential treatment without any rational classification by supplying the coal to the latter on the price to be ascertained by the trader-controlled process of E-Auction and thereby putting the petitioner-units at par with the trader. The scheme of E-Auction is, therefore, ultra vires Article 14 of the Constitution of India.149. The submission of the learned Additional Solicitor General to the effect that the policy decision of a State cannot be the subject matter of judicial review is stated to be rejected. E-Auction is not a policy decision of the Central Government. Such a policy decision on the part of the executive of the Central Government must be strictly construed in terms of Article 77 of the Constitution of India. Its exercise of such powers has nothing to do with the price fixation by a policy. The State while exercising its power under the Essential Commodities Act, fixes the price keeping in mind several factors, in particular the larger interest of the people. Price fixation of an essential commodity, therefore, is determined on the touchstone of public interest. While doing so the State is expected to follow a rational and fair procedure and for the said purpose may collect data, obtain public opinion, and may appoint an expert committee150. In the facts and circumstances of the case, however, the approach of the coal companies, who according to the Union of India had been given a free hand to determine its price for coal, is only earning profit. It has been accepted that three subsidiary companies and Coal India Ltd. who were sick companies, like Bharat Coking Coal Ltd. (BCCL), have started E-Auction. It has succeeded in its attempt to a great extent as the said coal companies are no longer sick companies. They have proceeded only to safeguard their own interests, as dealer and not as a State. Recourse to E-Auction had been taken primarily by way of a profit motive. No public opinion was sought for and no expert committee was appointed. The statutory and constitutional duties had not been kept in view. Conveniently, while making the said policy decision, the coal companies did not remind themselves that as they are instrumentalities of the State, they are bound to adhere to the Directive Principles of the State and the prime object for which the Nationalization Acts were enacted151. Good governance and good corporate governance are distinct and separate. Whereas good governance would mean protection of the weaker sections of the people; so far as good corporate governance is concerned, the same may not be of much relevance. Even the coal companies in taking recourse to E-Auction did not give effect to the concept of corporate social responsibility152. What would be profiteering has been noticed in T.M.A. Pai Foundation v State of Karnataka [(2002) 8 SCC 481] ; Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC 697] and P.A. Inamdar v. State of Maharashtra [(2005) 6 SCC 537] . In these decisions, it has been held that although education is an industry, and those who impart education do so as a part of their fundamental right in terms of Article 19(1)(g) of the Constitution of India, profiteering should not be taken recourse to153. In fact the decisions of this Court on price fixation also point out that although a reasonable profit may be permissible, profiteering would not be. The coal companies evolve price fixation but admittedly they have been doing so at the instance of the Central Government. The Central Government seeks to exercise its statutory power. Such a power, however, is confined to four-corners of the 2000 Order. When there is no control over price, the Central Government is forbidden to issue any direction which will have an impact thereover.158. Supply and/or disposal of coal which would come within the purview of Colliery Control Order, 2000, would, thus, take within its sweep only : to whom the supply would be made, what would be the quantity, the mode, period or the source of supply. Such a power to issue directions would not include fixation of price. E-Auction is not related to policy for supply of coal. It is essentially the price therefor. The Central Government in that view of the matter either directly or indirectly while purportedly exercising its power under clause 6 read with clause 9 of the Colliery Control Order could not have issued any direction in the garb of disposal of coal by way of E-Auction. The Central Government itself says that it allowed the coal companies to fix their own price; if that be so in terms of the statute it could not issue any direction which would have direct or indirect impact on price of coal. It, as indicated hereinbefore, directed that 10 lacs MT coal be sold through E-Auction; but while doing so stricto sensu, its power and control to regulate supply of coal could not be exercised in that sense. Apart from the fact that it also does not satisfy the attributes of supply, as noticed hereinbefore, the supply of coal itself has not been brought within the purview thereof. Furthermore no notification has been issued by the Central Government regulating supply of coal159. By allowing E-Auction in respect of 10 lacs MT of coal, it merely quantified the amount of coal which was required to be sold. It did not bring within its sweep taking recourse to the mode of E-Auction so as to enable the companies to obtain a valuable price. Clause 6 of the Colliery Control Order does not envisage the samePromissory Estoppel :160. We have noticed hereinbefore that smokeless coal operators had set up their units at the behest of the coal companies. Those who had set up their units in the erstwhile State of Bihar and West Bengal evidently did so at the behest of the companies having been encouraged therefor. It was done to share the burden of coal companies to supply soft coke to the small consumers. Doctrine of promissory estoppel would, therefore, be applicable161. The concerned States also intended to grant incentives to such industrial units by way of waiver and/ or deferment of payment of sales tax wherefor Rule 28A in the Sales Tax Rules was introduced. Sales Tax laws enacted by the States contain a provision empowering the State to grant such exemption162. The relevant provisions of the Act and the Rules framed thereunder indisputably were made keeping in view the industrial policy of the State. Such industrial policies by way of legislation or otherwise, subject of course to the provisions of the statute have been framed by several other States.174. Coal being a scarce commodity, its utility for the purpose for which it is needed is essential. Although, technically, in view of the fact that no price is fixed for coal, there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. The very fact that despite best efforts of the Central Government, the coal companies failed to curb the menace of a section of people and to deal in coal excluding other general people therefrom or the linked consumers misusing their position of obtaining allotment of coal either wholly or in part, it is absolutely necessary that some mechanism should be found out for plugging the loopholes. The Union of India or the coal companies appear to have lost confidence in the State Governments. They had carried out joint inspection and in that process they must have arrived at a satisfaction about the genuineness of the claims of industrial units for which the linkage system was meant for. Before us most of the consumers, with a view to obtain supply of coal had filed documents to prove their genuineness. The said documents must be scrutinized by the authorities of the coal companies. In the event, they have any suspicion, inspection should be carried out by officers appointed by the Chairman-cum-Managing Director of the concerned company within whose jurisdiction the unit is situated175. With a view to evolve a viable policy, a committee should be constituted by the Union of India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. They would be entitled to lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefor. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with176. Hard coke plants are also coal mines within the meaning of Colliery Control Order, 2000. Hard coke is coal within the meaning of the provisions thereof. The Central Government, therefore, may think it fit to widen the definition of coal so as to include the smokeless coal in exercise of its power under the Essential Commodities Act. We may notice in ONGC (supra), this Court has held that slurries are a part of coal and is governed by the provisions of the Mines and Minerals (Regulation and Development) Act. Such being the wider definition of coal, we fail to see any reason as to why proper measure cannot be taken by the Union of India to have a complete control thereover. Any strict mechanism to find out the genuine consumers would go a long way in taking preventive measures and dealing with coal by unscrupulous persons for unauthorized purposes. Those who do so, should be dealt with stringently but the same would not mean that the genuine consumers should suffer for want of coal177. We, in the peculiar facts and circumstances of this case, are of the opinion that it may not be difficult to find out as to who the genuine consumers are. So far as owners of the hard coke ovens are concerned, they are members of the association and their identity can easily be verified178. However, discussions made hereinbefore should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contra distinguished from a mere profit motive. Any change in the policy decision for cogent and valid reasons is acceptable in law; but such a change must take place only when it is necessary, and upon undertaking of an exercise of separating the genuine consumers of coal from the rest. If the coal companies intend to take any measure they may be free to do so. But the same must satisfy the requirements of constitutional as also the statutory schemes; even in relation to an existing scheme e.g. Open Sales Schemes, indisputably the coal companies would be at liberty to formulate the new policy which would meet the changed situation. E-advertisement or E-tender would be welcome but then therefor a greater transparency should be maintained. | 0 | 25,908 | 6,788 | ### 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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for exercise of public navigation rights. Initially however, the authorities by regular and consistent practice had accepted that such rights did not exist. The Court of Appeal said that although the expectations were legitimate, the action must fail. According to Peter Gibson L.J., the action failed as legitimate expectations could only be granted against lawful claims. Although May L.J., (like Menace L.J.) came to the same conclusion, they refused to accept legal incapacity as an automatic answer against legitimate expectation (amounting to convention right). They sought a kind of a balance where while allowing the Hedsor water to be open to rights of navigation, such use would not be actively encouraged by the authority. 173. It was held that, however, there was no need to restrict such balancing to cases where the right was one protected under the convention. It could be extended to all cases where the unlawful action was not adverse to public interest. Conclusion: 174. Coal being a scarce commodity, its utility for the purpose for which it is needed is essential. Although, technically, in view of the fact that no price is fixed for coal, there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. The very fact that despite best efforts of the Central Government, the coal companies failed to curb the menace of a section of people and to deal in coal excluding other general people therefrom or the linked consumers misusing their position of obtaining allotment of coal either wholly or in part, it is absolutely necessary that some mechanism should be found out for plugging the loopholes. The Union of India or the coal companies appear to have lost confidence in the State Governments. They had carried out joint inspection and in that process they must have arrived at a satisfaction about the genuineness of the claims of industrial units for which the linkage system was meant for. Before us most of the consumers, with a view to obtain supply of coal had filed documents to prove their genuineness. The said documents must be scrutinized by the authorities of the coal companies. In the event, they have any suspicion, inspection should be carried out by officers appointed by the Chairman-cum-Managing Director of the concerned company within whose jurisdiction the unit is situated. 175. With a view to evolve a viable policy, a committee should be constituted by the Union of India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. They would be entitled to lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefor. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with. 176. Hard coke plants are also coal mines within the meaning of Colliery Control Order, 2000. Hard coke is coal within the meaning of the provisions thereof. The Central Government, therefore, may think it fit to widen the definition of coal so as to include the smokeless coal in exercise of its power under the Essential Commodities Act. We may notice in ONGC (supra), this Court has held that slurries are a part of coal and is governed by the provisions of the Mines and Minerals (Regulation and Development) Act. Such being the wider definition of coal, we fail to see any reason as to why proper measure cannot be taken by the Union of India to have a complete control thereover. Any strict mechanism to find out the genuine consumers would go a long way in taking preventive measures and dealing with coal by unscrupulous persons for unauthorized purposes. Those who do so, should be dealt with stringently but the same would not mean that the genuine consumers should suffer for want of coal. 177. We, in the peculiar facts and circumstances of this case, are of the opinion that it may not be difficult to find out as to who the genuine consumers are. So far as owners of the hard coke ovens are concerned, they are members of the association and their identity can easily be verified. 178. However, discussions made hereinbefore should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contra distinguished from a mere profit motive. Any change in the policy decision for cogent and valid reasons is acceptable in law; but such a change must take place only when it is necessary, and upon undertaking of an exercise of separating the genuine consumers of coal from the rest. If the coal companies intend to take any measure they may be free to do so. But the same must satisfy the requirements of constitutional as also the statutory schemes; even in relation to an existing scheme e.g. Open Sales Schemes, indisputably the coal companies would be at liberty to formulate the new policy which would meet the changed situation. E-advertisement or E-tender would be welcome but then therefor a greater transparency should be maintained.
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units at the behest of the coal companies. Those who had set up their units in the erstwhile State of Bihar and West Bengal evidently did so at the behest of the companies having been encouraged therefor. It was done to share the burden of coal companies to supply soft coke to the small consumers. Doctrine of promissory estoppel would, therefore, be applicable161. The concerned States also intended to grant incentives to such industrial units by way of waiver and/ or deferment of payment of sales tax wherefor Rule 28A in the Sales Tax Rules was introduced. Sales Tax laws enacted by the States contain a provision empowering the State to grant such exemption162. The relevant provisions of the Act and the Rules framed thereunder indisputably were made keeping in view the industrial policy of the State. Such industrial policies by way of legislation or otherwise, subject of course to the provisions of the statute have been framed by several other States.174. Coal being a scarce commodity, its utility for the purpose for which it is needed is essential. Although, technically, in view of the fact that no price is fixed for coal, there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. The very fact that despite best efforts of the Central Government, the coal companies failed to curb the menace of a section of people and to deal in coal excluding other general people therefrom or the linked consumers misusing their position of obtaining allotment of coal either wholly or in part, it is absolutely necessary that some mechanism should be found out for plugging the loopholes. The Union of India or the coal companies appear to have lost confidence in the State Governments. They had carried out joint inspection and in that process they must have arrived at a satisfaction about the genuineness of the claims of industrial units for which the linkage system was meant for. Before us most of the consumers, with a view to obtain supply of coal had filed documents to prove their genuineness. The said documents must be scrutinized by the authorities of the coal companies. In the event, they have any suspicion, inspection should be carried out by officers appointed by the Chairman-cum-Managing Director of the concerned company within whose jurisdiction the unit is situated175. With a view to evolve a viable policy, a committee should be constituted by the Union of India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. They would be entitled to lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefor. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with176. Hard coke plants are also coal mines within the meaning of Colliery Control Order, 2000. Hard coke is coal within the meaning of the provisions thereof. The Central Government, therefore, may think it fit to widen the definition of coal so as to include the smokeless coal in exercise of its power under the Essential Commodities Act. We may notice in ONGC (supra), this Court has held that slurries are a part of coal and is governed by the provisions of the Mines and Minerals (Regulation and Development) Act. Such being the wider definition of coal, we fail to see any reason as to why proper measure cannot be taken by the Union of India to have a complete control thereover. Any strict mechanism to find out the genuine consumers would go a long way in taking preventive measures and dealing with coal by unscrupulous persons for unauthorized purposes. Those who do so, should be dealt with stringently but the same would not mean that the genuine consumers should suffer for want of coal177. We, in the peculiar facts and circumstances of this case, are of the opinion that it may not be difficult to find out as to who the genuine consumers are. So far as owners of the hard coke ovens are concerned, they are members of the association and their identity can easily be verified178. However, discussions made hereinbefore should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contra distinguished from a mere profit motive. Any change in the policy decision for cogent and valid reasons is acceptable in law; but such a change must take place only when it is necessary, and upon undertaking of an exercise of separating the genuine consumers of coal from the rest. If the coal companies intend to take any measure they may be free to do so. But the same must satisfy the requirements of constitutional as also the statutory schemes; even in relation to an existing scheme e.g. Open Sales Schemes, indisputably the coal companies would be at liberty to formulate the new policy which would meet the changed situation. E-advertisement or E-tender would be welcome but then therefor a greater transparency should be maintained.
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Ved Prakash Vs. U.O.I. | during his entire service as reflected by the factors mentioned therein. The Commodore, Bureau of Sailors is the authority to grant re-engagement. According to para 9 (a) and (b), the re-engagement shall not be less than 2 years and not exceed 5 years. Para 9 (c) of the Navy Order is as under:"Not-withstanding the above the sailors of Artificer Cadre and Submarine Branch will be governed by separate re-engagement norms in force from time to time. Sailors of Submarine Branch, on expiry of initial engagement, will be further re-engagement in the Submarine Cadre subject to availability of vacancies in the cadre. Otherwise, if re-engaged, they will be revered to general service. Therefore, at the time of requesting for re-engagement, they are to give an undertaking as per Appendix `B to this order that in case of Submarine Cadre becoming overborne they are liable to be reverted to general service."The procedure to be followed for re-engagement under Low Medical Category is dealt with in para 11 which provides that Sailors in permanent Low Medical Category below S2 A2 will not normally be given re-engagement. 11. It is clear from para 9 (c) of the Navy Order 02/07 that the Sailors of Artificer Cadre, to which the Appellant belongs, will be governed by separate re-engagement norms in force from time to time. On being asked to show the norms applicable to Sailors of Artificer Cadre, counsel appearing for both sides submitted that there are no such norms. The non obstante clause in para 9 (c) suggests that the conditions prescribed for re-engagement will not be applicable to Sailors of Artificer Cadre. As no norms as contemplated in para 9 (c) have been framed, the re-engagement of Sailors of Artificer Cadre will have to be necessarily governed by the Policy dated 21.11.2006. The Appellant would be entitled to be considered for re-engagement for 5 years till he completes 15 years of service as per the Policy. The decision of the fourth respondent dated 29.11.2010 re-engaging the Appellant for 2 years is liable to be set aside on this ground alone. 12. The learned counsel for the Appellant and the learned ASG have made their submissions on the basis that Navy Order 02/07 is applicable to the re-engagement of the Appellant. We proceed further to examine whether the decision of the fourth respondent is justifiable applying the norms as per the Navy Order 02/07. The conditions mentioned in para 4 of Navy Order 02/07 are that 2 out of 3 annual assessments should not be below very good, that the Commanding Officer should have recommended the Sailor as suitable in all respects, the Sailor must have been declared medically fit and that the manpower requirements of this service should warrant his re-engagement. The annual assessments of the Appellant show the grade of `Very Good character from 2002-2009 and `Superior Efficiency from 2004-2009. The Commanding Officer made a strong recommendation for re-engagement of the Appellant for a period of 5 years. The Appellant was also found medically fit by being upgraded to S2 A2 (PMT) Category in December, 2009. His overall performance was found to be very good as per the recommendation of the Commanding Officer dated 06.10.2010. 13. One of the reasons given by the fourth respondent in the decision dated 29.11.2010 is that the Appellant was in medical category S3 A2 from 2006-2009 and was upgraded to S2 A2 (PMT) only in December, 2009. As per para 11 of Navy Order 02/07, re-engagement of Sailors in permanent low category below S2 A2 will not be made normally. The Appellant is in medical category S2 A2 (PMT) and as such does not suffer any disqualification. The fourth respondent also held that the Appellant served in Afloat Billets for a very limited period and that he has been positioned onboard only in August, 2010. The learned counsel for the Appellant submitted that due to his being in low medical category he was not sent for duty at sea for a long period. He also stated that the Appellant served for three and half years out of 10 years at sea which cannot be said to be a short period. The learned ASG submitted that the Appellant served only for one year at sea which is a very short period for a Sailor. No norms showing the minimum period of service to be spent by a Sailor at sea were placed before us. The Navy Order 02/07 also does not provide for any such prescription. It is relevant to refer to the recommendation dated 06.10.2010 of the Commanding Officer who stated that the Appellant proved to be instrumental in executing critical defect rectifications onboard though he joined the ship recently. The Appellant appears to be an efficient hand and he ought to have been given re-engagement for 5 years. The Commanding Officer further stated that the Appellant possesses excellent professional knowledge and he has gained the confidence of his superiors for single handedly resolving technical defects. The Appellants professional competence was found to be outstanding apart from the fact that he topped the EAR 4 `Q Board by scoring 90 % marks. 14. Another reason given by the Fourth Respondent is that the Appellant did not complete the CHEAR `Q Course due to low medical category/ domestic requirements. We perused the record to verify the reasons for the Appellant not taking CHEAR `Q Course. On one occasion he did not opt to take the course due to the serious illness of his wife. He was not sent for the course on four occasions due to his placement in the low medical category. The Appellant cannot be accused of intentionally avoiding the course. In view of the above, the Appellant satisfies the conditions for re-engagement in para 4 of Navy Order 02/07. The fourth respondent ought to have re-engaged the Appellant for 5 years by giving importance to the recommendations of the fifth and third respondents. As mentioned above, the Appellants performance was found to be outstanding. | 1[ds]11. It is clear from para 9 (c) of the Navy Order 02/07 that the Sailors of Artificer Cadre, to which the Appellant belongs, will be governed by separatenorms in force from time to time. On being asked to show the norms applicable to Sailors of Artificer Cadre, counsel appearing for both sides submitted that there are no such norms. The non obstante clause in para 9 (c) suggests that the conditions prescribed forwill not be applicable to Sailors of Artificer Cadre. As no norms as contemplated in para 9 (c) have been framed, theof Sailors of Artificer Cadre will have to be necessarily governed by the Policy dated 21.11.2006. The Appellant would be entitled to be considered forfor 5 years till he completes 15 years of service as per the Policy. The decision of the fourth respondent dated 29.11.2010the Appellant for 2 years is liable to be set aside on this ground alone.The learned counsel for the Appellant and the learned ASG have made their submissions on the basis that Navy Order 02/07 is applicable to theof the Appellant.We proceed further to examine whether the decision of the fourth respondent is justifiable applying the norms as per the Navy Order 02/07.The conditions mentioned in para 4 of Navy Order 02/07 are that 2 out of 3 annual assessments should not be below very good, that the Commanding Officer should have recommended the Sailor as suitable in all respects, the Sailor must have been declared medically fit and that the manpower requirements of this service should warrant hisThe annual assessments of the Appellant show the grade of `Very Good character fromand `Superior Efficiency fromThe Commanding Officer made a strong recommendation forof the Appellant for a period of 5 years. The Appellant was also found medically fit by being upgraded to S2 A2 (PMT) Category in December, 2009. His overall performance was found to be very good as per the recommendation of the Commanding Officer dated 06.10.2010.One of the reasons given by the fourth respondent in the decision dated 29.11.2010 is that the Appellant was in medical category S3 A2 fromand was upgraded to S2 A2 (PMT) only in December, 2009. As per para 11 of Navy Order 02/07,of Sailors in permanent low category below S2 A2 will not be made normally. The Appellant is in medical category S2 A2 (PMT) and as such does not suffer any disqualification. The fourth respondent also held that the Appellant served in Afloat Billets for a very limited period and that he has been positioned onboard only in August, 2010. The learned counsel for the Appellant submitted that due to his being in low medical category he was not sent for duty at sea for a long period. He also stated that the Appellant served for three and half years out of 10 years at sea which cannot be said to be a short period. The learned ASG submitted that the Appellant served only for one year at sea which is a very short period for a Sailor. No norms showing the minimum period of service to be spent by a Sailor at sea were placed before us. The Navy Order 02/07 also does not provide for any such prescription. It is relevant to refer to the recommendation dated 06.10.2010 of the Commanding Officer who stated that the Appellant proved to be instrumental in executing critical defect rectifications onboard though he joined the ship recently. The Appellant appears to be an efficient hand and he ought to have been givenfor 5 years. The Commanding Officer further stated that the Appellant possesses excellent professional knowledge and he has gained the confidence of his superiors for single handedly resolving technical defects. The Appellants professional competence was found to be outstanding apart from the fact that he topped the EAR 4 `Q Board by scoring 90 % marks.Another reason given by the Fourth Respondent is that the Appellant did not complete the CHEAR `Q Course due to low medical category/ domestic requirements. We perused the record to verify the reasons for the Appellant not taking CHEAR `Q Course. On one occasion he did not opt to take the course due to the serious illness of his wife. He was not sent for the course on four occasions due to his placement in the low medical category. The Appellant cannot be accused of intentionally avoiding the course. In view of the above, the Appellant satisfies the conditions forin para 4 of Navy Order 02/07. The fourth respondent ought to havethe Appellant for 5 years by giving importance to the recommendations of the fifth and third respondents. As mentioned above, the Appellants performance was found to be outstanding. | 1 | 2,545 | 843 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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during his entire service as reflected by the factors mentioned therein. The Commodore, Bureau of Sailors is the authority to grant re-engagement. According to para 9 (a) and (b), the re-engagement shall not be less than 2 years and not exceed 5 years. Para 9 (c) of the Navy Order is as under:"Not-withstanding the above the sailors of Artificer Cadre and Submarine Branch will be governed by separate re-engagement norms in force from time to time. Sailors of Submarine Branch, on expiry of initial engagement, will be further re-engagement in the Submarine Cadre subject to availability of vacancies in the cadre. Otherwise, if re-engaged, they will be revered to general service. Therefore, at the time of requesting for re-engagement, they are to give an undertaking as per Appendix `B to this order that in case of Submarine Cadre becoming overborne they are liable to be reverted to general service."The procedure to be followed for re-engagement under Low Medical Category is dealt with in para 11 which provides that Sailors in permanent Low Medical Category below S2 A2 will not normally be given re-engagement. 11. It is clear from para 9 (c) of the Navy Order 02/07 that the Sailors of Artificer Cadre, to which the Appellant belongs, will be governed by separate re-engagement norms in force from time to time. On being asked to show the norms applicable to Sailors of Artificer Cadre, counsel appearing for both sides submitted that there are no such norms. The non obstante clause in para 9 (c) suggests that the conditions prescribed for re-engagement will not be applicable to Sailors of Artificer Cadre. As no norms as contemplated in para 9 (c) have been framed, the re-engagement of Sailors of Artificer Cadre will have to be necessarily governed by the Policy dated 21.11.2006. The Appellant would be entitled to be considered for re-engagement for 5 years till he completes 15 years of service as per the Policy. The decision of the fourth respondent dated 29.11.2010 re-engaging the Appellant for 2 years is liable to be set aside on this ground alone. 12. The learned counsel for the Appellant and the learned ASG have made their submissions on the basis that Navy Order 02/07 is applicable to the re-engagement of the Appellant. We proceed further to examine whether the decision of the fourth respondent is justifiable applying the norms as per the Navy Order 02/07. The conditions mentioned in para 4 of Navy Order 02/07 are that 2 out of 3 annual assessments should not be below very good, that the Commanding Officer should have recommended the Sailor as suitable in all respects, the Sailor must have been declared medically fit and that the manpower requirements of this service should warrant his re-engagement. The annual assessments of the Appellant show the grade of `Very Good character from 2002-2009 and `Superior Efficiency from 2004-2009. The Commanding Officer made a strong recommendation for re-engagement of the Appellant for a period of 5 years. The Appellant was also found medically fit by being upgraded to S2 A2 (PMT) Category in December, 2009. His overall performance was found to be very good as per the recommendation of the Commanding Officer dated 06.10.2010. 13. One of the reasons given by the fourth respondent in the decision dated 29.11.2010 is that the Appellant was in medical category S3 A2 from 2006-2009 and was upgraded to S2 A2 (PMT) only in December, 2009. As per para 11 of Navy Order 02/07, re-engagement of Sailors in permanent low category below S2 A2 will not be made normally. The Appellant is in medical category S2 A2 (PMT) and as such does not suffer any disqualification. The fourth respondent also held that the Appellant served in Afloat Billets for a very limited period and that he has been positioned onboard only in August, 2010. The learned counsel for the Appellant submitted that due to his being in low medical category he was not sent for duty at sea for a long period. He also stated that the Appellant served for three and half years out of 10 years at sea which cannot be said to be a short period. The learned ASG submitted that the Appellant served only for one year at sea which is a very short period for a Sailor. No norms showing the minimum period of service to be spent by a Sailor at sea were placed before us. The Navy Order 02/07 also does not provide for any such prescription. It is relevant to refer to the recommendation dated 06.10.2010 of the Commanding Officer who stated that the Appellant proved to be instrumental in executing critical defect rectifications onboard though he joined the ship recently. The Appellant appears to be an efficient hand and he ought to have been given re-engagement for 5 years. The Commanding Officer further stated that the Appellant possesses excellent professional knowledge and he has gained the confidence of his superiors for single handedly resolving technical defects. The Appellants professional competence was found to be outstanding apart from the fact that he topped the EAR 4 `Q Board by scoring 90 % marks. 14. Another reason given by the Fourth Respondent is that the Appellant did not complete the CHEAR `Q Course due to low medical category/ domestic requirements. We perused the record to verify the reasons for the Appellant not taking CHEAR `Q Course. On one occasion he did not opt to take the course due to the serious illness of his wife. He was not sent for the course on four occasions due to his placement in the low medical category. The Appellant cannot be accused of intentionally avoiding the course. In view of the above, the Appellant satisfies the conditions for re-engagement in para 4 of Navy Order 02/07. The fourth respondent ought to have re-engaged the Appellant for 5 years by giving importance to the recommendations of the fifth and third respondents. As mentioned above, the Appellants performance was found to be outstanding.
### Response:
1
### Explanation:
11. It is clear from para 9 (c) of the Navy Order 02/07 that the Sailors of Artificer Cadre, to which the Appellant belongs, will be governed by separatenorms in force from time to time. On being asked to show the norms applicable to Sailors of Artificer Cadre, counsel appearing for both sides submitted that there are no such norms. The non obstante clause in para 9 (c) suggests that the conditions prescribed forwill not be applicable to Sailors of Artificer Cadre. As no norms as contemplated in para 9 (c) have been framed, theof Sailors of Artificer Cadre will have to be necessarily governed by the Policy dated 21.11.2006. The Appellant would be entitled to be considered forfor 5 years till he completes 15 years of service as per the Policy. The decision of the fourth respondent dated 29.11.2010the Appellant for 2 years is liable to be set aside on this ground alone.The learned counsel for the Appellant and the learned ASG have made their submissions on the basis that Navy Order 02/07 is applicable to theof the Appellant.We proceed further to examine whether the decision of the fourth respondent is justifiable applying the norms as per the Navy Order 02/07.The conditions mentioned in para 4 of Navy Order 02/07 are that 2 out of 3 annual assessments should not be below very good, that the Commanding Officer should have recommended the Sailor as suitable in all respects, the Sailor must have been declared medically fit and that the manpower requirements of this service should warrant hisThe annual assessments of the Appellant show the grade of `Very Good character fromand `Superior Efficiency fromThe Commanding Officer made a strong recommendation forof the Appellant for a period of 5 years. The Appellant was also found medically fit by being upgraded to S2 A2 (PMT) Category in December, 2009. His overall performance was found to be very good as per the recommendation of the Commanding Officer dated 06.10.2010.One of the reasons given by the fourth respondent in the decision dated 29.11.2010 is that the Appellant was in medical category S3 A2 fromand was upgraded to S2 A2 (PMT) only in December, 2009. As per para 11 of Navy Order 02/07,of Sailors in permanent low category below S2 A2 will not be made normally. The Appellant is in medical category S2 A2 (PMT) and as such does not suffer any disqualification. The fourth respondent also held that the Appellant served in Afloat Billets for a very limited period and that he has been positioned onboard only in August, 2010. The learned counsel for the Appellant submitted that due to his being in low medical category he was not sent for duty at sea for a long period. He also stated that the Appellant served for three and half years out of 10 years at sea which cannot be said to be a short period. The learned ASG submitted that the Appellant served only for one year at sea which is a very short period for a Sailor. No norms showing the minimum period of service to be spent by a Sailor at sea were placed before us. The Navy Order 02/07 also does not provide for any such prescription. It is relevant to refer to the recommendation dated 06.10.2010 of the Commanding Officer who stated that the Appellant proved to be instrumental in executing critical defect rectifications onboard though he joined the ship recently. The Appellant appears to be an efficient hand and he ought to have been givenfor 5 years. The Commanding Officer further stated that the Appellant possesses excellent professional knowledge and he has gained the confidence of his superiors for single handedly resolving technical defects. The Appellants professional competence was found to be outstanding apart from the fact that he topped the EAR 4 `Q Board by scoring 90 % marks.Another reason given by the Fourth Respondent is that the Appellant did not complete the CHEAR `Q Course due to low medical category/ domestic requirements. We perused the record to verify the reasons for the Appellant not taking CHEAR `Q Course. On one occasion he did not opt to take the course due to the serious illness of his wife. He was not sent for the course on four occasions due to his placement in the low medical category. The Appellant cannot be accused of intentionally avoiding the course. In view of the above, the Appellant satisfies the conditions forin para 4 of Navy Order 02/07. The fourth respondent ought to havethe Appellant for 5 years by giving importance to the recommendations of the fifth and third respondents. As mentioned above, the Appellants performance was found to be outstanding.
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A.V. Thomas & Company Ltd Vs. Dy. Commr. of Agrl. Income Tax & Sales Tax. Trivandrum | the goods are specified goods the title passes to the buyer. In the present case as soon as the hammer fell the title in the goods passed to the buyer as the goods were specific goods i.e. goods which were auctioned in full lots and this event took place at Fort Cochin which was in the State of Madras. But in the case of unascertained goods the title in the goods does not pass to the buyer unless and until the goods are ascertained. It was for this reason that a distinction was drawn by the Sales tax Appellate Tribunal between goods which were sold in full lots and those which were sold in portions. In regard to the former it was held that the title passed as soon as the hammer fell but not so in regard to the latter and therefore the sale of "full lots was held to have taken place outside the State of Travancore Cochin and of portions of lots inside that State. The case was consequently remanded to the Sales tax Officer for determining the amount of the tax. 6. The High Court in revision held that the words in Art. 286 (1) (a) "outside the State" do not mean transfer of ownership, according to the Sale of Goods Act but it was lex situs which determines the taxability of the transaction and the correct position is that the ownership in the goods is transferred according to the law of the place where the goods are situate. Therefore the sale in the present case was in the State of Travancore Cochin and there is nothing in the Explanation to Art. 286 (1) (a) which provides to the contrary. 7. It has been found and it has not been disputed that the title to the goods in the present case passed at Fort Cochin. The purchase money was paid there and the purchaser obtained from the auctioneer delivery notes directing the godown keepers at Willingdon Island to deliver the goods and only the actual physical delivery of the goods took place at Willingdon Island. In these circumstances the question is whether the sale was "outside" or "inside sale" as the expressions have been compendiously used in various judgments to indicate sales taking place within a State or without it. The Explanation to Art. 286 (1) (a) which has been set out above explains what a sale outside the State is. According to that Explanation a fiction is created as between two States, one where the goods are delivered for consumption in that State and the other where the title in the goods passes and the former is treated as the situs of the taxable event to the exclusion of the latter. Therefore where the Explanation applies the difficulty about the situs is resolved but in a case like the present one the difficulty still remains because the explanation does not operate in the sense that the rival States claiming to tax the same taxable event are not the States of delivery for consumption in that State and those where the title in the goods passes. In somewhat similar circumstances this court in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, 286, ) held by a majority decision that the opening words of Art: 286 (1) which speak of a sale or purchase taking place and the non-obstante clause in the Explanation which refers to the general law relating to the sale of goods, indicated that it was the "passing of property within the State" that was intended to be fastened on, for the purpose of determining, whether the sale in question was "inside" or "outside" the State and therefore subject to the operation of the "Explanation", that State in which property passed would be the only State which would have the power to levy a tax on the sale. At page 286 it was observed: "The conclusion reached therefore is that where the property in the goods passed within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of Art. 286 (1) (a) unless the Explanation operates". The majority decision in Indian Copper Corporation Ltd. v. State of Bihar (1) concludes the point in favour of the appellant. On the facts of this case it was found by the Sales Tax Appellate Tribunal that in regard to the sales of tea in full lots the property passed at Fort Cochin and this view has not been challenged in this court. Therefore, on the majority decision in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, ) the only State which would have the power to levy a tax on such sales would be the State of Madras and so far as Travancore Cochin was concerned, the sale would be an outside sale.In the present case therefore the sale was an "outside sale" and cannot be said to be an "inside sale" qua Travancore Cochin because the title passed at Fort Cochin which is in the State of Madras. Apart. from that the money was paid there and the delivery order was also received there even though the actual physical delivery of goods was made at a Willingdon Island in the State of Tranvancore Cochin. The fiction created by the Explanation to, Art. 286 (1)(a) is inapplicable because there was no delivery as a direct result of sale for the purpose of consumption in any particular State. There then remains the question of goods which were exported out of India from Willingdon Island. In the case of those goods also it cannot be said that there was a sale inside the State of Travancore Cochin because the same considerations will apply to those sales as to the sales already discussed i.e. goods the title to which passed at Fort Cochin were delivered at Willingdon Island and were delivered for consumption in parts of India other than Travancore Cochin. | 1[ds]Specific goods in s. 2 (14) of the Sale of Goods Act means goodsidentified and agreed upon at the time contract is made. Therefore on the fall of the hammer theoffer is accepted and if the goods are specified goods the title passes to the buyerIn the present case as soon as the hammer fell the title in the goods passed to the buyer as the goods were specific goods i.e. goods which were auctioned in full lots and this event took place at Fort Cochin which was in the State of Madras. But in the case of unascertained goods the title in the goods does not pass to the buyer unless and until the goods are ascertained. It was for this reason that a distinction was drawn by the Sales tax Appellate Tribunal between goods which were sold in full lots and those which were sold in portions. In regard to the former it was held that the title passed as soon as the hammer fell but not so in regard to the latter and therefore the sale of "full lots was held to have taken place outside the State of Travancore Cochin and of portions of lots inside that State. The case was consequently remanded to the Sales tax Officer for determining the amount of the tax6. The High Court in revision held that the words in Art. 286 (1) (a) "outside the State" do not mean transfer of ownership, according to the Sale of Goods Act but it was lex situs which determines the taxability of the transaction and the correct position is that the ownership in the goods is transferred according to the law of the place where the goods are situate. Therefore the sale in the present case was in the State of Travancore Cochin and there is nothing in the Explanation to Art. 286 (1) (a) which provides to the contrary7. It has been found and it has not been disputed that the title to the goods in the present case passed at Fort Cochin. The purchase money was paid there and the purchaser obtained from the auctioneer delivery notes directing the godown keepers at Willingdon Island to deliver the goods and only the actual physical delivery of the goods took place at Willingdon IslandIn somewhat similar circumstances this court in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, 286, ) held by a majority decision that the opening words of Art: 286 (1) which speak of a sale or purchase taking place and the non-obstante clause in the Explanation which refers to the general law relating to the sale of goods, indicated that it was the "passing of property within the State" that was intended to be fastened on, for the purpose of determining, whether the sale in question was "inside" or "outside" the State and therefore subject to the operation of the "Explanation", that State in which property passed would be the only State which would have the power to levy a tax on the sale. At page 286 it was observed: "The conclusion reached therefore is that where the property in the goods passed within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of Art. 286 (1) (a) unless the Explanation operates". The majority decision in Indian Copper Corporation Ltd. v. State of Bihar (1) concludes the point in favour of the appellant. On the facts of this case it was found by the Sales Tax Appellate Tribunal that in regard to the sales of tea in full lots the property passed at Fort Cochin and this view has not been challenged in this court. Therefore, on the majority decision in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, ) the only State which would have the power to levy a tax on such sales would be the State of Madras and so far as Travancore Cochin was concerned, the sale would be an outside sale.In the present case therefore the sale was an "outside sale" and cannot be said to be an "inside sale" qua Travancore Cochin because the title passed at Fort Cochin which is in the State of Madras. Apart. from that the money was paid there and the delivery order was also received there even though the actual physical delivery of goods was made at a Willingdon Island in the State of Tranvancore Cochin. The fiction created by the Explanation to, Art. 286 (1)(a) is inapplicable because there was no delivery as a direct result of sale for the purpose of consumption in any particular State. There then remains the question of goods which were exported out of India from Willingdon Island. In the case of those goods also it cannot be said that there was a sale inside the State of Travancore Cochin because the same considerations will apply to those sales as to the sales already discussed i.e. goods the title to which passed at Fort Cochin were delivered at Willingdon Island and were delivered for consumption in parts of India other than Travancore Cochin. | 1 | 2,072 | 953 | ### 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 goods are specified goods the title passes to the buyer. In the present case as soon as the hammer fell the title in the goods passed to the buyer as the goods were specific goods i.e. goods which were auctioned in full lots and this event took place at Fort Cochin which was in the State of Madras. But in the case of unascertained goods the title in the goods does not pass to the buyer unless and until the goods are ascertained. It was for this reason that a distinction was drawn by the Sales tax Appellate Tribunal between goods which were sold in full lots and those which were sold in portions. In regard to the former it was held that the title passed as soon as the hammer fell but not so in regard to the latter and therefore the sale of "full lots was held to have taken place outside the State of Travancore Cochin and of portions of lots inside that State. The case was consequently remanded to the Sales tax Officer for determining the amount of the tax. 6. The High Court in revision held that the words in Art. 286 (1) (a) "outside the State" do not mean transfer of ownership, according to the Sale of Goods Act but it was lex situs which determines the taxability of the transaction and the correct position is that the ownership in the goods is transferred according to the law of the place where the goods are situate. Therefore the sale in the present case was in the State of Travancore Cochin and there is nothing in the Explanation to Art. 286 (1) (a) which provides to the contrary. 7. It has been found and it has not been disputed that the title to the goods in the present case passed at Fort Cochin. The purchase money was paid there and the purchaser obtained from the auctioneer delivery notes directing the godown keepers at Willingdon Island to deliver the goods and only the actual physical delivery of the goods took place at Willingdon Island. In these circumstances the question is whether the sale was "outside" or "inside sale" as the expressions have been compendiously used in various judgments to indicate sales taking place within a State or without it. The Explanation to Art. 286 (1) (a) which has been set out above explains what a sale outside the State is. According to that Explanation a fiction is created as between two States, one where the goods are delivered for consumption in that State and the other where the title in the goods passes and the former is treated as the situs of the taxable event to the exclusion of the latter. Therefore where the Explanation applies the difficulty about the situs is resolved but in a case like the present one the difficulty still remains because the explanation does not operate in the sense that the rival States claiming to tax the same taxable event are not the States of delivery for consumption in that State and those where the title in the goods passes. In somewhat similar circumstances this court in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, 286, ) held by a majority decision that the opening words of Art: 286 (1) which speak of a sale or purchase taking place and the non-obstante clause in the Explanation which refers to the general law relating to the sale of goods, indicated that it was the "passing of property within the State" that was intended to be fastened on, for the purpose of determining, whether the sale in question was "inside" or "outside" the State and therefore subject to the operation of the "Explanation", that State in which property passed would be the only State which would have the power to levy a tax on the sale. At page 286 it was observed: "The conclusion reached therefore is that where the property in the goods passed within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of Art. 286 (1) (a) unless the Explanation operates". The majority decision in Indian Copper Corporation Ltd. v. State of Bihar (1) concludes the point in favour of the appellant. On the facts of this case it was found by the Sales Tax Appellate Tribunal that in regard to the sales of tea in full lots the property passed at Fort Cochin and this view has not been challenged in this court. Therefore, on the majority decision in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, ) the only State which would have the power to levy a tax on such sales would be the State of Madras and so far as Travancore Cochin was concerned, the sale would be an outside sale.In the present case therefore the sale was an "outside sale" and cannot be said to be an "inside sale" qua Travancore Cochin because the title passed at Fort Cochin which is in the State of Madras. Apart. from that the money was paid there and the delivery order was also received there even though the actual physical delivery of goods was made at a Willingdon Island in the State of Tranvancore Cochin. The fiction created by the Explanation to, Art. 286 (1)(a) is inapplicable because there was no delivery as a direct result of sale for the purpose of consumption in any particular State. There then remains the question of goods which were exported out of India from Willingdon Island. In the case of those goods also it cannot be said that there was a sale inside the State of Travancore Cochin because the same considerations will apply to those sales as to the sales already discussed i.e. goods the title to which passed at Fort Cochin were delivered at Willingdon Island and were delivered for consumption in parts of India other than Travancore Cochin.
### Response:
1
### Explanation:
Specific goods in s. 2 (14) of the Sale of Goods Act means goodsidentified and agreed upon at the time contract is made. Therefore on the fall of the hammer theoffer is accepted and if the goods are specified goods the title passes to the buyerIn the present case as soon as the hammer fell the title in the goods passed to the buyer as the goods were specific goods i.e. goods which were auctioned in full lots and this event took place at Fort Cochin which was in the State of Madras. But in the case of unascertained goods the title in the goods does not pass to the buyer unless and until the goods are ascertained. It was for this reason that a distinction was drawn by the Sales tax Appellate Tribunal between goods which were sold in full lots and those which were sold in portions. In regard to the former it was held that the title passed as soon as the hammer fell but not so in regard to the latter and therefore the sale of "full lots was held to have taken place outside the State of Travancore Cochin and of portions of lots inside that State. The case was consequently remanded to the Sales tax Officer for determining the amount of the tax6. The High Court in revision held that the words in Art. 286 (1) (a) "outside the State" do not mean transfer of ownership, according to the Sale of Goods Act but it was lex situs which determines the taxability of the transaction and the correct position is that the ownership in the goods is transferred according to the law of the place where the goods are situate. Therefore the sale in the present case was in the State of Travancore Cochin and there is nothing in the Explanation to Art. 286 (1) (a) which provides to the contrary7. It has been found and it has not been disputed that the title to the goods in the present case passed at Fort Cochin. The purchase money was paid there and the purchaser obtained from the auctioneer delivery notes directing the godown keepers at Willingdon Island to deliver the goods and only the actual physical delivery of the goods took place at Willingdon IslandIn somewhat similar circumstances this court in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, 286, ) held by a majority decision that the opening words of Art: 286 (1) which speak of a sale or purchase taking place and the non-obstante clause in the Explanation which refers to the general law relating to the sale of goods, indicated that it was the "passing of property within the State" that was intended to be fastened on, for the purpose of determining, whether the sale in question was "inside" or "outside" the State and therefore subject to the operation of the "Explanation", that State in which property passed would be the only State which would have the power to levy a tax on the sale. At page 286 it was observed: "The conclusion reached therefore is that where the property in the goods passed within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of Art. 286 (1) (a) unless the Explanation operates". The majority decision in Indian Copper Corporation Ltd. v. State of Bihar (1) concludes the point in favour of the appellant. On the facts of this case it was found by the Sales Tax Appellate Tribunal that in regard to the sales of tea in full lots the property passed at Fort Cochin and this view has not been challenged in this court. Therefore, on the majority decision in Indian Copper Corporation Ltd. v. State of Bihar ([1961] 2 S.C.R. 276, ) the only State which would have the power to levy a tax on such sales would be the State of Madras and so far as Travancore Cochin was concerned, the sale would be an outside sale.In the present case therefore the sale was an "outside sale" and cannot be said to be an "inside sale" qua Travancore Cochin because the title passed at Fort Cochin which is in the State of Madras. Apart. from that the money was paid there and the delivery order was also received there even though the actual physical delivery of goods was made at a Willingdon Island in the State of Tranvancore Cochin. The fiction created by the Explanation to, Art. 286 (1)(a) is inapplicable because there was no delivery as a direct result of sale for the purpose of consumption in any particular State. There then remains the question of goods which were exported out of India from Willingdon Island. In the case of those goods also it cannot be said that there was a sale inside the State of Travancore Cochin because the same considerations will apply to those sales as to the sales already discussed i.e. goods the title to which passed at Fort Cochin were delivered at Willingdon Island and were delivered for consumption in parts of India other than Travancore Cochin.
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Ahmedabad Municipal Corporation & Others Vs. Ramanlal Govindram etc | 19 (1) (f).19. The High Court also held that the notice embodying the order of eviction must furnish the reasons to the affected person.20. The decision of this Court in Hari Singh v. Military Estate Officer, (1973) 1 SCR 515 = (AIR 1972 SC 2205 ) is that where there is only one procedure for ejectment of persons in public premises there is no vice of discrimination. There is a bar of jurisdiction of courts of law in such cases. It is, therefore, only one procedure for these cases of eviction.21. The majority decision of this Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay, (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) is that where the statute itself covers only a class of cases, the statute will not be bad on that ground. The feature that such cases are chosen by the statute to be tried under the special procedure laid down there will not affect the validity of the statute. The contention that the mere availability of two procedures will vitiate one of them i.e. the special procedure is not supported by reason or authority. In Maganlal Chhagganlals case (supra) this Court held that the fact that the legislature considered that the ordinary procedure is inefficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. The correct law is now laid down in Maganlal Chhagganlals case (supra) and the view of this Court in the Northern India Caterers case (1967)1 SCR 399 ,- (AIR I967 SC 158l)(supra) does not hold the field. In Maganlal Chhagganlals case (supra) it has been held that a statute which deals with premises belonging to the Corporation and the Government and lays down a special speedy procedure in the matter of evicting unauthorised persons occupying them is a sufficient reason to support such special procedure. The policy and the purpose of the Act, make it clear that the legislature intended to make the statute applicable to a special class and provide a speedy method of recovering possession of these properties.22. On the ruling of this Court in Maganlal Chhagganlals case (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) (supra) the conclusion of the High Court that Section 437A,offends Article 14 on the around that there is no clear guidance on the Municipal Commissioner to take proceedings is set aside. It may also be stated here that the respondents because of the decision of this Court in Maganlal Chhagganlals case (supra) did not support the conclusion of the High Court on the infraction of Article 14.23. The conclusion of the High Court that the provision in Section 437 A (I) is unreasonable because the Municipal Commissioner is in substance a party to the dispute is unacceptable. The conferment of power on the Municipal Commissioner as an Administrative Officer to take proceeding for eviction cannot be down as unreasonable on the struck ground that he is a judge in his own cause. He is the highest officer of the Corporation. The Corporation acts through these officers. There is no personal interest of the Municipal Commissioner in evicting these persons. The Corporation represents public interest. The Municipal Commissioner acts in aid of public duty in aid of public interest. The Municipal Commissioner will apply his mind to the facts and circumstances of a given case as to whether there should be an order for eviction. If the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal.24. The final contention on behalf of the respondents is that the provisions contained in Section 437-A of the Act which provide special procedure in respect, of eviction of unauthorised persons imposes unreasonable restrictions on the right of the respondents guaranteed under Article 19 (1) inasmuch as the restrictions contemplated therein by way of procedure for eviction are excessive. Excessiveness is contended to consist in the absence of power of the Municipal Commissioner to summon witnesses as in a civil court and the right of appeal being to the State Government instead of ordinary courts. Counsel on behalf of the respondents said that the two salutary safeguards, namely, providing an appeal to a court of law and conferring power on the Commissioner to summon, witnesses were found in Maganlal Chhagganlals case (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) (supra) and were absent in the present case. It was therefore, said that the present case is distinguishable.25. The provisions in the sent case show that before an order is made against any person under Section 437A (1) the person concerned is to be given a reasonable opportunity to tender an explanation and to produce evidence. The absence of a special provision to compel summoning of witnesses does not make the Section unreasonable. As long as the son to be evicted is given the opportunity to produce evidence, there no element of unreasonableness.26.The fact that an appeal is provided to the State and not to a court of law also does not make the provision unreasonable. In many statutes like the Sea Customs Act, the Mining Act appeals are provided to the State Government. This is because of special character of things forming subject matter of these statutes. The State Government will employ persons who are equipped to deal with such matters. An appeal to the State Government will not indicate unreasonableness. If there is any abuse of justice or miscarriage of justice or violation of principles of natural justice the courts are always open to redress such grievances.27. The orders which were passed gave reason. The orders were not served. That should not happen. That indicates inefficiency. There is no infirmity in the orders. The authorities should serve -orders giving reasons for making the order.28. For these reasons we hold that the provisions contained in Sections 437A, 437D, 437E and 437F are not unconstitutional. | 1[ds]22. On the ruling of this Court in Maganlal Chhagganlals case (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) (supra) the conclusion of the High Court that Section 437A,offends Article 14 on the around that there is no clear guidance on the Municipal Commissioner to take proceedings is set aside. It may also be stated here that the respondents because of the decision of this Court in Maganlal Chhagganlals case (supra) did not support the conclusion of the High Court on the infraction of Article 14.23. The conclusion of the High Court that the provision in Section 437 A (I) is unreasonable because the Municipal Commissioner is in substance a party to the dispute is unacceptable. The conferment of power on the Municipal Commissioner as an Administrative Officer to take proceeding for eviction cannot be down as unreasonable on the struck ground that he is a judge in his own cause. He is the highest officer of the Corporation. The Corporation acts through these officers. There is no personal interest of the Municipal Commissioner in evicting these persons. The Corporation represents public interest. The Municipal Commissioner acts in aid of public duty in aid of public interest. The Municipal Commissioner will apply his mind to the facts and circumstances of a given case as to whether there should be an order for eviction. If the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal.The provisions in the sent case show that before an order is made against any person under Section 437A (1) the person concerned is to be given a reasonable opportunity to tender an explanation and to produce evidence. The absence of a special provision to compel summoning of witnesses does not make the Section unreasonable. As long as the son to be evicted is given the opportunity to produce evidence, there no element of unreasonableness.26.The fact that an appeal is provided to the State and not to a court of law also does not make the provision unreasonable. In many statutes like the Sea Customs Act, the Mining Act appeals are provided to the State Government. This is because of special character of things forming subject matter of these statutes. The State Government will employ persons who are equipped to deal with such matters. An appeal to the State Government will not indicate unreasonableness. If there is any abuse of justice or miscarriage of justice or violation of principles of natural justice the courts are always open to redress such grievances.27. The orders which were passed gave reason. The orders were not served. That should not happen. That indicates inefficiency. There is no infirmity in the orders. The authorities should serve -orders giving reasons for making the order.28. For these reasons we hold that the provisions contained in Sections 437A, 437D, 437E and 437F are not unconstitutional. | 1 | 3,081 | 525 | ### Instruction:
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19 (1) (f).19. The High Court also held that the notice embodying the order of eviction must furnish the reasons to the affected person.20. The decision of this Court in Hari Singh v. Military Estate Officer, (1973) 1 SCR 515 = (AIR 1972 SC 2205 ) is that where there is only one procedure for ejectment of persons in public premises there is no vice of discrimination. There is a bar of jurisdiction of courts of law in such cases. It is, therefore, only one procedure for these cases of eviction.21. The majority decision of this Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay, (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) is that where the statute itself covers only a class of cases, the statute will not be bad on that ground. The feature that such cases are chosen by the statute to be tried under the special procedure laid down there will not affect the validity of the statute. The contention that the mere availability of two procedures will vitiate one of them i.e. the special procedure is not supported by reason or authority. In Maganlal Chhagganlals case (supra) this Court held that the fact that the legislature considered that the ordinary procedure is inefficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special procedure therefor is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. The correct law is now laid down in Maganlal Chhagganlals case (supra) and the view of this Court in the Northern India Caterers case (1967)1 SCR 399 ,- (AIR I967 SC 158l)(supra) does not hold the field. In Maganlal Chhagganlals case (supra) it has been held that a statute which deals with premises belonging to the Corporation and the Government and lays down a special speedy procedure in the matter of evicting unauthorised persons occupying them is a sufficient reason to support such special procedure. The policy and the purpose of the Act, make it clear that the legislature intended to make the statute applicable to a special class and provide a speedy method of recovering possession of these properties.22. On the ruling of this Court in Maganlal Chhagganlals case (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) (supra) the conclusion of the High Court that Section 437A,offends Article 14 on the around that there is no clear guidance on the Municipal Commissioner to take proceedings is set aside. It may also be stated here that the respondents because of the decision of this Court in Maganlal Chhagganlals case (supra) did not support the conclusion of the High Court on the infraction of Article 14.23. The conclusion of the High Court that the provision in Section 437 A (I) is unreasonable because the Municipal Commissioner is in substance a party to the dispute is unacceptable. The conferment of power on the Municipal Commissioner as an Administrative Officer to take proceeding for eviction cannot be down as unreasonable on the struck ground that he is a judge in his own cause. He is the highest officer of the Corporation. The Corporation acts through these officers. There is no personal interest of the Municipal Commissioner in evicting these persons. The Corporation represents public interest. The Municipal Commissioner acts in aid of public duty in aid of public interest. The Municipal Commissioner will apply his mind to the facts and circumstances of a given case as to whether there should be an order for eviction. If the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal.24. The final contention on behalf of the respondents is that the provisions contained in Section 437-A of the Act which provide special procedure in respect, of eviction of unauthorised persons imposes unreasonable restrictions on the right of the respondents guaranteed under Article 19 (1) inasmuch as the restrictions contemplated therein by way of procedure for eviction are excessive. Excessiveness is contended to consist in the absence of power of the Municipal Commissioner to summon witnesses as in a civil court and the right of appeal being to the State Government instead of ordinary courts. Counsel on behalf of the respondents said that the two salutary safeguards, namely, providing an appeal to a court of law and conferring power on the Commissioner to summon, witnesses were found in Maganlal Chhagganlals case (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) (supra) and were absent in the present case. It was therefore, said that the present case is distinguishable.25. The provisions in the sent case show that before an order is made against any person under Section 437A (1) the person concerned is to be given a reasonable opportunity to tender an explanation and to produce evidence. The absence of a special provision to compel summoning of witnesses does not make the Section unreasonable. As long as the son to be evicted is given the opportunity to produce evidence, there no element of unreasonableness.26.The fact that an appeal is provided to the State and not to a court of law also does not make the provision unreasonable. In many statutes like the Sea Customs Act, the Mining Act appeals are provided to the State Government. This is because of special character of things forming subject matter of these statutes. The State Government will employ persons who are equipped to deal with such matters. An appeal to the State Government will not indicate unreasonableness. If there is any abuse of justice or miscarriage of justice or violation of principles of natural justice the courts are always open to redress such grievances.27. The orders which were passed gave reason. The orders were not served. That should not happen. That indicates inefficiency. There is no infirmity in the orders. The authorities should serve -orders giving reasons for making the order.28. For these reasons we hold that the provisions contained in Sections 437A, 437D, 437E and 437F are not unconstitutional.
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22. On the ruling of this Court in Maganlal Chhagganlals case (1974) 2 SCC 402 = (AIR 1974 SC 2009 ) (supra) the conclusion of the High Court that Section 437A,offends Article 14 on the around that there is no clear guidance on the Municipal Commissioner to take proceedings is set aside. It may also be stated here that the respondents because of the decision of this Court in Maganlal Chhagganlals case (supra) did not support the conclusion of the High Court on the infraction of Article 14.23. The conclusion of the High Court that the provision in Section 437 A (I) is unreasonable because the Municipal Commissioner is in substance a party to the dispute is unacceptable. The conferment of power on the Municipal Commissioner as an Administrative Officer to take proceeding for eviction cannot be down as unreasonable on the struck ground that he is a judge in his own cause. He is the highest officer of the Corporation. The Corporation acts through these officers. There is no personal interest of the Municipal Commissioner in evicting these persons. The Corporation represents public interest. The Municipal Commissioner acts in aid of public duty in aid of public interest. The Municipal Commissioner will apply his mind to the facts and circumstances of a given case as to whether there should be an order for eviction. If the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal.The provisions in the sent case show that before an order is made against any person under Section 437A (1) the person concerned is to be given a reasonable opportunity to tender an explanation and to produce evidence. The absence of a special provision to compel summoning of witnesses does not make the Section unreasonable. As long as the son to be evicted is given the opportunity to produce evidence, there no element of unreasonableness.26.The fact that an appeal is provided to the State and not to a court of law also does not make the provision unreasonable. In many statutes like the Sea Customs Act, the Mining Act appeals are provided to the State Government. This is because of special character of things forming subject matter of these statutes. The State Government will employ persons who are equipped to deal with such matters. An appeal to the State Government will not indicate unreasonableness. If there is any abuse of justice or miscarriage of justice or violation of principles of natural justice the courts are always open to redress such grievances.27. The orders which were passed gave reason. The orders were not served. That should not happen. That indicates inefficiency. There is no infirmity in the orders. The authorities should serve -orders giving reasons for making the order.28. For these reasons we hold that the provisions contained in Sections 437A, 437D, 437E and 437F are not unconstitutional.
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M/S. Sathyanarayana Brothers (P) Ltd Vs. Tamil Nadu Water Supply & Drainage Board | handover note just with a view to emphasize the relevance and importance of the said note which is document D-660. A copy of the same has been filed in this Court. In Paragraph 6.1.7 and 6.1.7.1. it is indicated that Department had to carry out the work of trench excavation, the service roads, river, rail and road crossings besides many other things enumerated therein. Para 6.1.10 deals with requirement of foreign exchange and the details thereof. In Paragraph 6.1.10.3 the delay in arrival of the machinery imported due to Indo-Pakistan war is also indicated. Paragraph 6.11 deals with the factors that contributed to delay in execution of the project. Thereunder it is mentioned about the availability of power. Some problem relating to trench excavation by the Board also finds mention in Para 7 onwards. A bare look of some of the parts of the note indicates that it may have some material bearing on the merits relating to the question of delay in execution of the project, and throwing some light on the share of responsibility of the parties to the contract and extent of their responsibility as well. 15. Learned counsel for the appellant has placed reliance upon a decision reported in (1975) 2 SCC 236 - K.P. Poulose vs. State of Kerala and another to indicate that where it is a speaking award and the arbitrator fails to take note of the relevant documents or ignores the same, it vitiates the award. It was observed such documents which were ignored were material documents to arrive at a just and fair decision to resolve the controversy between the parties. Our attention has particularly been drawn to the observations made in Paragraph 4 which reads as under: "We have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ex.P-11 and Ex. P-16 are material documents to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Ex.P-11 and P-16 for the purpose of a just decision. Ex. P-11 dated September 8, 1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by audit in connection with the construction of the reservoirs..." (emphasis supplied by us)Reliance has also been placed upon a decision reported in (2001) 5 SCC 629 - Sikkim Subba Associates vs. State of Sikkim, particularly to the observations made in Paragraph 12 of the decision that an award, ignoring very material and relevant documents throwing light on the controversy to have a just and fair decision would vitiate the award as it amounts to misconduct on the part of the arbitrator. The case of K.P. Poulose (supra) has also been referred to. Yet another decision on the point referred to is reported in (2003 (7) Scale Page 20 - Bharat Cocking Coal Ltd. vs. M/s. Annapurna Construction where also it has been held that passing award ignoring the material document would amount to mis-conduct in law. In such circumstances the matter was remitted to a retired Judge of the Jharkhand High Court instead of to the named arbitrator since only the question of law was involved and the parties had also agreed for the same. 16. In so far the case in hand is concerned, learned counsel appearing for the respondent first made a submission that no application was moved by the appellant before the arbitrator for summoning the document, namely, the handing over note prepared by the Chief Engineer while handing over the charge as Project in-charge to his successor but after verification he conceded that such an application was moved before the Arbitrator but no orders had been passed on it. The learned Single Judge had given it as one of the reasons to hold that it vitiated the award. We again find that before the umpire also effort was made to get the document on record for perusal of the same but the request was not accepted. We find that there is no question of secrecy or confidentiality so far the handing over note of the Chief Engineer is concerned. It is a note prepared by the Chief Engineer of the project in official discharge of his duties. It contains relevant facts and information regarding questions involved in the case. The appreciation of the contents of the note and its effect would of course be a matter to be decided by the appropriate authority/arbitrator/ umpire but its perusal or consideration could not be shut out on the meek ground that the department was not bound by it or on the ground of confidentiality in the times when more stress is rather on transparency. In our view, the learned Single Judge was right in inferring that such an infirmity would vitiate the award. That being the position, in our view the order of the Division Bench, reversing the decision of the Single Judge is not sustainable and the matter may be required to be remitted to be considered in the light of the handing over note of the Chief Engineer in respect whereof an application was moved by the appellant before the arbitrator as well as before the Umpire which remained unattended to by the forum and later did not accede to the request.17. Considering the fact that it is an old matter and it being a speaking award the matter having also been considered by the learned single Judge, it would better serve ends of justice to ensure expeditious disposal of the matter, therefore, the Division Bench of the High Court may consider the matter afresh, taking into account the handing over note of the Chief Engineer of the Project and other relevant documents in respect of which request may have been made but refused. | 1[ds]repel the contention raised on behalf of the appellant pertaining to the jurisdiction of the arbitrators and the umpire to decide theit is mentioned about the availability of power. Some problem relating to trench excavation by the Board also finds mention in Para 7 onwards. A bare look of some of the parts of the note indicates that it may have some material bearing on the merits relating to the question of delay in execution of the project, and throwing some light on the share of responsibility of the parties to the contract and extent of their responsibility as well.The learned Single Judge had given it as one of the reasons to hold that it vitiated the award. We again find that before the umpire also effort was made to get the document on record for perusal of the same but the request was not accepted. We find that there is no question of secrecy or confidentiality so far the handing over note of the Chief Engineer is concerned. It is a note prepared by the Chief Engineer of the project in official discharge of his duties. It contains relevant facts and information regarding questions involved in the case. The appreciation of the contents of the note and its effect would of course be a matter to be decided by the appropriate authority/arbitrator/ umpire but its perusal or consideration could not be shut out on the meek ground that the department was not bound by it or on the ground of confidentiality in the times when more stress is rather on transparency. In our view, the learned Single Judge was right in inferring that such an infirmity would vitiate the award. That being the position, in our view the order of the Division Bench, reversing the decision of the Single Judge is not sustainable and the matter may be required to be remitted to be considered in the light of the handing over note of the Chief Engineer in respect whereof an application was moved by the appellant before the arbitrator as well as before the Umpire which remained unattended to by the forum and later did not accede to the request.17. Considering the fact that it is an old matter and it being a speaking award the matter having also been considered by the learned single Judge, it would better serve ends of justice to ensure expeditious disposal of the matter, therefore, the Division Bench of the High Court may consider the matter afresh, taking into account the handing over note of the Chief Engineer of the Project and other relevant documents in respect of which request may have been made but | 1 | 4,912 | 465 | ### 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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handover note just with a view to emphasize the relevance and importance of the said note which is document D-660. A copy of the same has been filed in this Court. In Paragraph 6.1.7 and 6.1.7.1. it is indicated that Department had to carry out the work of trench excavation, the service roads, river, rail and road crossings besides many other things enumerated therein. Para 6.1.10 deals with requirement of foreign exchange and the details thereof. In Paragraph 6.1.10.3 the delay in arrival of the machinery imported due to Indo-Pakistan war is also indicated. Paragraph 6.11 deals with the factors that contributed to delay in execution of the project. Thereunder it is mentioned about the availability of power. Some problem relating to trench excavation by the Board also finds mention in Para 7 onwards. A bare look of some of the parts of the note indicates that it may have some material bearing on the merits relating to the question of delay in execution of the project, and throwing some light on the share of responsibility of the parties to the contract and extent of their responsibility as well. 15. Learned counsel for the appellant has placed reliance upon a decision reported in (1975) 2 SCC 236 - K.P. Poulose vs. State of Kerala and another to indicate that where it is a speaking award and the arbitrator fails to take note of the relevant documents or ignores the same, it vitiates the award. It was observed such documents which were ignored were material documents to arrive at a just and fair decision to resolve the controversy between the parties. Our attention has particularly been drawn to the observations made in Paragraph 4 which reads as under: "We have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ex.P-11 and Ex. P-16 are material documents to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Ex.P-11 and P-16 for the purpose of a just decision. Ex. P-11 dated September 8, 1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by audit in connection with the construction of the reservoirs..." (emphasis supplied by us)Reliance has also been placed upon a decision reported in (2001) 5 SCC 629 - Sikkim Subba Associates vs. State of Sikkim, particularly to the observations made in Paragraph 12 of the decision that an award, ignoring very material and relevant documents throwing light on the controversy to have a just and fair decision would vitiate the award as it amounts to misconduct on the part of the arbitrator. The case of K.P. Poulose (supra) has also been referred to. Yet another decision on the point referred to is reported in (2003 (7) Scale Page 20 - Bharat Cocking Coal Ltd. vs. M/s. Annapurna Construction where also it has been held that passing award ignoring the material document would amount to mis-conduct in law. In such circumstances the matter was remitted to a retired Judge of the Jharkhand High Court instead of to the named arbitrator since only the question of law was involved and the parties had also agreed for the same. 16. In so far the case in hand is concerned, learned counsel appearing for the respondent first made a submission that no application was moved by the appellant before the arbitrator for summoning the document, namely, the handing over note prepared by the Chief Engineer while handing over the charge as Project in-charge to his successor but after verification he conceded that such an application was moved before the Arbitrator but no orders had been passed on it. The learned Single Judge had given it as one of the reasons to hold that it vitiated the award. We again find that before the umpire also effort was made to get the document on record for perusal of the same but the request was not accepted. We find that there is no question of secrecy or confidentiality so far the handing over note of the Chief Engineer is concerned. It is a note prepared by the Chief Engineer of the project in official discharge of his duties. It contains relevant facts and information regarding questions involved in the case. The appreciation of the contents of the note and its effect would of course be a matter to be decided by the appropriate authority/arbitrator/ umpire but its perusal or consideration could not be shut out on the meek ground that the department was not bound by it or on the ground of confidentiality in the times when more stress is rather on transparency. In our view, the learned Single Judge was right in inferring that such an infirmity would vitiate the award. That being the position, in our view the order of the Division Bench, reversing the decision of the Single Judge is not sustainable and the matter may be required to be remitted to be considered in the light of the handing over note of the Chief Engineer in respect whereof an application was moved by the appellant before the arbitrator as well as before the Umpire which remained unattended to by the forum and later did not accede to the request.17. Considering the fact that it is an old matter and it being a speaking award the matter having also been considered by the learned single Judge, it would better serve ends of justice to ensure expeditious disposal of the matter, therefore, the Division Bench of the High Court may consider the matter afresh, taking into account the handing over note of the Chief Engineer of the Project and other relevant documents in respect of which request may have been made but refused.
### Response:
1
### Explanation:
repel the contention raised on behalf of the appellant pertaining to the jurisdiction of the arbitrators and the umpire to decide theit is mentioned about the availability of power. Some problem relating to trench excavation by the Board also finds mention in Para 7 onwards. A bare look of some of the parts of the note indicates that it may have some material bearing on the merits relating to the question of delay in execution of the project, and throwing some light on the share of responsibility of the parties to the contract and extent of their responsibility as well.The learned Single Judge had given it as one of the reasons to hold that it vitiated the award. We again find that before the umpire also effort was made to get the document on record for perusal of the same but the request was not accepted. We find that there is no question of secrecy or confidentiality so far the handing over note of the Chief Engineer is concerned. It is a note prepared by the Chief Engineer of the project in official discharge of his duties. It contains relevant facts and information regarding questions involved in the case. The appreciation of the contents of the note and its effect would of course be a matter to be decided by the appropriate authority/arbitrator/ umpire but its perusal or consideration could not be shut out on the meek ground that the department was not bound by it or on the ground of confidentiality in the times when more stress is rather on transparency. In our view, the learned Single Judge was right in inferring that such an infirmity would vitiate the award. That being the position, in our view the order of the Division Bench, reversing the decision of the Single Judge is not sustainable and the matter may be required to be remitted to be considered in the light of the handing over note of the Chief Engineer in respect whereof an application was moved by the appellant before the arbitrator as well as before the Umpire which remained unattended to by the forum and later did not accede to the request.17. Considering the fact that it is an old matter and it being a speaking award the matter having also been considered by the learned single Judge, it would better serve ends of justice to ensure expeditious disposal of the matter, therefore, the Division Bench of the High Court may consider the matter afresh, taking into account the handing over note of the Chief Engineer of the Project and other relevant documents in respect of which request may have been made but
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D. Srinivas Vs. SBI Life Insurance Co. Ltd. and Ors | communication was sent on 16.12.2008 regarding refund of the proposal amount as the insurance policy could not be completed pending medical examination and the proposal was rejected. The Appellant submitted a reply dated 25.2.2011 stating that at no point of time any letter from the insurance company was received calling for medical examination nor did they receive any amount under cheque dated 10.2.2008 said to have been issued. Neither the bank nor the insurance company had ever informed the proposer or the Appellant herein about the non-issuance of policy for want of medical certificate though they have alleged that they have intimated the said fact. The letter dated 17.10.2008 was not sent to the Appellant herein. 9. From the scheme it is clear that in the case of joint housing loan the full loan amount will be insured even if the policy is issued in the name of only one loanee. In this case, the insured was D. Venugopal son of the Appellant, whereas the loan is the joint loan in the name of the Appellant, his son-the insured and wife of the Appellant. The insured had signed a declaration which is as under: Good Health Declaration: I declare that I am in sound health, do not have any physical defect/deformity, perform my routine activities independently and, that I have never suffered or have been suffering, or have been hospitalized for any critical illness @ or a condition requiring medical treatment for a critical illness as on date. 10. In cases of loan amount exceeding Rs. 7.5 lacs, the provision in the policy is as under: Where the loan Amount Exceeds Rs. 7.5 Lacs As I am willing to join for life insurance cover from SBI Life Insurance Co. Ltd. subject to my under-going the medical examination and satisfying the health underwriting criteria of the Company, I authorise the Bank to debit my account for the standard gross premium plus any additional premium that may be required by SBI Life based on medical underwriting. I also note that in the event of SBI Life Insurance Co. Ltd. not being in a position to accept my life insurance for any reason whatsoever, the initial premium amount remitted by the Bank would be refunded and credited back to my account. 11. It is clear from the above that the proposer was willing to join the life insurance coverage from the Respondent insurance company subject to his undertaking medical examination and for his willingness he authorized the bank to debit his account for payment of the premium. This clearly implies that medical examination was to take place prior to the premium being debited from the bank account of the proposer. The specific condition in the policy is that in case the loan amount exceeds Rs. 7.5 lacs the medical examination was compulsory. If the medical examination was compulsory for such cases it should have been done along with filing of the proposal form before the payment of the premium. If the proposal was not accepted for any reason the premium would have been credited to the account of the proposer. The premium has been refunded after 23.2.2011. From this, it is clear that the insurance company had not rejected the proposal before 23.2.2011. 12. Our attention has been drawn to the case of LIC v. Raja Vasireddy Komalavalli Kamba and Ors., (1984) 2 SCC 719 , wherein this Court has clearly stated that the acceptance of an insurance contract may not be completed by mere retention of the premium or preparation of the policy document rather the acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance. 13. Although we do not have any quarrel with the proposition laid therein, it should be noted that aforesaid judgments only laid down a flexible formula for the court to see as to whether there was clear indication of acceptance of the insurance. It is to be noted that the impugned majority order merely cites the aforesaid judgment, without appreciating the circumstances which give rise to a very clear presumption of acceptance of the policy by the insurer in this case at hand. The insurance contract being a contract of utmost good faith, is a two-way door. The standards of conduct as expected under the utmost good faith obligation should be met by either party to such contract. 14. From the aforesaid Clause it may be seen that the condition precedent for acceptance of the premium was the medical examination. It would be logical for an underwriter to accept the premium based on the medical examination and not otherwise. Therefore, by the very fact that they accepted the premium waived the condition precedent of medical examination. 15. It is an admitted fact that the premium was paid on 29.09.2008. That it was only in 18.01.2011 that the Respondent insurance company informed the Appellant that the policy was not accepted by them. We are unable to fathom the reason for such excessive delay in informing the Appellant, which cannot be excused. We are of the opinion that the rejection of the policy must be made in a reasonable time so as to be fair and in consonance with the good faith standards. In this case, we cannot hold that such enormous delay was reasonable. Moreover, it is borne from the records that the premium was only re-paid on 24.02.2011, after a delay of more than one year five months. If we consider above aspects, it can be reasonably concluded that the insurer is only trying to get out of the bargain, which they had willfully accepted. From the aforesaid circumstances we can easily conclude that the policy was accepted by the insurer. 16. In the circumstances, there is no reason to believe that there was no complete contract. There is clear presumption of the acceptance of the proposal in favour of the proposer. Therefore, the majority view of the Commission would not sustain. | 1[ds]8. We have carefully considered the submissions of the learned Counsel for the parties. It is not in dispute that the Appellant, his wife and his son D. Venugopal had obtained a housing loan of Rs. 30 lacs from the bank in the month of September, 2008 for the construction of the house. A sum of Rs. 78,150/- was debited from their loan account towards life insurance cover, covering the life of D. Venugopal, who was one of the joint loanees. The proposal form dated 29.09.2008 was also accompanied by good health declaration by the insured. The insurance company received the premium on 13.10.2008. D. Venugopal died on 17.12.2008. This was intimated to the bank on 13.4.2010. A notice dated 14.5.2010 was issued to the bank to settle the loan account. However, the bank did not send any reply to this notice. For the first time on 18.1.2011 the bank sent a reply stating that the insurance company vide reference No. 15365 dated 17.10.2008 had called for medical examination for coverage of life insurance of D. Venugopal in respect of the housing loan in question. It was also informed that a communication was sent on 16.12.2008 regarding refund of the proposal amount as the insurance policy could not be completed pending medical examination and the proposal was rejected. The Appellant submitted a reply dated 25.2.2011 stating that at no point of time any letter from the insurance company was received calling for medical examination nor did they receive any amount under cheque dated 10.2.2008 said to have been issued. Neither the bank nor the insurance company had ever informed the proposer or the Appellant herein about the non-issuance of policy for want of medical certificate though they have alleged that they have intimated the said fact. The letter dated 17.10.2008 was not sent to the Appellant herein9. From the scheme it is clear that in the case of joint housing loan the full loan amount will be insured even if the policy is issued in the name of only one loanee. In this case, the insured was D. Venugopal son of the Appellant, whereas the loan is the joint loan in the name of the Appellant, his son-the insured and wife of the Appellant11. It is clear from the above that the proposer was willing to join the life insurance coverage from the Respondent insurance company subject to his undertaking medical examination and for his willingness he authorized the bank to debit his account for payment of the premium. This clearly implies that medical examination was to take place prior to the premium being debited from the bank account of the proposer. The specific condition in the policy is that in case the loan amount exceeds Rs. 7.5 lacs the medical examination was compulsory. If the medical examination was compulsory for such cases it should have been done along with filing of the proposal form before the payment of the premium. If the proposal was not accepted for any reason the premium would have been credited to the account of the proposer. The premium has been refunded after 23.2.2011. From this, it is clear that the insurance company had not rejected the proposal before 23.2.201113. Although we do not have any quarrel with the proposition laid therein, it should be noted that aforesaid judgments only laid down a flexible formula for the court to see as to whether there was clear indication of acceptance of the insurance. It is to be noted that the impugned majority order merely cites the aforesaid judgment, without appreciating the circumstances which give rise to a very clear presumption of acceptance of the policy by the insurer in this case at hand. The insurance contract being a contract of utmost good faith, is a two-way door. The standards of conduct as expected under the utmost good faith obligation should be met by either party to such contract14. From the aforesaid Clause it may be seen that the condition precedent for acceptance of the premium was the medical examination. It would be logical for an underwriter to accept the premium based on the medical examination and not otherwise. Therefore, by the very fact that they accepted the premium waived the condition precedent of medical examination15. It is an admitted fact that the premium was paid on 29.09.2008. That it was only in 18.01.2011 that the Respondent insurance company informed the Appellant that the policy was not accepted by them. We are unable to fathom the reason for such excessive delay in informing the Appellant, which cannot be excused. We are of the opinion that the rejection of the policy must be made in a reasonable time so as to be fair and in consonance with the good faith standards. In this case, we cannot hold that such enormous delay was reasonable. Moreover, it is borne from the records that the premium was only re-paid on 24.02.2011, after a delay of more than one year five months. If we consider above aspects, it can be reasonably concluded that the insurer is only trying to get out of the bargain, which they had willfully accepted. From the aforesaid circumstances we can easily conclude that the policy was accepted by the insurer16. In the circumstances, there is no reason to believe that there was no complete contract. There is clear presumption of the acceptance of the proposal in favour of the proposer. Therefore, the majority view of the Commission would not sustain. | 1 | 2,105 | 986 | ### 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:
communication was sent on 16.12.2008 regarding refund of the proposal amount as the insurance policy could not be completed pending medical examination and the proposal was rejected. The Appellant submitted a reply dated 25.2.2011 stating that at no point of time any letter from the insurance company was received calling for medical examination nor did they receive any amount under cheque dated 10.2.2008 said to have been issued. Neither the bank nor the insurance company had ever informed the proposer or the Appellant herein about the non-issuance of policy for want of medical certificate though they have alleged that they have intimated the said fact. The letter dated 17.10.2008 was not sent to the Appellant herein. 9. From the scheme it is clear that in the case of joint housing loan the full loan amount will be insured even if the policy is issued in the name of only one loanee. In this case, the insured was D. Venugopal son of the Appellant, whereas the loan is the joint loan in the name of the Appellant, his son-the insured and wife of the Appellant. The insured had signed a declaration which is as under: Good Health Declaration: I declare that I am in sound health, do not have any physical defect/deformity, perform my routine activities independently and, that I have never suffered or have been suffering, or have been hospitalized for any critical illness @ or a condition requiring medical treatment for a critical illness as on date. 10. In cases of loan amount exceeding Rs. 7.5 lacs, the provision in the policy is as under: Where the loan Amount Exceeds Rs. 7.5 Lacs As I am willing to join for life insurance cover from SBI Life Insurance Co. Ltd. subject to my under-going the medical examination and satisfying the health underwriting criteria of the Company, I authorise the Bank to debit my account for the standard gross premium plus any additional premium that may be required by SBI Life based on medical underwriting. I also note that in the event of SBI Life Insurance Co. Ltd. not being in a position to accept my life insurance for any reason whatsoever, the initial premium amount remitted by the Bank would be refunded and credited back to my account. 11. It is clear from the above that the proposer was willing to join the life insurance coverage from the Respondent insurance company subject to his undertaking medical examination and for his willingness he authorized the bank to debit his account for payment of the premium. This clearly implies that medical examination was to take place prior to the premium being debited from the bank account of the proposer. The specific condition in the policy is that in case the loan amount exceeds Rs. 7.5 lacs the medical examination was compulsory. If the medical examination was compulsory for such cases it should have been done along with filing of the proposal form before the payment of the premium. If the proposal was not accepted for any reason the premium would have been credited to the account of the proposer. The premium has been refunded after 23.2.2011. From this, it is clear that the insurance company had not rejected the proposal before 23.2.2011. 12. Our attention has been drawn to the case of LIC v. Raja Vasireddy Komalavalli Kamba and Ors., (1984) 2 SCC 719 , wherein this Court has clearly stated that the acceptance of an insurance contract may not be completed by mere retention of the premium or preparation of the policy document rather the acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance. 13. Although we do not have any quarrel with the proposition laid therein, it should be noted that aforesaid judgments only laid down a flexible formula for the court to see as to whether there was clear indication of acceptance of the insurance. It is to be noted that the impugned majority order merely cites the aforesaid judgment, without appreciating the circumstances which give rise to a very clear presumption of acceptance of the policy by the insurer in this case at hand. The insurance contract being a contract of utmost good faith, is a two-way door. The standards of conduct as expected under the utmost good faith obligation should be met by either party to such contract. 14. From the aforesaid Clause it may be seen that the condition precedent for acceptance of the premium was the medical examination. It would be logical for an underwriter to accept the premium based on the medical examination and not otherwise. Therefore, by the very fact that they accepted the premium waived the condition precedent of medical examination. 15. It is an admitted fact that the premium was paid on 29.09.2008. That it was only in 18.01.2011 that the Respondent insurance company informed the Appellant that the policy was not accepted by them. We are unable to fathom the reason for such excessive delay in informing the Appellant, which cannot be excused. We are of the opinion that the rejection of the policy must be made in a reasonable time so as to be fair and in consonance with the good faith standards. In this case, we cannot hold that such enormous delay was reasonable. Moreover, it is borne from the records that the premium was only re-paid on 24.02.2011, after a delay of more than one year five months. If we consider above aspects, it can be reasonably concluded that the insurer is only trying to get out of the bargain, which they had willfully accepted. From the aforesaid circumstances we can easily conclude that the policy was accepted by the insurer. 16. In the circumstances, there is no reason to believe that there was no complete contract. There is clear presumption of the acceptance of the proposal in favour of the proposer. Therefore, the majority view of the Commission would not sustain.
### Response:
1
### Explanation:
8. We have carefully considered the submissions of the learned Counsel for the parties. It is not in dispute that the Appellant, his wife and his son D. Venugopal had obtained a housing loan of Rs. 30 lacs from the bank in the month of September, 2008 for the construction of the house. A sum of Rs. 78,150/- was debited from their loan account towards life insurance cover, covering the life of D. Venugopal, who was one of the joint loanees. The proposal form dated 29.09.2008 was also accompanied by good health declaration by the insured. The insurance company received the premium on 13.10.2008. D. Venugopal died on 17.12.2008. This was intimated to the bank on 13.4.2010. A notice dated 14.5.2010 was issued to the bank to settle the loan account. However, the bank did not send any reply to this notice. For the first time on 18.1.2011 the bank sent a reply stating that the insurance company vide reference No. 15365 dated 17.10.2008 had called for medical examination for coverage of life insurance of D. Venugopal in respect of the housing loan in question. It was also informed that a communication was sent on 16.12.2008 regarding refund of the proposal amount as the insurance policy could not be completed pending medical examination and the proposal was rejected. The Appellant submitted a reply dated 25.2.2011 stating that at no point of time any letter from the insurance company was received calling for medical examination nor did they receive any amount under cheque dated 10.2.2008 said to have been issued. Neither the bank nor the insurance company had ever informed the proposer or the Appellant herein about the non-issuance of policy for want of medical certificate though they have alleged that they have intimated the said fact. The letter dated 17.10.2008 was not sent to the Appellant herein9. From the scheme it is clear that in the case of joint housing loan the full loan amount will be insured even if the policy is issued in the name of only one loanee. In this case, the insured was D. Venugopal son of the Appellant, whereas the loan is the joint loan in the name of the Appellant, his son-the insured and wife of the Appellant11. It is clear from the above that the proposer was willing to join the life insurance coverage from the Respondent insurance company subject to his undertaking medical examination and for his willingness he authorized the bank to debit his account for payment of the premium. This clearly implies that medical examination was to take place prior to the premium being debited from the bank account of the proposer. The specific condition in the policy is that in case the loan amount exceeds Rs. 7.5 lacs the medical examination was compulsory. If the medical examination was compulsory for such cases it should have been done along with filing of the proposal form before the payment of the premium. If the proposal was not accepted for any reason the premium would have been credited to the account of the proposer. The premium has been refunded after 23.2.2011. From this, it is clear that the insurance company had not rejected the proposal before 23.2.201113. Although we do not have any quarrel with the proposition laid therein, it should be noted that aforesaid judgments only laid down a flexible formula for the court to see as to whether there was clear indication of acceptance of the insurance. It is to be noted that the impugned majority order merely cites the aforesaid judgment, without appreciating the circumstances which give rise to a very clear presumption of acceptance of the policy by the insurer in this case at hand. The insurance contract being a contract of utmost good faith, is a two-way door. The standards of conduct as expected under the utmost good faith obligation should be met by either party to such contract14. From the aforesaid Clause it may be seen that the condition precedent for acceptance of the premium was the medical examination. It would be logical for an underwriter to accept the premium based on the medical examination and not otherwise. Therefore, by the very fact that they accepted the premium waived the condition precedent of medical examination15. It is an admitted fact that the premium was paid on 29.09.2008. That it was only in 18.01.2011 that the Respondent insurance company informed the Appellant that the policy was not accepted by them. We are unable to fathom the reason for such excessive delay in informing the Appellant, which cannot be excused. We are of the opinion that the rejection of the policy must be made in a reasonable time so as to be fair and in consonance with the good faith standards. In this case, we cannot hold that such enormous delay was reasonable. Moreover, it is borne from the records that the premium was only re-paid on 24.02.2011, after a delay of more than one year five months. If we consider above aspects, it can be reasonably concluded that the insurer is only trying to get out of the bargain, which they had willfully accepted. From the aforesaid circumstances we can easily conclude that the policy was accepted by the insurer16. In the circumstances, there is no reason to believe that there was no complete contract. There is clear presumption of the acceptance of the proposal in favour of the proposer. Therefore, the majority view of the Commission would not sustain.
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Venugopal Padayachi (Dead) through L.Rs Vs. V. Pichaikaran (Dead) through L.Rs | 209 of 1989 in the High Court at Madras. The High Court framed the following substantial question of law:Whether the Courts below are right in law in finding adverse possession when the execution of the mortgage deed is not disputed by the Defendant?and, found as under:4. Admittedly, the Plaintiff executed a mortgage on 20.03.1959 in respect of the suit mentioned immovable property for a consideration of Rs. 300/-, which he borrowed from the Defendant. What was all contended by the Plaintiff before both the Courts below was that the Defendant was put in possession in lieu of interest on the mortgage but a reading of Ex. A1 mortgage would indicate that it was a simple mortgage simplicitor and hence the said contention of the Plaintiff/Appellant that the Defendant was put in possession in lieu of interest was rightly rejected. The case of the Defendant is that he purchased the property from the Defendant on 12.11.1960 for a consideration of Rs. 750/- in which the mortgage amount was adjusted. Both the Courts have not looked into the document since it was necessarily a registrable one but remains unregistered and hence the contention of the Defendant that he got the sale of the property cannot be countenanced. But it is an admitted position that the Defendant has been in possession of the property. Before both the Courts below, it was contended by the Defendant that he has also acquired title by prescription. Both the Courts have also accepted the contention though the sale deed filed by the Defendant was not marked and relied on by the parties. Under the stated circumstances, the Defendant could have got into possession on some understanding between the parties. However, from the available evidence, it would be quite clear that what was executed by the Plaintiff in favour of the Defendant was a simple mortgage and the Plaintiff has also filed a suit for redemption.7. The High Court thus arrived at a finding that the Defendant could have got into possession on "some understanding", which was not the case set up by any of the parties. Holding the arrangement under the mortgage to be continuing, it accepted the appeal and passed a decree of redemption holding that the Plaintiff was entitled to deposit the mortgage amount with simple interest within a time frame.8. The original Defendant is presently in appeal by special leave challenging the view so taken by the High Court. It must be mentioned here that during the pendency of this appeal, both the Plaintiff and the Defendant have expired. The heirs of original Plaintiff were brought on record and were served in the matter but they have chosen not to appear in this Court.9. We have heard Mr. V. Prabhakar, learned Counsel for the Appellant/Defendant.10. It was submitted by Mr. Prabhakar that document dated 12.11.1960, being an unregistered one, could certainly not be relied upon to advance the proposition that under the said document the title came to be vested in favour of the Defendant but said document could be relied upon for collateral purpose, in that to support that on and with effect from that date, the Defendant was put in possession. With the assistance of the learned Counsel, we have gone through the document in question and find that the Defendant was put in possession pursuant to said document.11. The question then arises is whether such possession of the Defendant under a document which otherwise is inoperative in law could be held to be adverse to the original Plaintiff. The issue is no longer res integra as the matter has been decided by this Court on few occasions.12. Mr. Prabhakar invited our attention to the decision of this Court in Padma Vithoba Chakkayya v. Mohd. Multani, (1963) 3 SCR 229 ; and, Rukmani Ammal and Anr. v. Jagdesa Gounder, (2006) 1 SCC 65. 13. In Rukmani Ammal (supra), this Court succinctly extracted the law on the subject and observed as follows:18. In K. Gopalan Thanthri v. Ittira Kelan, {AIR 1970 Ker 305 : 1970 KLT 462 (FB), it was held by the Full Bench of the High Court of Kerala that after the sale of the mortgage property in favour of the mortgagee, possession of the mortgagee becomes adverse to tarwad and if a suit for redemption is not filed within the stipulated period of twelve years, it would become barred by limitation.19. In the case in hand, Annamalai was the owner of the property. He mortgaged it to Defendant 1 in 1962 and since then Defendant 1 was in possession of the property as mortgagee. Annamalai then sold part of the property to the Plaintiff in 1964 and the sale deed recited the factum of mortgage by the owner to Defendant 1. In a suit for recovery of money by Defendant 1 against Annamalai, a decree was passed and in execution proceedings, the property was purchased by the mortgagee (Defendant 1) in 1966. The auction was confirmed and sale certificate was issued in favour of Defendant 1 on 5-9-1966. The submission of Defendant 1 is well founded that thereafter she did not continue to remain mortgagee but became absolute owner or claimed to be the absolute owner of the property. As held by this Court in the cases referred to hereinabove, once the mortgagee is claiming to be an absolute owner of the property, his/her status as mortgagee comes to an end and his/her possession becomes adverse to the original owner. Even if such sale is voidable (and not void), it will not alter the legal position and adverse title of the original mortgagee continues and if the period of twelve years expires, he/she becomes owner of the property by adverse possession.14. In the circumstances, the trial Court and the lower Appellate Court were perfectly right and justified in accepting the submission advanced on behalf of the Defendant and in dismissing the suit. The High Court while exercising the Second Appellate Courts jurisdiction ought not to have interfered in the matter. | 1[ds]With the assistance of the learned Counsel, we have gone through the document in question and find that the Defendant was put in possession pursuant to said documentThe issue is no longer res integra as the matter has been decided by this Court on few occasions13. In Rukmani Ammal (supra), this Court succinctly extracted the law on the subject and observed as follows: | 1 | 1,375 | 73 | ### 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:
209 of 1989 in the High Court at Madras. The High Court framed the following substantial question of law:Whether the Courts below are right in law in finding adverse possession when the execution of the mortgage deed is not disputed by the Defendant?and, found as under:4. Admittedly, the Plaintiff executed a mortgage on 20.03.1959 in respect of the suit mentioned immovable property for a consideration of Rs. 300/-, which he borrowed from the Defendant. What was all contended by the Plaintiff before both the Courts below was that the Defendant was put in possession in lieu of interest on the mortgage but a reading of Ex. A1 mortgage would indicate that it was a simple mortgage simplicitor and hence the said contention of the Plaintiff/Appellant that the Defendant was put in possession in lieu of interest was rightly rejected. The case of the Defendant is that he purchased the property from the Defendant on 12.11.1960 for a consideration of Rs. 750/- in which the mortgage amount was adjusted. Both the Courts have not looked into the document since it was necessarily a registrable one but remains unregistered and hence the contention of the Defendant that he got the sale of the property cannot be countenanced. But it is an admitted position that the Defendant has been in possession of the property. Before both the Courts below, it was contended by the Defendant that he has also acquired title by prescription. Both the Courts have also accepted the contention though the sale deed filed by the Defendant was not marked and relied on by the parties. Under the stated circumstances, the Defendant could have got into possession on some understanding between the parties. However, from the available evidence, it would be quite clear that what was executed by the Plaintiff in favour of the Defendant was a simple mortgage and the Plaintiff has also filed a suit for redemption.7. The High Court thus arrived at a finding that the Defendant could have got into possession on "some understanding", which was not the case set up by any of the parties. Holding the arrangement under the mortgage to be continuing, it accepted the appeal and passed a decree of redemption holding that the Plaintiff was entitled to deposit the mortgage amount with simple interest within a time frame.8. The original Defendant is presently in appeal by special leave challenging the view so taken by the High Court. It must be mentioned here that during the pendency of this appeal, both the Plaintiff and the Defendant have expired. The heirs of original Plaintiff were brought on record and were served in the matter but they have chosen not to appear in this Court.9. We have heard Mr. V. Prabhakar, learned Counsel for the Appellant/Defendant.10. It was submitted by Mr. Prabhakar that document dated 12.11.1960, being an unregistered one, could certainly not be relied upon to advance the proposition that under the said document the title came to be vested in favour of the Defendant but said document could be relied upon for collateral purpose, in that to support that on and with effect from that date, the Defendant was put in possession. With the assistance of the learned Counsel, we have gone through the document in question and find that the Defendant was put in possession pursuant to said document.11. The question then arises is whether such possession of the Defendant under a document which otherwise is inoperative in law could be held to be adverse to the original Plaintiff. The issue is no longer res integra as the matter has been decided by this Court on few occasions.12. Mr. Prabhakar invited our attention to the decision of this Court in Padma Vithoba Chakkayya v. Mohd. Multani, (1963) 3 SCR 229 ; and, Rukmani Ammal and Anr. v. Jagdesa Gounder, (2006) 1 SCC 65. 13. In Rukmani Ammal (supra), this Court succinctly extracted the law on the subject and observed as follows:18. In K. Gopalan Thanthri v. Ittira Kelan, {AIR 1970 Ker 305 : 1970 KLT 462 (FB), it was held by the Full Bench of the High Court of Kerala that after the sale of the mortgage property in favour of the mortgagee, possession of the mortgagee becomes adverse to tarwad and if a suit for redemption is not filed within the stipulated period of twelve years, it would become barred by limitation.19. In the case in hand, Annamalai was the owner of the property. He mortgaged it to Defendant 1 in 1962 and since then Defendant 1 was in possession of the property as mortgagee. Annamalai then sold part of the property to the Plaintiff in 1964 and the sale deed recited the factum of mortgage by the owner to Defendant 1. In a suit for recovery of money by Defendant 1 against Annamalai, a decree was passed and in execution proceedings, the property was purchased by the mortgagee (Defendant 1) in 1966. The auction was confirmed and sale certificate was issued in favour of Defendant 1 on 5-9-1966. The submission of Defendant 1 is well founded that thereafter she did not continue to remain mortgagee but became absolute owner or claimed to be the absolute owner of the property. As held by this Court in the cases referred to hereinabove, once the mortgagee is claiming to be an absolute owner of the property, his/her status as mortgagee comes to an end and his/her possession becomes adverse to the original owner. Even if such sale is voidable (and not void), it will not alter the legal position and adverse title of the original mortgagee continues and if the period of twelve years expires, he/she becomes owner of the property by adverse possession.14. In the circumstances, the trial Court and the lower Appellate Court were perfectly right and justified in accepting the submission advanced on behalf of the Defendant and in dismissing the suit. The High Court while exercising the Second Appellate Courts jurisdiction ought not to have interfered in the matter.
### Response:
1
### Explanation:
With the assistance of the learned Counsel, we have gone through the document in question and find that the Defendant was put in possession pursuant to said documentThe issue is no longer res integra as the matter has been decided by this Court on few occasions13. In Rukmani Ammal (supra), this Court succinctly extracted the law on the subject and observed as follows:
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Godavari Marathwada Patbandhare Vikas Mahamandal & Others Vs. The State of Maharashtra & Others | public purpose, namely, Kadva Project, and in continuation of the same public purpose, a Corporation was established by the State being Godavari Marathwada Irrigation Development Corporation by a legislative Act issued by the competent Legislature. Merely because this Corporation was established in the year 1998 and the Award of the Joint District Judge was passed on 7th April 1995 per se cannot be a ground for rejecting the claim of the Corporation of being heard before the SLAO in proceedings under Section 28A or in the Appeals, if preferred against the judgment of the Reference Court. 13. While considering the case for enhancement of compensation under Section 28A of the Act, the SLAO is expected to appreciate the evidence and has to examine whether the lands of the Claimants before him are entitled to similar or identical compensation as awarded to the owners of the land by the Reference Court or any other Court of competent jurisdiction. The Scheme of Section 28A is that the Collector on receipt of an application under sub-section (1) would conduct an enquiry after giving notice to the interested persons and giving them reasonable opportunity of being heard, would make the Award. Proceedings Section 28A are for re-determination of compensation by the SLAO himself. 14. It will be useful to refer to the judgment of the Supreme Court in the case of Abdul Rasak and others vs. Kerala Water Authority and others, (2002) 3 SCC 228 , where the land initially had been acquired for the benefit of Public Health Engineering Department of the State Government of Kerala vide Notification dated 19th July 1981 issued under Section 4 of the Land Acquisition Act, but subsequently, the Kerala Water Authority, a statutory Corporation was established to achieve the said object and for the benefit of that Corporation the Award had been made. The Supreme Court in these circumstances held as under :- ..... For our purpose, it would suffice to note that in the opinion of the Constitution Bench [U.P. Awas Evam Vikas Parishad vs. Gyan Devi, (1995) 2 SCC 326 ], the right conferred on the local authority under Section 50 (2) of the Land Acquisition Act, in the light of the scheme of the Act, carried with it the right to be given adequate notice by the Collector as well as the reference court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up; the local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard; in the event of enhancement of amount of compensation by the reference court if the Government does not file any appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. The Constitution Bench, however, added a rider to its judgment that the law laid down by it would not have the effect of reopening the matters which stand finally concluded. 15. The learned Single Judge appears to have proceeded on the basis that pronouncement of an Award dated 7th April 1995 has to be an end to the proceedings. Firstly, it is not clear from the record whether Appeals against the order and judgment dated 7th April 1995 has been preferred by either parties to the proceedings or not. In any case, the proceedings under Section 28A of the Act are proceedings for re-determination of compensation. Once the Collector makes an Award under Section 28A of the Act, accepting, rejecting or partially accepting the claim of the Claimants, the recourse open to the Claimants again would be by filing application under Section 28A(3) of the Act, which would be governed by Sections 18 to 28 of the Act. In other words, the entire process that will have to be followed after the passing of the Award under Section 28A of the Act will be identical in fact and in law to the remedies available to the Claimants against an original Award made under Section 11 of the Act by the Collector. 16. This can also be examined from another point of view. Under Order 22 Rule 10 of the Civil Procedure Code, a party is entitled to assign its rights in a legal proceedings to a third party during pendency of the original proceedings or even after passing of a decree in appellate proceedings. Of course, this has to be done with the leave of the Court. Once the leave of the Court is granted, the proceedings can be continued by an assignee. The stage of the proceedings is irrelevant in so far as other requirements of these provisions are satisfied and the leave of the Court is obtained. The Corporation has come into existence by virtue of legislative Act and not a contractual act. The Corporation would be entitled to be impleaded into the proceedings from the date of its existence and would be entitled to participate in the proceedings which are instituted thereafter or at the stage where they are pending. In the present case, the Petitions under Section 28A of the Act have been filed in the year 1995 while the Corporation came into existence on 1st October 1998 while the Award has been made before the Collector subsequent to its coming into existence i.e. on 20th September 2003. Thus, we are unable to accept the contention of the Respondents that the Corporation is neither a necessary nor a proper party and cannot participate in the proceedings merely because it came into existence subsequently. As it has taken over all the rights and liabilities of the erstwhile Department and it would be the exclusive responsibility of the Corporation to pay enhanced compensation, it has every right to participate in the proceeding. | 1[ds]6. As is evident from the above recorded findings, it is clear that the genesis of the impugned order is that as the Corporation came into existence subsequent to the passing of the Judgment dated 7th April 1995, it has no locus standi or right to be heard by the SLAO before whom the Petitions were filed under Section 28A of the Act. The original Award was made by the SLAO on 30th November 1987 awarding compensation of Rs.6,500per hectare for acquisition of the lands of the Claimants depending upon the nature and potential of the land. As already referred, this compensation was enhanced by the Reference Court by its judgment dated 7th April 1995 to Rs.24,000per hectare. The present Respondent No.2 (Claimants in all these 18 Writ Petitions) filed their Petitions under Section 28A of the Act between the period 7th August 1995 to 21st September 1995 i.e. after the pronouncement of the Award by the Joint District Judge, Nashik. The SLAO granted relief to the Claimants – land owners and awarded the compensation payable at the rate of Rs.24,000per hectare depending upon the nature and potential of the land. The learned Single Judge has not touched the merits of the case but has only proceeded on the basis that the Corporation was neither a necessary nor a proper party for the reason that they came into existence subsequent to the order passed by the Joint District Judge, Nashik i.e. 7th April 199511. From the above settled principle of law, it is clear that the Corporation or a Company for whose benefit and public purpose the land is acquired by the State would be a proper party entitled to participate in the proceedings at all relevant stages. Determination of compensation is not only confined to the proceedings before the Collector and the Reference Court, but it extends to proceedings before the Appellate Court or any other forum in accordance with the provisions of the Land Acquisition Act provided the issue relates to determination and/or enhancement of compensation. Section 3(b) of the Act explains and defines the word person interested. The said expression is stated to be inclusive of all the persons claiming an interest and compensation to be made on account of acquisition of land under this Act and the person shall be deemed to be interested in the land if he is interested even in an easement affecting the land. Section 9 of the Act also refers shall require all persons interested in the land to appear personally or by agent before the Collector. Section 11 also refers to this expression. In some what distinction to the expression used earlier, Section 18 refers to any person interested thus indicating the wide and liberal meaning that this expression is intended to be given by the Legislature in different provisions of the Land Acquisition ActIn the present case, right from the beginning the land has been acquired for a public purpose, namely, Kadva Project, and in continuation of the same public purpose, a Corporation was established by the State being Godavari Marathwada Irrigation Development Corporation by a legislative Act issued by the competent Legislature. Merely because this Corporation was established in the year 1998 and the Award of the Joint District Judge was passed on 7th April 1995 per se cannot be a ground for rejecting the claim of the Corporation of being heard before the SLAO in proceedings under Section 28A or in the Appeals, if preferred against the judgment of the Reference Court15. The learned Single Judge appears to have proceeded on the basis that pronouncement of an Award dated 7th April 1995 has to be an end to the proceedings. Firstly, it is not clear from the record whether Appeals against the order and judgment dated 7th April 1995 has been preferred by either parties to the proceedings or not. In any case, the proceedings under Section 28A of the Act are proceedings forn of compensation. Once the Collector makes an Award under Section 28A of the Act, accepting, rejecting or partially accepting the claim of the Claimants, the recourse open to the Claimants again would be by filing application under Section 28A(3) of the Act, which would be governed by Sections 18 to 28 of the Act. In other words, the entire process that will have to be followed after the passing of the Award under Section 28A of the Act will be identical in fact and in law to the remedies available to the Claimants against an original Award made under Section 11 of the Act by the CollectorIn the present case, the Petitions under Section 28A of the Act have been filed in the year 1995 while the Corporation came into existence on 1st October 1998 while the Award has been made before the Collector subsequent to its coming into existence i.e. on 20th September 2003. Thus, we are unable to accept the contention of the Respondents that the Corporation is neither a necessary nor a proper party and cannot participate in the proceedings merely because it came into existence subsequently. As it has taken over all the rights and liabilities of the erstwhile Department and it would be the exclusive responsibility of the Corporation to pay enhanced compensation, it has every right to participate in the proceeding. | 1 | 4,059 | 947 | ### 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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public purpose, namely, Kadva Project, and in continuation of the same public purpose, a Corporation was established by the State being Godavari Marathwada Irrigation Development Corporation by a legislative Act issued by the competent Legislature. Merely because this Corporation was established in the year 1998 and the Award of the Joint District Judge was passed on 7th April 1995 per se cannot be a ground for rejecting the claim of the Corporation of being heard before the SLAO in proceedings under Section 28A or in the Appeals, if preferred against the judgment of the Reference Court. 13. While considering the case for enhancement of compensation under Section 28A of the Act, the SLAO is expected to appreciate the evidence and has to examine whether the lands of the Claimants before him are entitled to similar or identical compensation as awarded to the owners of the land by the Reference Court or any other Court of competent jurisdiction. The Scheme of Section 28A is that the Collector on receipt of an application under sub-section (1) would conduct an enquiry after giving notice to the interested persons and giving them reasonable opportunity of being heard, would make the Award. Proceedings Section 28A are for re-determination of compensation by the SLAO himself. 14. It will be useful to refer to the judgment of the Supreme Court in the case of Abdul Rasak and others vs. Kerala Water Authority and others, (2002) 3 SCC 228 , where the land initially had been acquired for the benefit of Public Health Engineering Department of the State Government of Kerala vide Notification dated 19th July 1981 issued under Section 4 of the Land Acquisition Act, but subsequently, the Kerala Water Authority, a statutory Corporation was established to achieve the said object and for the benefit of that Corporation the Award had been made. The Supreme Court in these circumstances held as under :- ..... For our purpose, it would suffice to note that in the opinion of the Constitution Bench [U.P. Awas Evam Vikas Parishad vs. Gyan Devi, (1995) 2 SCC 326 ], the right conferred on the local authority under Section 50 (2) of the Land Acquisition Act, in the light of the scheme of the Act, carried with it the right to be given adequate notice by the Collector as well as the reference court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up; the local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard; in the event of enhancement of amount of compensation by the reference court if the Government does not file any appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. The Constitution Bench, however, added a rider to its judgment that the law laid down by it would not have the effect of reopening the matters which stand finally concluded. 15. The learned Single Judge appears to have proceeded on the basis that pronouncement of an Award dated 7th April 1995 has to be an end to the proceedings. Firstly, it is not clear from the record whether Appeals against the order and judgment dated 7th April 1995 has been preferred by either parties to the proceedings or not. In any case, the proceedings under Section 28A of the Act are proceedings for re-determination of compensation. Once the Collector makes an Award under Section 28A of the Act, accepting, rejecting or partially accepting the claim of the Claimants, the recourse open to the Claimants again would be by filing application under Section 28A(3) of the Act, which would be governed by Sections 18 to 28 of the Act. In other words, the entire process that will have to be followed after the passing of the Award under Section 28A of the Act will be identical in fact and in law to the remedies available to the Claimants against an original Award made under Section 11 of the Act by the Collector. 16. This can also be examined from another point of view. Under Order 22 Rule 10 of the Civil Procedure Code, a party is entitled to assign its rights in a legal proceedings to a third party during pendency of the original proceedings or even after passing of a decree in appellate proceedings. Of course, this has to be done with the leave of the Court. Once the leave of the Court is granted, the proceedings can be continued by an assignee. The stage of the proceedings is irrelevant in so far as other requirements of these provisions are satisfied and the leave of the Court is obtained. The Corporation has come into existence by virtue of legislative Act and not a contractual act. The Corporation would be entitled to be impleaded into the proceedings from the date of its existence and would be entitled to participate in the proceedings which are instituted thereafter or at the stage where they are pending. In the present case, the Petitions under Section 28A of the Act have been filed in the year 1995 while the Corporation came into existence on 1st October 1998 while the Award has been made before the Collector subsequent to its coming into existence i.e. on 20th September 2003. Thus, we are unable to accept the contention of the Respondents that the Corporation is neither a necessary nor a proper party and cannot participate in the proceedings merely because it came into existence subsequently. As it has taken over all the rights and liabilities of the erstwhile Department and it would be the exclusive responsibility of the Corporation to pay enhanced compensation, it has every right to participate in the proceeding.
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1
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6. As is evident from the above recorded findings, it is clear that the genesis of the impugned order is that as the Corporation came into existence subsequent to the passing of the Judgment dated 7th April 1995, it has no locus standi or right to be heard by the SLAO before whom the Petitions were filed under Section 28A of the Act. The original Award was made by the SLAO on 30th November 1987 awarding compensation of Rs.6,500per hectare for acquisition of the lands of the Claimants depending upon the nature and potential of the land. As already referred, this compensation was enhanced by the Reference Court by its judgment dated 7th April 1995 to Rs.24,000per hectare. The present Respondent No.2 (Claimants in all these 18 Writ Petitions) filed their Petitions under Section 28A of the Act between the period 7th August 1995 to 21st September 1995 i.e. after the pronouncement of the Award by the Joint District Judge, Nashik. The SLAO granted relief to the Claimants – land owners and awarded the compensation payable at the rate of Rs.24,000per hectare depending upon the nature and potential of the land. The learned Single Judge has not touched the merits of the case but has only proceeded on the basis that the Corporation was neither a necessary nor a proper party for the reason that they came into existence subsequent to the order passed by the Joint District Judge, Nashik i.e. 7th April 199511. From the above settled principle of law, it is clear that the Corporation or a Company for whose benefit and public purpose the land is acquired by the State would be a proper party entitled to participate in the proceedings at all relevant stages. Determination of compensation is not only confined to the proceedings before the Collector and the Reference Court, but it extends to proceedings before the Appellate Court or any other forum in accordance with the provisions of the Land Acquisition Act provided the issue relates to determination and/or enhancement of compensation. Section 3(b) of the Act explains and defines the word person interested. The said expression is stated to be inclusive of all the persons claiming an interest and compensation to be made on account of acquisition of land under this Act and the person shall be deemed to be interested in the land if he is interested even in an easement affecting the land. Section 9 of the Act also refers shall require all persons interested in the land to appear personally or by agent before the Collector. Section 11 also refers to this expression. In some what distinction to the expression used earlier, Section 18 refers to any person interested thus indicating the wide and liberal meaning that this expression is intended to be given by the Legislature in different provisions of the Land Acquisition ActIn the present case, right from the beginning the land has been acquired for a public purpose, namely, Kadva Project, and in continuation of the same public purpose, a Corporation was established by the State being Godavari Marathwada Irrigation Development Corporation by a legislative Act issued by the competent Legislature. Merely because this Corporation was established in the year 1998 and the Award of the Joint District Judge was passed on 7th April 1995 per se cannot be a ground for rejecting the claim of the Corporation of being heard before the SLAO in proceedings under Section 28A or in the Appeals, if preferred against the judgment of the Reference Court15. The learned Single Judge appears to have proceeded on the basis that pronouncement of an Award dated 7th April 1995 has to be an end to the proceedings. Firstly, it is not clear from the record whether Appeals against the order and judgment dated 7th April 1995 has been preferred by either parties to the proceedings or not. In any case, the proceedings under Section 28A of the Act are proceedings forn of compensation. Once the Collector makes an Award under Section 28A of the Act, accepting, rejecting or partially accepting the claim of the Claimants, the recourse open to the Claimants again would be by filing application under Section 28A(3) of the Act, which would be governed by Sections 18 to 28 of the Act. In other words, the entire process that will have to be followed after the passing of the Award under Section 28A of the Act will be identical in fact and in law to the remedies available to the Claimants against an original Award made under Section 11 of the Act by the CollectorIn the present case, the Petitions under Section 28A of the Act have been filed in the year 1995 while the Corporation came into existence on 1st October 1998 while the Award has been made before the Collector subsequent to its coming into existence i.e. on 20th September 2003. Thus, we are unable to accept the contention of the Respondents that the Corporation is neither a necessary nor a proper party and cannot participate in the proceedings merely because it came into existence subsequently. As it has taken over all the rights and liabilities of the erstwhile Department and it would be the exclusive responsibility of the Corporation to pay enhanced compensation, it has every right to participate in the proceeding.
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Hsbc Bank Omas S.A.O.G Vs. Rockline Construction Company and Others | a conspiracy on part of the petitioner with four other parties who are in the business of buying/selling properties and who are compensated for offering their services to the petitioner in successful bidding and acquiring the property and it is not known as to what is that which the four parties could have done which the petitioner could not have. It can only be seen as a conspiracy which is always hatched in the darkness of secrecy, no direct evidence being available as a proof of the same. It necessarily has thus to be determined on preponderance of probability and all the relevant facts which Section 10 of the Indian Evidence Act would be sufficiently considered as an evidence for the things said or done by a conspirator in regards to common design, as a relevant fact should be looked into. The escrow document refers to a Pay Order of 250 lakhs dated 11 th May 2007 issued by the Oriental Bank of Commerce, JVPD Scheme Branch, Mumbai and by the agreement the petitioner company deposited the said Pay Order with the Advocates and Solicitors to hold and invest it in a scheduled Bank in escrow. Surprising to note that the auction process was over by 4.30 p.m. and if we accept the contention of the learned counsel for the petitioner that after the bidding process was over, the escrow agreement was entered into, which would convey that the Pay Order was obtained from the Oriental Bank of Commerce after 4.30 p.m. We may only take judicial note of the fact that the Banks close its dealing before lunch time and no business is transacted post lunch except effecting the book entries, which is a part of its internal working. The petitioners were able to procure a Pay Order by depositing an amount of 2.50 crores and this all happened pursuant to the agreement being executed, accompanied with a Pay Order. We are surprised at the agile pace at which the things have worked out. We need not say anything more.29. From the record, the case of the petitioner which can be discerned and this is going as per the pleadings of the petitioner company before the Debt Recovery Tribunal in Appeal No.5 of 2001 that Mr.Mahendra Kawad through his agent Mr.Mohinder Pal Singh (one of the parties of the escrow agreement) through Mr.Singh started claiming the share of 76 lakhs payable to Mr.Singh under the agreement and when it was informed that the obligations under the agreement dated 11th May 2007 has not yet been complied with by the four parties, Mr.Mahendra Kawad thought of this innovative and malicious idea to create a nuisance for the appellant who had purchased the property from the Recovery Officer by following the procedure of DRT. This assertion speaks for itself. Worth it to note that Mr.Mahendra Jain did not participate in the re-bidding process on 11th May 2007 on the pretext of certain ambiguity as regards the title of the property. However, no attempt was made to resolve the so-called alleged ambiguity when it was clearly mentioned in the sale notice that some third party is in occupation/possession of the land and the same was sold by the High Court of Bombay. The purpose of the escrow agreement being to compensate the four parties for their consultancy and getting the things done, could have been done prior to 29th March 2007 when Mr.Jain participated in the auction. Mr. Kawad chose not to bid on 11th May 2007 at the fresh auction and then suddenly surfaced alleging fraud by moving an application on 15th November, 2007 praying for setting aside the auction sale. The effect of the escrow agreement in the proceedings can very well be seen to be reflective of pegging down the price of the secured asset and Mahendra Jain himself has appeared before the Recovery Officer and even deposited an amount of 1 crore to prove his bonafides when he made a statement that he has a buyer of 12 crores for the said property. The amount of 1 crore was taken back and the buyer for 12 crore was never brought. The property was therefore required to be sold for an amount of 9.56 crores. The cartel agreement enabled the parties to peg down the prices at the auction and the amount of 2.50 crores would be shared by the four participants for not participating in the bid. We have no hesitation in holding that the escrow arrangement was not for any consultancy being offered but to keep the four parties to the agreement who are in the business of development out of the competition. This clearly falls within the catch situation perceived by the Apex Court in case of Gurmukh Singh (supra). Such an agreement being opposed a public policy and against public interest, is therefore, hit by Section 23 and is void.30. The Recovery Officer in his order dated 22nd October, 2009 found that the Agreement dated 11th May, 2007 was entered into with an object to peg down the price and held that the sale was vitiated and set it aside. In appeal, this Order of Recovery Officer was set aside by the DRT, though holding that there was a cartel agreement but it is not fraudulent and/or in breach of public policy. The DRAT by order dated 7th July, 2014 restored the order of the Recovery Officer permitting the Rockline Construction Company to withdraw the entire amount. As we have noted that the attack mounted about the said order by the Bank is for a limited purpose and so also the challenge of M/s. Lodestar to the impugned order. In the backdrop of the observations made by us, we do not find the view taken by the DRAT to be erroneous, in contrast, we record that the order passed by the DRT, the Fora of original jurisdiction on 20th October, 2010 suffers from egregious flaws and has been rightly set aside by the Appellate Fora. | 0[ds]20. In the backdrop of the aforesaid chain of events, we are called upon to examine the correctness of the impugned order through two writ petitions, Writ Petition No.8572/14 being filed by Rockline Construction Company and Writ Petition No.9078/14 being filed by the Bank. We have extensively heard the learned senior counsel Shri Shroff representing the Petitioner in WP No.8572/14 and learned counsel Shri Samdhani representing the lender Bank in the said Petition and the Petitioner Bank in WPmay accept the contention of the petitioner to that effect since the very first paragraph of the escrow agreement record that M/s.Rockline construction Company have been declared as a successful bidder of the secured property mortgaged with the Bank. Recital No.2 of the said document proceeds to state that four individuals named therein are in the business of buying/selling properties and they have offered their services to M/s.Rockline Construction co, in venturing successful bidding and acquiring the property and securing its demarcation and possession. Recital No.3 convey that M/s. Rockline Constructions have agreed to pay the four parties mentioned in Recital No.2, a fixed sum as brokerage, consultancy fees plus compensation for services subject to the understanding which is drawn in Recital Nos.4 to 8. Going by the first recital that Rockline Construction is declared as a successful bidder in the rebidding which took place on 11th May 2007, stipulation no.4 which set out that M/s.Rockline Construction Co. is depositing with Mulla and Mulla & Craigie Blunt & Caroe, an amount of 2.50 crore by Pay Order to hold and to be invested in the scheduled Bank in escrow and to pay the amount carved out against the name of each of the party against happening of the events being (a) confirmation and completion of sale of the above property in favour of Rockline Construction Co. (b) issuance of sale certificate and (c) demarcation at site and delivery of actual and physical possession. Pertinent to note that the sale certificate came to be issued in favour of the petitioner on 4th June 2007 and on 13th June 2007 possession of the property was handed over to the petitioner and the possession receipt is placed on record. All the three contingencies of confirmation and completion of sale resulted into issuance of sale certificate and possession of the property being handed over did happen within a period of 33 days of executing the escrow agreement. On the three stipulations contemplated in the escrow agreement occurring, it is not the case of the petitioner that the amount came to be disbursed in favour of the four parties. On the other hand, we have noted that it is pleaded by the petitioners that on account of some dispute between the parties, the matter has been referred to an arbitrator and an Award is also passed in the year 2009agreement dated 11th May, 2007 is in the nature of a consultancy agreement. The Agreement is to provide service and it refers to compliance of conditions before the amount deposited with the escrow agent can be released to the four parties nominated in the escrow agreement. All four parties to the escrow agreement were not the bidders at any point of time for the property in question. Argument in the alternative was that assuming but not conceding that the amount kept in escrow is to be treated as payment for preventing the four persons nominated in the escrow agreement, even then the escrow agreement is not hit by the provisions of Section 17 of the Contract Act read with Section 23 of the Contract Act.An agreement which is merely an honest combination between two bidders to purchase the property at an advantageous price and when this agreement was prompted out of necessity, that individual bidders could not afford the bid or do not possess the expertise to enforce the agreement, the agreement may not be hit by Section 23 but where an agreement goes further by resorting to secret artifice for the purpose of defrauding a third person, such an agreement would surely fall within the preface of Section 23 and being fraudulent is void. An agreement between two bidders not to bid against each other at an auction, being not opposed to public policy is not illegal.The position of law which flows from the aforesaid binding precedent neatly answers the question raised before us. An agreement entered into by the parties not to bid against each other is not opposed to public policy and, therefore, it is not void. Further, the agreements which are likely to prevent the property put up for sale in not realizing its fair value and to pin down the value which could be realized at the auction, would certainly be against public good and therefore is void, being opposed to public policy and hit by Section 23 of the Contract Act. Further, an Agreement between the intending bidder, that one should keep away from bidding is neither unlawful nor opposed to public policy. However, an agreement by the prospective bidders at an auction forming a ring to share the profit resulting into the knock out is against public policy. Thus a pure business agreement where two parties join to purchase anything at an auction cannot fall within the mischief of Section 23 if it was a bona fide business arrangement, benefiting the parties involved and not intended to harm the seller, selling the property.The escrow agreement which is a tell-tale of the intention of the parties came to be executed on the very same day i.e. 11th May 2007. The events preceding this Agreement, which emerge from the facts placed before us, bring forth that the Special Court by an Order dated 24th November, 2004 had sold the structure on the property subject to the mortgage of the Bank and the Petitioner Rockline Construction Company was one of the bidders. It can thus be inferred that it had the knowledge of the mortgage and the Recovery Certificates in favour of the Bank. The Petitioner emerged as the highest bidder on the auction of the secured assets held on 29th March, 2007 as well as on 11th May, 2007. The intervening developments, though strage, but are important. On 1st May, 2007, the Recovery Officer received an offer from one Blessing Biotech Limited represented by Mr. Mahendra Jain. Direct bidding took place between the Petitioner and Blessing Biotech Limited represented by Mr. Mahendra Jain. On 11th May, 2007, on re-bidding between the Petitioner and the Blessing Biotech Limited, Rockline emerges as the highest bidder. It is an admitted position that Blessing Biotech Limited was represented through Mr. Mahendra Jain, who participated in the bidding on 29th March, 2007 and in the auction on 11th May, 2007 he was representing Blessing Biotech Pvt. Limited though in personal capacity remained out of the fray. Another character of great significance is Mr. Mohinder Pal Singh, Sole Proprietor of M/s. Preet Enterprises, an Agent of Mr. Mahendra Jain, who was a signatory to the cartel agreement. Mr. Mahendra Jain remained out of the re-bidding which took place on 11th May, 2007 on a flimsy ground. Very surreptitiously on the sale being confirmed in favour of M/s. Rockline Construction Company, he filed an Application approximately after six months for setting aside the sale and raised an alarm about the cartel agreement. The reason being apparent that something went wrong with the cartelescrow agreement creates a doubt as to the exact time of its execution. Subjected to criticism as a conspiracy on part of the petitioner with four other parties who are in the business of buying/selling properties and who are compensated for offering their services to the petitioner in successful bidding and acquiring the property and it is not known as to what is that which the four parties could have done which the petitioner could not have. It can only be seen as a conspiracy which is always hatched in the darkness of secrecy, no direct evidence being available as a proof of the same. It necessarily has thus to be determined on preponderance of probability and all the relevant facts which Section 10 of the Indian Evidence Act would be sufficiently considered as an evidence for the things said or done by a conspirator in regards to common design, as a relevant fact should be looked into. The escrow document refers to a Pay Order of 250 lakhs dated 11 th May 2007 issued by the Oriental Bank of Commerce, JVPD Scheme Branch, Mumbai and by the agreement the petitioner company deposited the said Pay Order with the Advocates and Solicitors to hold and invest it in a scheduled Bank in escrow. Surprising to note that the auction process was over by 4.30 p.m. and if we accept the contention of the learned counsel for the petitioner that after the bidding process was over, the escrow agreement was entered into, which would convey that the Pay Order was obtained from the Oriental Bank of Commerce after 4.30 p.m. We may only take judicial note of the fact that the Banks close its dealing before lunch time and no business is transacted post lunch except effecting the book entries, which is a part of its internal working. The petitioners were able to procure a Pay Order by depositing an amount of 2.50 crores and this all happened pursuant to the agreement being executed, accompanied with a Pay Order. We are surprised at the agile pace at which the things have worked out. We need not say anything more.From the record, the case of the petitioner which can be discerned and this is going as per the pleadings of the petitioner company before the Debt Recovery Tribunal in Appeal No.5 of 2001 that Mr.Mahendra Kawad through his agent Mr.Mohinder Pal Singh (one of the parties of the escrow agreement) through Mr.Singh started claiming the share of 76 lakhs payable to Mr.Singh under the agreement and when it was informed that the obligations under the agreement dated 11th May 2007 has not yet been complied with by the four parties, Mr.Mahendra Kawad thought of this innovative and malicious idea to create a nuisance for the appellant who had purchased the property from the Recovery Officer by following the procedure of DRT. This assertion speaks for itself. Worth it to note that Mr.Mahendra Jain did not participate in the re-bidding process on 11th May 2007 on the pretext of certain ambiguity as regards the title of the property. However, no attempt was made to resolve the so-called alleged ambiguity when it was clearly mentioned in the sale notice that some third party is in occupation/possession of the land and the same was sold by the High Court of Bombay. The purpose of the escrow agreement being to compensate the four parties for their consultancy and getting the things done, could have been done prior to 29th March 2007 when Mr.Jain participated in the auction. Mr. Kawad chose not to bid on 11th May 2007 at the fresh auction and then suddenly surfaced alleging fraud by moving an application on 15th November, 2007 praying for setting aside the auction sale. The effect of the escrow agreement in the proceedings can very well be seen to be reflective of pegging down the price of the secured asset and Mahendra Jain himself has appeared before the Recovery Officer and even deposited an amount of 1 crore to prove his bonafides when he made a statement that he has a buyer of 12 crores for the said property. The amount of 1 crore was taken back and the buyer for 12 crore was never brought. The property was therefore required to be sold for an amount of 9.56 crores. The cartel agreement enabled the parties to peg down the prices at the auction and the amount of 2.50 crores would be shared by the four participants for not participating in the bid. We have no hesitation in holding that the escrow arrangement was not for any consultancy being offered but to keep the four parties to the agreement who are in the business of development out of the competition. This clearly falls within the catch situation perceived by the Apex Court in case of Gurmukh Singh (supra). Such an agreement being opposed a public policy and against public interest, is therefore, hit by Section 23 and is void.The Recovery Officer in his order dated 22nd October, 2009 found that the Agreement dated 11th May, 2007 was entered into with an object to peg down the price and held that the sale was vitiated and set it aside. In appeal, this Order of Recovery Officer was set aside by the DRT, though holding that there was a cartel agreement but it is not fraudulent and/or in breach of public policy. The DRAT by order dated 7th July, 2014 restored the order of the Recovery Officer permitting the Rockline Construction Company to withdraw the entire amount. As we have noted that the attack mounted about the said order by the Bank is for a limited purpose and so also the challenge of M/s. Lodestar to the impugned order. In the backdrop of the observations made by us, we do not find the view taken by the DRAT to be erroneous, in contrast, we record that the order passed by the DRT, the Fora of original jurisdiction on 20th October, 2010 suffers from egregious flaws and has been rightly set aside by the Appellate Fora.Section 23 of the Indian Contract Act, 1872 adumbrates that the consideration or object of an Agreement is lawful unless it is forbidden by law or is of such nature that if permitted, it would defeat the provisions of any law or is fraudulent or involves or implies injury to a person or property of another or when the Courts regard it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful. The three well settled principles by the application of which the enforceability of a contract can be determined are viz. a contract is void if its purpose is to commit an illegal act; a contract which is expressly or impliedly prohibited by law and the contract which cannot be performed without disobedience to law. If the consideration or object of an agreement is opposed to public policy, the agreement becomes invalid. In Halsbury Laws of England, 4th Edition, Vol.9 in para 392, the principle is stated as Any agreement which tends to be injurious to public or against the public good is invalidated on the grounds of public policy. The question whether a particular agreement is contrary to public policy is a question of law to be determined like any other question by proper application of prior decisions. | 0 | 10,031 | 2,629 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
a conspiracy on part of the petitioner with four other parties who are in the business of buying/selling properties and who are compensated for offering their services to the petitioner in successful bidding and acquiring the property and it is not known as to what is that which the four parties could have done which the petitioner could not have. It can only be seen as a conspiracy which is always hatched in the darkness of secrecy, no direct evidence being available as a proof of the same. It necessarily has thus to be determined on preponderance of probability and all the relevant facts which Section 10 of the Indian Evidence Act would be sufficiently considered as an evidence for the things said or done by a conspirator in regards to common design, as a relevant fact should be looked into. The escrow document refers to a Pay Order of 250 lakhs dated 11 th May 2007 issued by the Oriental Bank of Commerce, JVPD Scheme Branch, Mumbai and by the agreement the petitioner company deposited the said Pay Order with the Advocates and Solicitors to hold and invest it in a scheduled Bank in escrow. Surprising to note that the auction process was over by 4.30 p.m. and if we accept the contention of the learned counsel for the petitioner that after the bidding process was over, the escrow agreement was entered into, which would convey that the Pay Order was obtained from the Oriental Bank of Commerce after 4.30 p.m. We may only take judicial note of the fact that the Banks close its dealing before lunch time and no business is transacted post lunch except effecting the book entries, which is a part of its internal working. The petitioners were able to procure a Pay Order by depositing an amount of 2.50 crores and this all happened pursuant to the agreement being executed, accompanied with a Pay Order. We are surprised at the agile pace at which the things have worked out. We need not say anything more.29. From the record, the case of the petitioner which can be discerned and this is going as per the pleadings of the petitioner company before the Debt Recovery Tribunal in Appeal No.5 of 2001 that Mr.Mahendra Kawad through his agent Mr.Mohinder Pal Singh (one of the parties of the escrow agreement) through Mr.Singh started claiming the share of 76 lakhs payable to Mr.Singh under the agreement and when it was informed that the obligations under the agreement dated 11th May 2007 has not yet been complied with by the four parties, Mr.Mahendra Kawad thought of this innovative and malicious idea to create a nuisance for the appellant who had purchased the property from the Recovery Officer by following the procedure of DRT. This assertion speaks for itself. Worth it to note that Mr.Mahendra Jain did not participate in the re-bidding process on 11th May 2007 on the pretext of certain ambiguity as regards the title of the property. However, no attempt was made to resolve the so-called alleged ambiguity when it was clearly mentioned in the sale notice that some third party is in occupation/possession of the land and the same was sold by the High Court of Bombay. The purpose of the escrow agreement being to compensate the four parties for their consultancy and getting the things done, could have been done prior to 29th March 2007 when Mr.Jain participated in the auction. Mr. Kawad chose not to bid on 11th May 2007 at the fresh auction and then suddenly surfaced alleging fraud by moving an application on 15th November, 2007 praying for setting aside the auction sale. The effect of the escrow agreement in the proceedings can very well be seen to be reflective of pegging down the price of the secured asset and Mahendra Jain himself has appeared before the Recovery Officer and even deposited an amount of 1 crore to prove his bonafides when he made a statement that he has a buyer of 12 crores for the said property. The amount of 1 crore was taken back and the buyer for 12 crore was never brought. The property was therefore required to be sold for an amount of 9.56 crores. The cartel agreement enabled the parties to peg down the prices at the auction and the amount of 2.50 crores would be shared by the four participants for not participating in the bid. We have no hesitation in holding that the escrow arrangement was not for any consultancy being offered but to keep the four parties to the agreement who are in the business of development out of the competition. This clearly falls within the catch situation perceived by the Apex Court in case of Gurmukh Singh (supra). Such an agreement being opposed a public policy and against public interest, is therefore, hit by Section 23 and is void.30. The Recovery Officer in his order dated 22nd October, 2009 found that the Agreement dated 11th May, 2007 was entered into with an object to peg down the price and held that the sale was vitiated and set it aside. In appeal, this Order of Recovery Officer was set aside by the DRT, though holding that there was a cartel agreement but it is not fraudulent and/or in breach of public policy. The DRAT by order dated 7th July, 2014 restored the order of the Recovery Officer permitting the Rockline Construction Company to withdraw the entire amount. As we have noted that the attack mounted about the said order by the Bank is for a limited purpose and so also the challenge of M/s. Lodestar to the impugned order. In the backdrop of the observations made by us, we do not find the view taken by the DRAT to be erroneous, in contrast, we record that the order passed by the DRT, the Fora of original jurisdiction on 20th October, 2010 suffers from egregious flaws and has been rightly set aside by the Appellate Fora.
### Response:
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### Explanation:
bidding process was over, the escrow agreement was entered into, which would convey that the Pay Order was obtained from the Oriental Bank of Commerce after 4.30 p.m. We may only take judicial note of the fact that the Banks close its dealing before lunch time and no business is transacted post lunch except effecting the book entries, which is a part of its internal working. The petitioners were able to procure a Pay Order by depositing an amount of 2.50 crores and this all happened pursuant to the agreement being executed, accompanied with a Pay Order. We are surprised at the agile pace at which the things have worked out. We need not say anything more.From the record, the case of the petitioner which can be discerned and this is going as per the pleadings of the petitioner company before the Debt Recovery Tribunal in Appeal No.5 of 2001 that Mr.Mahendra Kawad through his agent Mr.Mohinder Pal Singh (one of the parties of the escrow agreement) through Mr.Singh started claiming the share of 76 lakhs payable to Mr.Singh under the agreement and when it was informed that the obligations under the agreement dated 11th May 2007 has not yet been complied with by the four parties, Mr.Mahendra Kawad thought of this innovative and malicious idea to create a nuisance for the appellant who had purchased the property from the Recovery Officer by following the procedure of DRT. This assertion speaks for itself. Worth it to note that Mr.Mahendra Jain did not participate in the re-bidding process on 11th May 2007 on the pretext of certain ambiguity as regards the title of the property. However, no attempt was made to resolve the so-called alleged ambiguity when it was clearly mentioned in the sale notice that some third party is in occupation/possession of the land and the same was sold by the High Court of Bombay. The purpose of the escrow agreement being to compensate the four parties for their consultancy and getting the things done, could have been done prior to 29th March 2007 when Mr.Jain participated in the auction. Mr. Kawad chose not to bid on 11th May 2007 at the fresh auction and then suddenly surfaced alleging fraud by moving an application on 15th November, 2007 praying for setting aside the auction sale. The effect of the escrow agreement in the proceedings can very well be seen to be reflective of pegging down the price of the secured asset and Mahendra Jain himself has appeared before the Recovery Officer and even deposited an amount of 1 crore to prove his bonafides when he made a statement that he has a buyer of 12 crores for the said property. The amount of 1 crore was taken back and the buyer for 12 crore was never brought. The property was therefore required to be sold for an amount of 9.56 crores. The cartel agreement enabled the parties to peg down the prices at the auction and the amount of 2.50 crores would be shared by the four participants for not participating in the bid. We have no hesitation in holding that the escrow arrangement was not for any consultancy being offered but to keep the four parties to the agreement who are in the business of development out of the competition. This clearly falls within the catch situation perceived by the Apex Court in case of Gurmukh Singh (supra). Such an agreement being opposed a public policy and against public interest, is therefore, hit by Section 23 and is void.The Recovery Officer in his order dated 22nd October, 2009 found that the Agreement dated 11th May, 2007 was entered into with an object to peg down the price and held that the sale was vitiated and set it aside. In appeal, this Order of Recovery Officer was set aside by the DRT, though holding that there was a cartel agreement but it is not fraudulent and/or in breach of public policy. The DRAT by order dated 7th July, 2014 restored the order of the Recovery Officer permitting the Rockline Construction Company to withdraw the entire amount. As we have noted that the attack mounted about the said order by the Bank is for a limited purpose and so also the challenge of M/s. Lodestar to the impugned order. In the backdrop of the observations made by us, we do not find the view taken by the DRAT to be erroneous, in contrast, we record that the order passed by the DRT, the Fora of original jurisdiction on 20th October, 2010 suffers from egregious flaws and has been rightly set aside by the Appellate Fora.Section 23 of the Indian Contract Act, 1872 adumbrates that the consideration or object of an Agreement is lawful unless it is forbidden by law or is of such nature that if permitted, it would defeat the provisions of any law or is fraudulent or involves or implies injury to a person or property of another or when the Courts regard it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful. The three well settled principles by the application of which the enforceability of a contract can be determined are viz. a contract is void if its purpose is to commit an illegal act; a contract which is expressly or impliedly prohibited by law and the contract which cannot be performed without disobedience to law. If the consideration or object of an agreement is opposed to public policy, the agreement becomes invalid. In Halsbury Laws of England, 4th Edition, Vol.9 in para 392, the principle is stated as Any agreement which tends to be injurious to public or against the public good is invalidated on the grounds of public policy. The question whether a particular agreement is contrary to public policy is a question of law to be determined like any other question by proper application of prior decisions.
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Mr.Seetaram S/O Ganpat Randale Vs. Oil and Natural Gas Commission of (India) & Others | the said Mineral Exploration Corporation Limited was on the terms and conditions as contained in the letter dated 30-12-1975 issued by the said Corporation. The petitioner thereafter applied to the Hindustan Antibiotics Ltd. for the post of Assistant Marketing Officer (Accounts) vide his application dated 09-06-1978. The petitioner was interviewed for the said post by the Selection Committee on 09-11-1978 and vide letter dated 06-12-1978, the said Hindustan Antibiotics Ltd., offered the post of Assistant Marketing Officer (Accounts) to the petitioner. 3. The petitioner accepted the said appointment, the terms and conditions of which were mentioned in the annexure to the said letter dated 06-12-1978. Contemporaneously, it appears that the petitioner tendered his resignation from the said Mineral Exploration Corporation Limited, which was accepted by the said Corporation vide order dated January, 1979. The petitioner was in terms of the said appointment order was appointed on probation for a period of 12 months from 16-01-1979. Thereafter, it appears that the petitioner applied for the post of Assistant Manager (Finance) in the Maharashtra Antibiotics & Pharmaceuticals Ltd. The petitioner was interviewed for the said post by the selection committee on 22-09-1980 and by a letter dated 31-05-1981, the petitioner was appointed as Assistant Manager (Finance) in the said company on the terms and conditions mentioned in the said letter dated 31-05-1981. Thereafter, the petitioner tendered his resignation from the said Maharashtra Antibiotics and Phatmaceuticals Ltd., on 30-01-1984, for which a certificate was issued by the said Government Company, wherein it has been mentioned that the petitioner has left its services on his own.4. The petitioner thereafter, applied to the respondent No.1 for the post of Finance & Accounts Officer, for which he was interviewed on 20-07-1983 and the petitioner was given appointment vide Memorandum dated 15-09-1983. The terms and conditions of the appointment of the petitioner were mentioned in Annexure I to the said memorandum dated 15-09-1983. The petitioner accordingly joined the services of respondent No.1 on or about 01-02-1984. It appears from the record that the petitioner was promoted on 01-01-1989 to the next higher post as per his eligibility. The said promotion was granted to the petitioner on the premise that the petitioner completed four years of qualifying service on 01-01-1989, as the date to be reckoned for computing the said period of 4 years was 01-01-1985. 5. The petitioner vide prayer clauses (i) and (ii) of the petition, seeks promotion from an anterior date i.e. from 01-01-1988 on the basis that the petitioner was required to report for duties on or before 15-10-1983. However, infact, the petitioner has joined the duties with the respondent No.1 only on 01-02-1984. This was in view of the fact that the petitioners erstwhile employer Maharashtra Antibiotics & Pharmaceuticals Ltd., had sought an extension of 15 days in view of the work which the petitioner had to complete before being relieved by the said company. 6. The petitioner is claiming rationalization also on the ground that the petitioner was entitled to join duties within a period of 45 days. In so far as the said relief is concerned, it would be pertinent to note that the petitioner accepted promotion granted to him on 01-01-1989 without demur and has filed the instant petition in the year 2002 i.e. after a period of 12 years of his promotion. It is also pertinent to note that the petitioner was relieved on 15-01-1984 for which a certificate has been issued by the said company. Thereafter, the petitioner has continued for 15 days with the said company to finish uncompleted work. The petitioner having joined the respondent No.1 only on 01-02-1984, the respondents were therefore, entitled to compute four years period from 01-01-1985 as per rules. Therefore, on both the counts i.e. on the ground of delay in approaching this Court, as also on the ground that the promotion granted to the petitioner by reckoning qualifying period of four years from 01-01-1985, which was in terms of the rules applicable, we do not find any illegality in the said action of the respondent No.1 and resultantly, the relief sought by the petitioner in terms of prayer clause (i) and (ii) of the petition cannot be granted.7. So far as prayer clause (iii) is concerned, the respondent No.1 is a Government Company, which was established under Statute. The respondent No.1 has its own service regulations for its employees. The petitioner seeks to rely upon Pension Scheme known as Employees Pension Scheme, 1995. The learned counsel for respondent No.1 states that the said scheme is not applicable to the respondent No.1 and in fact, respondent No.1 does not have any pension scheme, but has a contributory scheme known as Post Retirement and death in Service Benefit Scheme (PRBS). It is submitted on behalf of respondent No.1 that the petitioner on his retirement, has been given all the retiral benefits under the said scheme, which the petitioner has availed of. 8. In the light of the said factual position, the prayer clause (iii), in fact cannot be countenanced. It would be also pertinent to note that benefit of the past service of the petitioner cannot be granted to him in as much as the petitioner has joined the various Corporations/Government Companies on his own accord to further his prospects and it is not that the petitioner was sent on deputation or that his services was sought to be availed of by any other Corporation for its benefit. In such circumstances, benefit of the previous service cannot be granted to the petitioner and the same therefore, cannot be taken into consideration for computation of any relief/benefit qua the respondent No. 1. The appointment with the respondent No.1 was subject to the terms and conditions mentioned in the appointment letter issued to the petitioner. The learned counsel for the petitioner has not brought to our notice any policy of the Central Government applicable to the respondent No.1, by virtue of which the past services rendered by the petitioner can be taken into consideration. | 0[ds]8. In the light of the said factual position, the prayer clause (iii), in fact cannot be countenanced. It would be also pertinent to note that benefit of the past service of the petitioner cannot be granted to him in as much as the petitioner has joined the various Corporations/Government Companies on his own accord to further his prospects and it is not that the petitioner was sent on deputation or that his services was sought to be availed of by any other Corporation for its benefit. In such circumstances, benefit of the previous service cannot be granted to the petitioner and the same therefore, cannot be taken into consideration for computation of any relief/benefit qua the respondent No. 1. The appointment with the respondent No.1 was subject to the terms and conditions mentioned in the appointment letter issued to the petitioner. The learned counsel for the petitioner has not brought to our notice any policy of the Central Government applicable to the respondent No.1, by virtue of which the past services rendered by the petitioner can be taken into consideration. | 0 | 1,363 | 203 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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the said Mineral Exploration Corporation Limited was on the terms and conditions as contained in the letter dated 30-12-1975 issued by the said Corporation. The petitioner thereafter applied to the Hindustan Antibiotics Ltd. for the post of Assistant Marketing Officer (Accounts) vide his application dated 09-06-1978. The petitioner was interviewed for the said post by the Selection Committee on 09-11-1978 and vide letter dated 06-12-1978, the said Hindustan Antibiotics Ltd., offered the post of Assistant Marketing Officer (Accounts) to the petitioner. 3. The petitioner accepted the said appointment, the terms and conditions of which were mentioned in the annexure to the said letter dated 06-12-1978. Contemporaneously, it appears that the petitioner tendered his resignation from the said Mineral Exploration Corporation Limited, which was accepted by the said Corporation vide order dated January, 1979. The petitioner was in terms of the said appointment order was appointed on probation for a period of 12 months from 16-01-1979. Thereafter, it appears that the petitioner applied for the post of Assistant Manager (Finance) in the Maharashtra Antibiotics & Pharmaceuticals Ltd. The petitioner was interviewed for the said post by the selection committee on 22-09-1980 and by a letter dated 31-05-1981, the petitioner was appointed as Assistant Manager (Finance) in the said company on the terms and conditions mentioned in the said letter dated 31-05-1981. Thereafter, the petitioner tendered his resignation from the said Maharashtra Antibiotics and Phatmaceuticals Ltd., on 30-01-1984, for which a certificate was issued by the said Government Company, wherein it has been mentioned that the petitioner has left its services on his own.4. The petitioner thereafter, applied to the respondent No.1 for the post of Finance & Accounts Officer, for which he was interviewed on 20-07-1983 and the petitioner was given appointment vide Memorandum dated 15-09-1983. The terms and conditions of the appointment of the petitioner were mentioned in Annexure I to the said memorandum dated 15-09-1983. The petitioner accordingly joined the services of respondent No.1 on or about 01-02-1984. It appears from the record that the petitioner was promoted on 01-01-1989 to the next higher post as per his eligibility. The said promotion was granted to the petitioner on the premise that the petitioner completed four years of qualifying service on 01-01-1989, as the date to be reckoned for computing the said period of 4 years was 01-01-1985. 5. The petitioner vide prayer clauses (i) and (ii) of the petition, seeks promotion from an anterior date i.e. from 01-01-1988 on the basis that the petitioner was required to report for duties on or before 15-10-1983. However, infact, the petitioner has joined the duties with the respondent No.1 only on 01-02-1984. This was in view of the fact that the petitioners erstwhile employer Maharashtra Antibiotics & Pharmaceuticals Ltd., had sought an extension of 15 days in view of the work which the petitioner had to complete before being relieved by the said company. 6. The petitioner is claiming rationalization also on the ground that the petitioner was entitled to join duties within a period of 45 days. In so far as the said relief is concerned, it would be pertinent to note that the petitioner accepted promotion granted to him on 01-01-1989 without demur and has filed the instant petition in the year 2002 i.e. after a period of 12 years of his promotion. It is also pertinent to note that the petitioner was relieved on 15-01-1984 for which a certificate has been issued by the said company. Thereafter, the petitioner has continued for 15 days with the said company to finish uncompleted work. The petitioner having joined the respondent No.1 only on 01-02-1984, the respondents were therefore, entitled to compute four years period from 01-01-1985 as per rules. Therefore, on both the counts i.e. on the ground of delay in approaching this Court, as also on the ground that the promotion granted to the petitioner by reckoning qualifying period of four years from 01-01-1985, which was in terms of the rules applicable, we do not find any illegality in the said action of the respondent No.1 and resultantly, the relief sought by the petitioner in terms of prayer clause (i) and (ii) of the petition cannot be granted.7. So far as prayer clause (iii) is concerned, the respondent No.1 is a Government Company, which was established under Statute. The respondent No.1 has its own service regulations for its employees. The petitioner seeks to rely upon Pension Scheme known as Employees Pension Scheme, 1995. The learned counsel for respondent No.1 states that the said scheme is not applicable to the respondent No.1 and in fact, respondent No.1 does not have any pension scheme, but has a contributory scheme known as Post Retirement and death in Service Benefit Scheme (PRBS). It is submitted on behalf of respondent No.1 that the petitioner on his retirement, has been given all the retiral benefits under the said scheme, which the petitioner has availed of. 8. In the light of the said factual position, the prayer clause (iii), in fact cannot be countenanced. It would be also pertinent to note that benefit of the past service of the petitioner cannot be granted to him in as much as the petitioner has joined the various Corporations/Government Companies on his own accord to further his prospects and it is not that the petitioner was sent on deputation or that his services was sought to be availed of by any other Corporation for its benefit. In such circumstances, benefit of the previous service cannot be granted to the petitioner and the same therefore, cannot be taken into consideration for computation of any relief/benefit qua the respondent No. 1. The appointment with the respondent No.1 was subject to the terms and conditions mentioned in the appointment letter issued to the petitioner. The learned counsel for the petitioner has not brought to our notice any policy of the Central Government applicable to the respondent No.1, by virtue of which the past services rendered by the petitioner can be taken into consideration.
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0
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8. In the light of the said factual position, the prayer clause (iii), in fact cannot be countenanced. It would be also pertinent to note that benefit of the past service of the petitioner cannot be granted to him in as much as the petitioner has joined the various Corporations/Government Companies on his own accord to further his prospects and it is not that the petitioner was sent on deputation or that his services was sought to be availed of by any other Corporation for its benefit. In such circumstances, benefit of the previous service cannot be granted to the petitioner and the same therefore, cannot be taken into consideration for computation of any relief/benefit qua the respondent No. 1. The appointment with the respondent No.1 was subject to the terms and conditions mentioned in the appointment letter issued to the petitioner. The learned counsel for the petitioner has not brought to our notice any policy of the Central Government applicable to the respondent No.1, by virtue of which the past services rendered by the petitioner can be taken into consideration.
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PATEL ENGINEERING LTD. Vs. NORTH EASTERN ELECTRIC POWER CORPORATION LTD. (NEEPCO) | 3.4 of the BoQ are applicable. The provisional payment was an interim arrangement and was preceded by meetings dated 07.12.2012 and 08.12.2012 wherein it was specifically agreed between the parties that HoP, NEEPCO would take steps for referring the dispute to arbitration and that till the arbitral award, the payment would be made as per the prevailing provisional rate without any escalation and that final rate payable for transportation of sand and boulder shall be done on implementation of the arbitral award. As such the fact that provisional payment was made by deducting initial lead of 3.0 km was an irrelevant fact for deciding the issue. The findings of the learned Arbitrator having been arrived at by taking into account irrelevant factors and by ignoring vital clauses, the same suffers from vice of irrationality and perversity. It must be borne in mind that the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation. The findings of the learned Additional Deputy Commissioner (Judicial), Shillong while upholding the arbitral awards of the learned Arbitrator also suffer from the similar vice. We are, therefore, of the considered view that that the common order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong in Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016 as well as the 3 (three) Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator warrant interference in these appeals under Sec. 37 of the Arbitration and Conciliation Act, 1996. 53. There are additional reasons for interfering with order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong and the Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator. As the learned counsel for the appellant has submitted, the potential effect of the Arbitral Award on public exchequer is that the appellant, which is a public sector undertaking, will have to pay a sum of about Rs. 3.56 Lakh for every truckload of 10 cubic metre of sand or boulder (travelling for 100 km) and the total potential effect would be about Rs. 1,000 Crore. We are of the considered view that payment of Rs. 3.56 Lakh per truck (10 Cubic Metre) of sand or boulder (100 km distance) is definitely a case of unjust enrichment which is contrary to the Fundamental Policy of Indian Law. Unjust enrichment being contrary to the Fundamental Policy of Indian Law is a ground for interference with an Arbitral Award under Sec. 34(2) of the Act. The Bombay High Court in Angerlehner Structural and Civil Engineering co. v. Municipal Corporation of Greater Mumbai has recognized unjust enrichment of a party at the cost of public exchequer as being against the fundamental policy of Indian law. The Bombay High Court has held: If the argument of the Contractors is accepted, it lead to them blatantly enriching themselves over and above what they are entitled. Such completely unjust enrichment, that too at the cost of public funds, is abhorrent under the fundamental policy of Indian Law. The award in AJECT, which permits such blatant enrichment is therefore is also vitiated on the ground that it is against the fundamental policy of Indian Law. We are also of the considered view that the Arbitral Award which would potentially result in unjust enrichment of the respondent to the extent of about Rs. 1,000 Crores is against the fundamental policy of Indian law and, therefore, warrant interference on this count as well. Though this court is not sitting in appeal over the award of the arbitral tribunal, the presence of grounds under Section 34[2] of the Act and the satisfaction arrived at by this Court in this regard, warrants interference more so, as the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation and in line with the fundamental policy of Indian law. (emphasis supplied) 26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra). 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. 28. The learned Solicitor General Mr. Tushar Mehta and Mr. H. Ahmadi, Senior Advocate for the respondent, submitted that all these contentions were raised in the earlier round when challenge to the substantive Judgment dated 26.02.2019 was made. The said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order. | 0[ds]12. In our considered view, it is not necessary to go into the question of maintainability of these SLPs preferred against the order rejecting the review, after the challenge to the main judgment had been rejected in the earlier SLPs. As noted earlier, in this case, the judgment of the High Court under Section 37 of the Act was challenged before the Supreme Court and the SLPs were dismissed by the Supreme Court after hearing the Senior Counsel for the parties vide order dated 19.07.2019. Be it noted when the earlier SLPs were dismissed, no liberty was taken to file the review before the High Court. Be that as it may, we are not inclined to go into this aspect any furtherIn the present case, admittedly, after the arbitral awards are dated 29.03.2016, the applications under Section 34 of the Act were filed before the Judicial Commissioner, Shillong as per the decision in Board of Control for Cricket in India (Board of Control for Cricket in India v. Kochi Cricket Private Limited and Others (2018) 6 SCC 287 ) , the provisions of the Amendment Act would apply20. In Ssangyong Engineering and Construction Company Limited (Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI) (2019) 15 SCC 131 ) , this Court was considering a challenge to an award passed in an international commercial arbitration, between the Appellant – company a foreign entity registered under the laws of Korea, and the Respondent, a Government of India undertaking. In paragraph (19) of the judgment, this Court noted that the expansive interpretation given to public policy of India in the Saw Pipes (supra) and Western Geco International Limited (Oil & Natural Gas Corporation Ltd. v. Western Geco International Limited (2014) 9 SCC 263 ) cases, which had been done away with, and a new ground of patent illegality was introduced which would apply to applications under Section 34 made on or after 23.10.2015. In paragraphs (36) and (37) of the judgment, this Court held that insofar as domestic awards are concerned, the additional ground of patent illegality was now available under sub-section (2A) to Section 34. However, re-appreciation of evidence was not permitted under the ground of patent illegality appearing on the face of the award21. In paragraphs (39) and (40) of Ssangyong Engineering (supra), the Court reiterated paragraphs (42.2) and (42.3) of Associate Builders (supra) wherein, it was held that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes a contract in a manner which no fair minded or reasonable person would take i.e. if the view taken by the arbitrator is not even a possible view to take. In paragraphs (39) and (40), the Supreme Court held as under:-39. To elucidate, para 42.1 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Para 42.2 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award40. The change made in Section 28(3) by the Amendment Act really follows what is stated in paras 42.3 to 45 in Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrators view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2-A). (emphasis supplied)22. The present case arises out of a domestic award between two Indian entities. The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view23. In the present case, the High Court has referred to the judgment in Associated Builders (supra) at length in paragraph (42) of its judgment dated 26.02.2019 and arrived at the correct conclusion that an arbitral award can be set aside under Section 34 if it is patently illegal or perverse. This finding of the High Court is in conformity with paragraph (40) of the judgment of this Court in Ssangyong Engineering (supra)24. In the present case, the High Court in paragraph (51) has held that no reasonable person could have arrived at a different conclusion while interpreting Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract. Any other interpretation of the above clauses would definitely be irrational and in defiance of all logic26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra)27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversityThe said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order | 0 | 6,211 | 1,308 | ### 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:
3.4 of the BoQ are applicable. The provisional payment was an interim arrangement and was preceded by meetings dated 07.12.2012 and 08.12.2012 wherein it was specifically agreed between the parties that HoP, NEEPCO would take steps for referring the dispute to arbitration and that till the arbitral award, the payment would be made as per the prevailing provisional rate without any escalation and that final rate payable for transportation of sand and boulder shall be done on implementation of the arbitral award. As such the fact that provisional payment was made by deducting initial lead of 3.0 km was an irrelevant fact for deciding the issue. The findings of the learned Arbitrator having been arrived at by taking into account irrelevant factors and by ignoring vital clauses, the same suffers from vice of irrationality and perversity. It must be borne in mind that the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation. The findings of the learned Additional Deputy Commissioner (Judicial), Shillong while upholding the arbitral awards of the learned Arbitrator also suffer from the similar vice. We are, therefore, of the considered view that that the common order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong in Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016 as well as the 3 (three) Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator warrant interference in these appeals under Sec. 37 of the Arbitration and Conciliation Act, 1996. 53. There are additional reasons for interfering with order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong and the Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator. As the learned counsel for the appellant has submitted, the potential effect of the Arbitral Award on public exchequer is that the appellant, which is a public sector undertaking, will have to pay a sum of about Rs. 3.56 Lakh for every truckload of 10 cubic metre of sand or boulder (travelling for 100 km) and the total potential effect would be about Rs. 1,000 Crore. We are of the considered view that payment of Rs. 3.56 Lakh per truck (10 Cubic Metre) of sand or boulder (100 km distance) is definitely a case of unjust enrichment which is contrary to the Fundamental Policy of Indian Law. Unjust enrichment being contrary to the Fundamental Policy of Indian Law is a ground for interference with an Arbitral Award under Sec. 34(2) of the Act. The Bombay High Court in Angerlehner Structural and Civil Engineering co. v. Municipal Corporation of Greater Mumbai has recognized unjust enrichment of a party at the cost of public exchequer as being against the fundamental policy of Indian law. The Bombay High Court has held: If the argument of the Contractors is accepted, it lead to them blatantly enriching themselves over and above what they are entitled. Such completely unjust enrichment, that too at the cost of public funds, is abhorrent under the fundamental policy of Indian Law. The award in AJECT, which permits such blatant enrichment is therefore is also vitiated on the ground that it is against the fundamental policy of Indian Law. We are also of the considered view that the Arbitral Award which would potentially result in unjust enrichment of the respondent to the extent of about Rs. 1,000 Crores is against the fundamental policy of Indian law and, therefore, warrant interference on this count as well. Though this court is not sitting in appeal over the award of the arbitral tribunal, the presence of grounds under Section 34[2] of the Act and the satisfaction arrived at by this Court in this regard, warrants interference more so, as the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation and in line with the fundamental policy of Indian law. (emphasis supplied) 26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra). 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. 28. The learned Solicitor General Mr. Tushar Mehta and Mr. H. Ahmadi, Senior Advocate for the respondent, submitted that all these contentions were raised in the earlier round when challenge to the substantive Judgment dated 26.02.2019 was made. The said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order.
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awards are dated 29.03.2016, the applications under Section 34 of the Act were filed before the Judicial Commissioner, Shillong as per the decision in Board of Control for Cricket in India (Board of Control for Cricket in India v. Kochi Cricket Private Limited and Others (2018) 6 SCC 287 ) , the provisions of the Amendment Act would apply20. In Ssangyong Engineering and Construction Company Limited (Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI) (2019) 15 SCC 131 ) , this Court was considering a challenge to an award passed in an international commercial arbitration, between the Appellant – company a foreign entity registered under the laws of Korea, and the Respondent, a Government of India undertaking. In paragraph (19) of the judgment, this Court noted that the expansive interpretation given to public policy of India in the Saw Pipes (supra) and Western Geco International Limited (Oil & Natural Gas Corporation Ltd. v. Western Geco International Limited (2014) 9 SCC 263 ) cases, which had been done away with, and a new ground of patent illegality was introduced which would apply to applications under Section 34 made on or after 23.10.2015. In paragraphs (36) and (37) of the judgment, this Court held that insofar as domestic awards are concerned, the additional ground of patent illegality was now available under sub-section (2A) to Section 34. However, re-appreciation of evidence was not permitted under the ground of patent illegality appearing on the face of the award21. In paragraphs (39) and (40) of Ssangyong Engineering (supra), the Court reiterated paragraphs (42.2) and (42.3) of Associate Builders (supra) wherein, it was held that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes a contract in a manner which no fair minded or reasonable person would take i.e. if the view taken by the arbitrator is not even a possible view to take. In paragraphs (39) and (40), the Supreme Court held as under:-39. To elucidate, para 42.1 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Para 42.2 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award40. The change made in Section 28(3) by the Amendment Act really follows what is stated in paras 42.3 to 45 in Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrators view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2-A). (emphasis supplied)22. The present case arises out of a domestic award between two Indian entities. The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view23. In the present case, the High Court has referred to the judgment in Associated Builders (supra) at length in paragraph (42) of its judgment dated 26.02.2019 and arrived at the correct conclusion that an arbitral award can be set aside under Section 34 if it is patently illegal or perverse. This finding of the High Court is in conformity with paragraph (40) of the judgment of this Court in Ssangyong Engineering (supra)24. In the present case, the High Court in paragraph (51) has held that no reasonable person could have arrived at a different conclusion while interpreting Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract. Any other interpretation of the above clauses would definitely be irrational and in defiance of all logic26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra)27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversityThe said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order
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Mcleod Russel India Limited Vs. Reg.Prov.Fund Comm.,Jalpaiguri | from differing decisions of different High Courts by clarifying that the word ‘damages’ has been employed in this dispensation to mean penalty on recalcitrant employers as well as reparation for loss caused to the Fund. The Court stoutly repelled the contention that damages were merely compensatory in nature and, therefore, should not exceed the interest that would have accrued in favour of the Funds had the contributions been diligently dispatched to the Funds. Organo has been favourably followed in Babubhai & Co. vs. State of Gujarat (1985) 2 SCC 732. 10. There is no gainsaying that criminal liability remains steadfastly fastened to the actual perpetrator and cannot be transferred by any compact between persons or even by statute. But this incontrovertible legal principle does not support or validate the contention of Mr. Jayant Bhushan, Learned Senior Advocate for the Appellants, that damages levied in terms of Section 14B of the EPF Act cannot be foisted onto his clients. Sections 14, 14A, 14AA, 14AB and 14AC of the EPF Act are the provisions postulating prosecution; in contradistinction Section 14B contemplates the power to “recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme”. It is true that it is not a river but a mere rivulet that segregates and distinguishes the legal concepts of damages or compensatory damages or exemplary damages or deterrent damages or punitive damages or retributory damages. We shall abjure from writing a dissertation on this compelling legal nodus; save to clarify that modern jurisprudence recognizes that the imposition of punitive damages, quintessentially quasi-criminal in character, can be resorted to even in civil proceedings to deter willful wrongdoing by making an admonished example of the wrongdoer. This is the essential purpose, it seems to us, of Section 14B of the EPF Act, and an imposition within its confines does not assume criminal prosecution so as to stand proscribed insofar as transfer of establishment from one management/employer to its successor is concerned.11. It has also been argued that damages as postulated in Section 14B would not be transferable under Section 17B. This argument has to be stated only to be rejected for the reason that Section 17B specifically speaks of “the contributions and other sums due from the employer under any provision of this Act or the Scheme” (emphasis added). The proviso to Section 17B indeed clarifies the position inasmuch as it restricts and/or limits the liability of the transferee up to the date of the transfer to the value of the assets obtained by him through such transfer. 12. We are also not impressed by the argument addressed by Mr. Bhushan to the effect that damages under Section 14B are not jointly and separately recoverable from the erstwhile and the present managements under Section 17B as Section 14B moves in its own and independent orbit. Several amendments have been made to the EPF Act so far as the fasciculous of Sections 7A to Section 7Q is concerned. This is also true of the pandect containing Sections 14A, 14AA, 14AB, 14AC, 14B and 14C; and for that matter Sections 17A, 17AA and 17B. Where such widespread amendments and changes are incorporated in a statute, it is always salutary and advisable to reposition the provisions and number them sequentially and logically. The argument that the phrase “determination of amounts due from any employer” is found in Section 7A as well as in Section 17B is not factually correct. Section 17B speaks of “contributions and other sums dues from the employer under any provision of this Act …….”; the latter Section is, therefore, wider in ambit than the previous one. In our opinion, Section 14B is complete in itself so far as the computation of damages is concerned. It is conceivable that the money due from an employer would have to be calculated under Section 7A, and in the event the default or neglect of the employer is contumacious and contains the requisite mens rea and actus reus yet another exercise of computation has to be undertaken under Section 14B. Where the Authority is of the opinion that damages under Section 14B need to be imposed, the computations would come within the purview of Section 14B and it would be recoverable jointly and severally from the erstwhile as well as the current managements. A perusal of the Appeals Section, namely, 7I is illustrative of the fact that these exercises are distinct from each other as per the enumerations found in the first sub-Section of Section 7I. It also appears logical to us, in the wake of the numerous and different dates of amendments, that Section 7A(2) would also be available to proceedings under Section 14B of the Act. The applicability of Civil Procedure Code, 1908 to proceedings under Section 14B has not specifically been barred by the statute. 13. It is necessary to clarify that Eveready Industries (India) Ltd. had in the interregnum of this litigation changed its name to Mcleod Russel India Ltd. In view of our above analysis, it is our considered opinion that the impugned Judgment deserves to be upheld. It contains a detailed and logical exposition of facts as well as the law pertaining to the present dispute. We also approve the pithy observations of the RPF Commissioner, Jalpaiguri in the subject Order that failure on the part of the employers to make remittances of accumulations and contributions, undermines the objectives and purposes of the statute. We underscore that the liability of the Fund to pay interest to subscribers regardless of whether employers have paid their dues, runs relentlessly. The Commissioner has specifically recorded that he has taken a lenient view in the matter and has eschewed imposition of damages to the extent of 100 per cent of the arrears even though this is envisaged by the EPF Act. The Appellant-Petitioner has, in the circumstances of the case, been also rightly burdened with the payment of interest under Section 7Q of the EPF Act. | 0[ds]10. There is no gainsaying that criminal liability remains steadfastly fastened to the actual perpetrator and cannot be transferred by any compact between persons or even by statute. But this incontrovertible legal principle does not support or validate the contention of Mr. Jayant Bhushan, Learned Senior Advocate for the Appellants, that damages levied in terms of Section 14B of the EPF Act cannot be foisted onto his clients. Sections 14, 14A, 14AA, 14AB and 14AC of the EPF Act are the provisions postulating prosecution; in contradistinction Section 14B contemplates the power tofrom the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in theIt is true that it is not a river but a mere rivulet that segregates and distinguishes the legal concepts of damages or compensatory damages or exemplary damages or deterrent damages or punitive damages or retributory damages. We shall abjure from writing a dissertation on this compelling legal nodus; save to clarify that modern jurisprudence recognizes that the imposition of punitive damages, quintessentially quasi-criminal in character, can be resorted to even in civil proceedings to deter willful wrongdoing by making an admonished example of the wrongdoer. This is the essential purpose, it seems to us, of Section 14B of the EPF Act, and an imposition within its confines does not assume criminal prosecution so as to stand proscribed insofar as transfer of establishment from one management/employer to its successor is concerned. | 0 | 5,029 | 268 | ### Instruction:
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from differing decisions of different High Courts by clarifying that the word ‘damages’ has been employed in this dispensation to mean penalty on recalcitrant employers as well as reparation for loss caused to the Fund. The Court stoutly repelled the contention that damages were merely compensatory in nature and, therefore, should not exceed the interest that would have accrued in favour of the Funds had the contributions been diligently dispatched to the Funds. Organo has been favourably followed in Babubhai & Co. vs. State of Gujarat (1985) 2 SCC 732. 10. There is no gainsaying that criminal liability remains steadfastly fastened to the actual perpetrator and cannot be transferred by any compact between persons or even by statute. But this incontrovertible legal principle does not support or validate the contention of Mr. Jayant Bhushan, Learned Senior Advocate for the Appellants, that damages levied in terms of Section 14B of the EPF Act cannot be foisted onto his clients. Sections 14, 14A, 14AA, 14AB and 14AC of the EPF Act are the provisions postulating prosecution; in contradistinction Section 14B contemplates the power to “recover from the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in the Scheme”. It is true that it is not a river but a mere rivulet that segregates and distinguishes the legal concepts of damages or compensatory damages or exemplary damages or deterrent damages or punitive damages or retributory damages. We shall abjure from writing a dissertation on this compelling legal nodus; save to clarify that modern jurisprudence recognizes that the imposition of punitive damages, quintessentially quasi-criminal in character, can be resorted to even in civil proceedings to deter willful wrongdoing by making an admonished example of the wrongdoer. This is the essential purpose, it seems to us, of Section 14B of the EPF Act, and an imposition within its confines does not assume criminal prosecution so as to stand proscribed insofar as transfer of establishment from one management/employer to its successor is concerned.11. It has also been argued that damages as postulated in Section 14B would not be transferable under Section 17B. This argument has to be stated only to be rejected for the reason that Section 17B specifically speaks of “the contributions and other sums due from the employer under any provision of this Act or the Scheme” (emphasis added). The proviso to Section 17B indeed clarifies the position inasmuch as it restricts and/or limits the liability of the transferee up to the date of the transfer to the value of the assets obtained by him through such transfer. 12. We are also not impressed by the argument addressed by Mr. Bhushan to the effect that damages under Section 14B are not jointly and separately recoverable from the erstwhile and the present managements under Section 17B as Section 14B moves in its own and independent orbit. Several amendments have been made to the EPF Act so far as the fasciculous of Sections 7A to Section 7Q is concerned. This is also true of the pandect containing Sections 14A, 14AA, 14AB, 14AC, 14B and 14C; and for that matter Sections 17A, 17AA and 17B. Where such widespread amendments and changes are incorporated in a statute, it is always salutary and advisable to reposition the provisions and number them sequentially and logically. The argument that the phrase “determination of amounts due from any employer” is found in Section 7A as well as in Section 17B is not factually correct. Section 17B speaks of “contributions and other sums dues from the employer under any provision of this Act …….”; the latter Section is, therefore, wider in ambit than the previous one. In our opinion, Section 14B is complete in itself so far as the computation of damages is concerned. It is conceivable that the money due from an employer would have to be calculated under Section 7A, and in the event the default or neglect of the employer is contumacious and contains the requisite mens rea and actus reus yet another exercise of computation has to be undertaken under Section 14B. Where the Authority is of the opinion that damages under Section 14B need to be imposed, the computations would come within the purview of Section 14B and it would be recoverable jointly and severally from the erstwhile as well as the current managements. A perusal of the Appeals Section, namely, 7I is illustrative of the fact that these exercises are distinct from each other as per the enumerations found in the first sub-Section of Section 7I. It also appears logical to us, in the wake of the numerous and different dates of amendments, that Section 7A(2) would also be available to proceedings under Section 14B of the Act. The applicability of Civil Procedure Code, 1908 to proceedings under Section 14B has not specifically been barred by the statute. 13. It is necessary to clarify that Eveready Industries (India) Ltd. had in the interregnum of this litigation changed its name to Mcleod Russel India Ltd. In view of our above analysis, it is our considered opinion that the impugned Judgment deserves to be upheld. It contains a detailed and logical exposition of facts as well as the law pertaining to the present dispute. We also approve the pithy observations of the RPF Commissioner, Jalpaiguri in the subject Order that failure on the part of the employers to make remittances of accumulations and contributions, undermines the objectives and purposes of the statute. We underscore that the liability of the Fund to pay interest to subscribers regardless of whether employers have paid their dues, runs relentlessly. The Commissioner has specifically recorded that he has taken a lenient view in the matter and has eschewed imposition of damages to the extent of 100 per cent of the arrears even though this is envisaged by the EPF Act. The Appellant-Petitioner has, in the circumstances of the case, been also rightly burdened with the payment of interest under Section 7Q of the EPF Act.
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10. There is no gainsaying that criminal liability remains steadfastly fastened to the actual perpetrator and cannot be transferred by any compact between persons or even by statute. But this incontrovertible legal principle does not support or validate the contention of Mr. Jayant Bhushan, Learned Senior Advocate for the Appellants, that damages levied in terms of Section 14B of the EPF Act cannot be foisted onto his clients. Sections 14, 14A, 14AA, 14AB and 14AC of the EPF Act are the provisions postulating prosecution; in contradistinction Section 14B contemplates the power tofrom the employer by way of penalty such damages, not exceeding the amount of arrears, as may be specified in theIt is true that it is not a river but a mere rivulet that segregates and distinguishes the legal concepts of damages or compensatory damages or exemplary damages or deterrent damages or punitive damages or retributory damages. We shall abjure from writing a dissertation on this compelling legal nodus; save to clarify that modern jurisprudence recognizes that the imposition of punitive damages, quintessentially quasi-criminal in character, can be resorted to even in civil proceedings to deter willful wrongdoing by making an admonished example of the wrongdoer. This is the essential purpose, it seems to us, of Section 14B of the EPF Act, and an imposition within its confines does not assume criminal prosecution so as to stand proscribed insofar as transfer of establishment from one management/employer to its successor is concerned.
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Management Of State Bank Of Hyderabad Vs. Vasudev Anant Bhide Etc | of the work to be done and the duties which were required to be performed by the various persons who were entitled to receive special allowances, the Desai Tribunal states in para 5.231 that the Sastry Award has been in operation for a long time and as a result of decisions given by Tribunals the categories of persons entitled to special allowances can be regarded as fairly settled. In paragraph 5.288 the Tribunal states that the special allowances which have been awarded are monthly special allowances intended to compensate a workman for the performance of certain duties and the discharge of certain functions which constitute the normal part of the duties performed and the functions discharged by such person and that they are not intended to be paid for casual or occasional performance of such duties or the casual or occasional discharge of such functions. It is further mentioned in paragraph 5.289 that a person is entitled to special allowance so long as he is in charge of such work or the performance of such duties which attract such allowance and that a person asked to work temporarily in a post carrying a special allowance would be entitled to such a special allowance for such period during which he occupies that post.42. Mr. Gokhale, learned Counsel for the respondent, referred us to the decision of this Court in Lloyds Bank v. Panna Lal Gupta, 1961-1 Lab LJ 18 = (AIR 1967 SC 428 ) and urged that the said decision is an authority for the proposition that if a person does work which appears to have some element of a supervisory character, he will be entitled to claim the supervisory allowance under paragraph 164(b)(9) of the Sastry Award. In our opinion that decision does not lay down any such proposition. In that decision this Court had to deal with a claim made by certain clerks working in the audit department for payment of the supervisory allowance under paragraph 164 (b) (9) of the Sastry Award. It must be stated at the outset that these clerks do not come under any of the nine categories mentioned in the Sastry Award, eligible for the special allowance. The Tribunal had held that the clerks in the audit department supervised the work of almost all the persons in the establishment with a view to ensure the correctness and authenticity of the accounts and it further held that having regard to the nature of the duties and functions performed by them they should be treated as supervisors under category (9) of the Sastry Award. This Court set aside the award of the Industrial Tribunal and in so setting aside the award observed that before a clerk could claim a special allowance his work should appear to have some element of a supervisory character. Even this prima facie test was enough to non-suit the three clerks therein. We do not understand this decision as laying down that when any person, coming under one or other of the categories mentioned as items 1 to 8 of paragraph 164 (b) can claim the higher rate of allowance granted to supervisors coming under category 9, merely by establishing that while discharging the work which appertains to that particular category, he did some items of work which have an element of supervisory character. In fact, in the earlier part of the judgment it is stated that even if the three workmen before them do not by name or designation fall in category 9, they would nevertheless be entitled to claim the special allowance if it appears that the duties performed by them and the functions discharged by them are similar to, or the same as, the duties or functions assigned to persons falling in that category. These observations, in our opinion, makes it quite clear that before a person can claim the supervisory special allowance, he must establish that he has discharged the duties and functions which are similar to or the same as the duties or functions assigned to supervisors coming under category 9. This decision also makes it clear that in deciding the status of an employee claiming the special allowance, the designation of the employee is not decisive and what determines the status is a consideration of the nature of the duties and functions assigned to the employee concerned.43. A similar claim for supervisory allowance, made by tellers in a bank, was rejected by this Court in Punjab National Bank Ltd. v. Their Workmen, 1961-2 Lab LJ 162 (SC) on the ground that a teller does not perform supervisory functions and he does not have the status of a supervisor and that the mere fact that the work done by a teller is responsible and onerous is not material in determining the question as to whether his work is supervisory in character or not.44. Again, in Eastern Bank v. Shivdas Vishnu Naik, 1963-2 Lab LJ 365 (SC) this Court negatived the claim of certain routine-clerks for the special allowance payable to comptists, coming under category 1, on the ground that in the course of discharging their duties as routine clerks they had to opeate the adding machines for the purpose of making additions mechanically. This Court further observed that obviously it was not the intention of the Sastry Award to make such persons eligible under category 1 of paragraph 164 (b) as :-"They are not described as such, and the nature of the work, the responsibility attending to the work and the skill required of them for discharging the said work do not justify their claim to be comptists for the purpose of special allowance".45.The work done by the Head Cashiers in the instant case may be considered very important, responsible and onerous, but, in our opinion, on the basis of the items of work claimed to be done by them, they are not entitled to the special allowance as supervisors, under category 9 of paragraph 164 (b) of the Sastry Award, or under the Desai Award. | 1[ds]16. We accept the contention of Mr. Gokhale that the Labour Court had been specified under Section 33C (2) as early as April 15, 1963. It follows that this contention of Mr. Aggarwala has no substance.Gokhale, on behalf of the respondents, urged that Article 137 had no application to proceedings initiated under Sec. 33Cview of this statement by the learned Counsel, it is unnecessary to consider this contention any further.We are not inclined to accept the contention of Mr. Gokhale that the point arising for consideration is purely one of fact. In exercising its discretion under Article 136, this Court does not normally enter upon pleas on questions of fact and is also generally reluctant to interfere with findings of fact recorded in a judgment on decision under appeal. So in dealing with the question raised by the appellant that the respondents had been wrongfully held entitled to claim supervisory special allowance we will proceed on the basis that the facts found by the Labour Court are correct. The Labour Court has accepted the claim of the respondents regarding the items of work done by them, though it has not differentiated between the various items of work as to which of them is of a supervisory nature.We will also proceed on the basis that according to the Labour Court some items of work done by the respondents as Head Cashiers can be called, supervisory. But will that make them eligible for the supervisory special allowance? The status of the three respondents has to be inferred as a matter of law from the facts found and therefore the question naturally arises as to whether the Labour Court has drawn the correct legal inference from the facts found by it.The claim of the respondents for the special allowance as supervisors is dealt with under Paragraph 164 (b) (9) of the Sastry Award. We may state that this Award was challenged by the Banks before the Labour Appellate Tribunal which substantially confirmed the directions issued in respect of payment of special allowances.Paragraph 5.285 states that special allowances prescribed under the Award would be in supersession of those prescribed under the Sastry Award as modified. In Paragraph 5.286 the Award states that special allowances are payable to employees who are workmen and who will continue to remain as workmen even after inclusion of the amounts of such special allowance as wages. In Paragraph 5.287 it is stated that when an employee falls within more than one category, he will be entitled to receive the special allowance at the highest rate applicable to him. We may state that this paragraph embodies the note appearing after the categories of employees enumerated in Para 164 (b) of the Sastry Award. Pausing here for a minute, we may state that the Note in the Sastry Award and Paragraph 5.287 in the Desai Award do not advance the case of the respondents any further. The effect of the note is only that if an employee has been assigned work the discharge of which will bring him under two categories, one of which carries a higher rate of special allowance, he will be entitled to such higher rate.Having seen the relevant provisions in the two Awards, we have come to the conclusion that the scheme of both the Sastry and Desai Awards for grant of special allowance as Supervisors is that such special allowances can be drawn only when a person falls in the category of a supervisor or is found eligible to be put in that category by whatever nomenclature such person may be designated, in view of the supervisory nature of the duties and functions assigned to him. The mere fact that a person whose duties are essentially and mainly that of a Head Cashier, for whom also a special allowance is payable under the two Awards, performs occasionally or casually or incidental to his work as a Head Cashier, duties which may be characterised as supervisory, will not entitle him to claim the higher rate of special allowance granted to a supervisor under the two Awards.Both the Sastry and the Desai Tribunals had before them various types of persons working in the banks as well as the duties discharged by them. It is on that basis and after a careful consideration of the duites so performed by them and the responsibilities attached to each post that the two Tribunal divided the person into nine categories in the Sastry Award and twenty categories in the Desai Award. We are not inclined to accept the contention of Mr. Gokhale that merely because certain items of work, which really form part of the regular work of Head Cashiers, can be considered as being supervisory and are being done by the respondents, they will be entitled to claim the higher rate of supervisory special allowance.36. We have already referred to the evidence of the respondents that the work that was being done by them were all items of work forming part of the duties of a Head Cashier, from the inception of the bank and all Head Cashiers do similar work. Therefore it follows that the work done by the respondents, even on their own admission and on the findings of the Labour Court, consisted of only items of work which a Head Cashier was bound to do; and the few items of work claimed by them to be supervisory were really done by them as incidental to their main duties as Head Cashiers.We have already referred to the evidence of the respondents that the work that was being done by them were all items of work forming part of the duties of a Head Cashier, from the inception of the bank and all Head Cashiers do similar work. Therefore it follows that the work done by the respondents, even on their own admission and on the findings of the Labour Court, consisted of only items of work which a Head Cashier was bound to do; and the few items of work claimed by them to be supervisory were really done by them as incidental to their main duties as Head Cashiers.In this connection it is also necessary to note that the appellant bank and its employees were parties to both the Sastry and Desai Awards. We have already referred to the fact that the Sastry Award adverts, in paragraph 338, to the demand made by the Head Cashiers to be treated as supervisors or heads of sections. No doubt this demand was in respect of emoluments being fixed appropriate to position of responsibility of supervisors; but this claim was rejected by that Tribunal. A similar demand, on behalf of Head Cashiers, for giving them supervisory grades was rejected by the Desai Award in paragraph 5.249. These circumstances clearly show that the two Tribunals were not inclined to treat Head Cashiers on a par with Supervisors and that must be due to the reason that the functions discharged by the Head Cashiers and Supervisors materially differ. The view expressed by us earlier that the Sastry and Desai Awards had in view persons falling under the category of supervisors or discharging supervisory functions by whatever nomenclature they may be designated, is also clear from some of the statements made in the Awards, to which we shall refer presently.39. We will first take up the Sastry Award. In para 161 it is stated that the demand for extra payments, designated as special allowances, was made with reference to the nature of clerical and subordinate work now performed by employees under various designations. In paragraph 162, again it is stated that the Tribunal has provided only a minimum special allowance and that it may be proper and desirable that the incumbents of such offices in some of the big banks should be allowed by them more than that awarded by the Tribunal. In paragraph 163 the Tribunal proceeds to enumerate the categories for which special allowances, in our opinion, be given. After specifying the categories of employees for whom special allowance is to be given, in paragraph 165 the Tribunal is faced with the question as to whether the employees in these categories will fall within the definition of workmen. This question is separately dealt with in Chapter XV, but in paragraph 165, regarding this aspect the Tribunalwe are now providing must be understood as the allowances applicable to incumbents of such of these posts where they are workmen".Similarly, in the Desai Award, in dealing with Supervisory Staff, in paragraph 5.218 the Tribunal states that it is left with no alternative except to fix special allowances for workmen employed in a supervisory capacity as was done by the Sastry Tribunal. It is further stated in the same paragraph that in deciding whether a workman is entitled to supervisory allowance, the designation of the workmen would not be decisive and that in order to entitle the workman to such allowance what would be determinative would be the nature of the duties and functions assigned to him. In paragraph 5.221 the Tribunal itself has stated that the Sastry Tribunal provided special allowances for the 9 categories of workmen employed in various classes of banks as mentionedour opinion that decision does not lay down any suchobservations, in our opinion, makes it quite clear that before a person can claim the supervisory special allowance, he must establish that he has discharged the duties and functions which are similar to or the same as the duties or functions assigned to supervisors coming under category 9. This decision also makes it clear that in deciding the status of an employee claiming the special allowance, the designation of the employee is not decisive and what determines the status is a consideration of the nature of the duties and functions assigned to the employeework done by the Head Cashiers in the instant case may be considered very important, responsible and onerous, but, in our opinion, on the basis of the items of work claimed to be done by them, they are not entitled to the special allowance as supervisors, under category 9 of paragraph 164 (b) of the Sastry Award, or under the Desai Award. | 1 | 9,861 | 1,802 | ### Instruction:
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of the work to be done and the duties which were required to be performed by the various persons who were entitled to receive special allowances, the Desai Tribunal states in para 5.231 that the Sastry Award has been in operation for a long time and as a result of decisions given by Tribunals the categories of persons entitled to special allowances can be regarded as fairly settled. In paragraph 5.288 the Tribunal states that the special allowances which have been awarded are monthly special allowances intended to compensate a workman for the performance of certain duties and the discharge of certain functions which constitute the normal part of the duties performed and the functions discharged by such person and that they are not intended to be paid for casual or occasional performance of such duties or the casual or occasional discharge of such functions. It is further mentioned in paragraph 5.289 that a person is entitled to special allowance so long as he is in charge of such work or the performance of such duties which attract such allowance and that a person asked to work temporarily in a post carrying a special allowance would be entitled to such a special allowance for such period during which he occupies that post.42. Mr. Gokhale, learned Counsel for the respondent, referred us to the decision of this Court in Lloyds Bank v. Panna Lal Gupta, 1961-1 Lab LJ 18 = (AIR 1967 SC 428 ) and urged that the said decision is an authority for the proposition that if a person does work which appears to have some element of a supervisory character, he will be entitled to claim the supervisory allowance under paragraph 164(b)(9) of the Sastry Award. In our opinion that decision does not lay down any such proposition. In that decision this Court had to deal with a claim made by certain clerks working in the audit department for payment of the supervisory allowance under paragraph 164 (b) (9) of the Sastry Award. It must be stated at the outset that these clerks do not come under any of the nine categories mentioned in the Sastry Award, eligible for the special allowance. The Tribunal had held that the clerks in the audit department supervised the work of almost all the persons in the establishment with a view to ensure the correctness and authenticity of the accounts and it further held that having regard to the nature of the duties and functions performed by them they should be treated as supervisors under category (9) of the Sastry Award. This Court set aside the award of the Industrial Tribunal and in so setting aside the award observed that before a clerk could claim a special allowance his work should appear to have some element of a supervisory character. Even this prima facie test was enough to non-suit the three clerks therein. We do not understand this decision as laying down that when any person, coming under one or other of the categories mentioned as items 1 to 8 of paragraph 164 (b) can claim the higher rate of allowance granted to supervisors coming under category 9, merely by establishing that while discharging the work which appertains to that particular category, he did some items of work which have an element of supervisory character. In fact, in the earlier part of the judgment it is stated that even if the three workmen before them do not by name or designation fall in category 9, they would nevertheless be entitled to claim the special allowance if it appears that the duties performed by them and the functions discharged by them are similar to, or the same as, the duties or functions assigned to persons falling in that category. These observations, in our opinion, makes it quite clear that before a person can claim the supervisory special allowance, he must establish that he has discharged the duties and functions which are similar to or the same as the duties or functions assigned to supervisors coming under category 9. This decision also makes it clear that in deciding the status of an employee claiming the special allowance, the designation of the employee is not decisive and what determines the status is a consideration of the nature of the duties and functions assigned to the employee concerned.43. A similar claim for supervisory allowance, made by tellers in a bank, was rejected by this Court in Punjab National Bank Ltd. v. Their Workmen, 1961-2 Lab LJ 162 (SC) on the ground that a teller does not perform supervisory functions and he does not have the status of a supervisor and that the mere fact that the work done by a teller is responsible and onerous is not material in determining the question as to whether his work is supervisory in character or not.44. Again, in Eastern Bank v. Shivdas Vishnu Naik, 1963-2 Lab LJ 365 (SC) this Court negatived the claim of certain routine-clerks for the special allowance payable to comptists, coming under category 1, on the ground that in the course of discharging their duties as routine clerks they had to opeate the adding machines for the purpose of making additions mechanically. This Court further observed that obviously it was not the intention of the Sastry Award to make such persons eligible under category 1 of paragraph 164 (b) as :-"They are not described as such, and the nature of the work, the responsibility attending to the work and the skill required of them for discharging the said work do not justify their claim to be comptists for the purpose of special allowance".45.The work done by the Head Cashiers in the instant case may be considered very important, responsible and onerous, but, in our opinion, on the basis of the items of work claimed to be done by them, they are not entitled to the special allowance as supervisors, under category 9 of paragraph 164 (b) of the Sastry Award, or under the Desai Award.
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in the banks as well as the duties discharged by them. It is on that basis and after a careful consideration of the duites so performed by them and the responsibilities attached to each post that the two Tribunal divided the person into nine categories in the Sastry Award and twenty categories in the Desai Award. We are not inclined to accept the contention of Mr. Gokhale that merely because certain items of work, which really form part of the regular work of Head Cashiers, can be considered as being supervisory and are being done by the respondents, they will be entitled to claim the higher rate of supervisory special allowance.36. We have already referred to the evidence of the respondents that the work that was being done by them were all items of work forming part of the duties of a Head Cashier, from the inception of the bank and all Head Cashiers do similar work. Therefore it follows that the work done by the respondents, even on their own admission and on the findings of the Labour Court, consisted of only items of work which a Head Cashier was bound to do; and the few items of work claimed by them to be supervisory were really done by them as incidental to their main duties as Head Cashiers.We have already referred to the evidence of the respondents that the work that was being done by them were all items of work forming part of the duties of a Head Cashier, from the inception of the bank and all Head Cashiers do similar work. Therefore it follows that the work done by the respondents, even on their own admission and on the findings of the Labour Court, consisted of only items of work which a Head Cashier was bound to do; and the few items of work claimed by them to be supervisory were really done by them as incidental to their main duties as Head Cashiers.In this connection it is also necessary to note that the appellant bank and its employees were parties to both the Sastry and Desai Awards. We have already referred to the fact that the Sastry Award adverts, in paragraph 338, to the demand made by the Head Cashiers to be treated as supervisors or heads of sections. No doubt this demand was in respect of emoluments being fixed appropriate to position of responsibility of supervisors; but this claim was rejected by that Tribunal. A similar demand, on behalf of Head Cashiers, for giving them supervisory grades was rejected by the Desai Award in paragraph 5.249. These circumstances clearly show that the two Tribunals were not inclined to treat Head Cashiers on a par with Supervisors and that must be due to the reason that the functions discharged by the Head Cashiers and Supervisors materially differ. The view expressed by us earlier that the Sastry and Desai Awards had in view persons falling under the category of supervisors or discharging supervisory functions by whatever nomenclature they may be designated, is also clear from some of the statements made in the Awards, to which we shall refer presently.39. We will first take up the Sastry Award. In para 161 it is stated that the demand for extra payments, designated as special allowances, was made with reference to the nature of clerical and subordinate work now performed by employees under various designations. In paragraph 162, again it is stated that the Tribunal has provided only a minimum special allowance and that it may be proper and desirable that the incumbents of such offices in some of the big banks should be allowed by them more than that awarded by the Tribunal. In paragraph 163 the Tribunal proceeds to enumerate the categories for which special allowances, in our opinion, be given. After specifying the categories of employees for whom special allowance is to be given, in paragraph 165 the Tribunal is faced with the question as to whether the employees in these categories will fall within the definition of workmen. This question is separately dealt with in Chapter XV, but in paragraph 165, regarding this aspect the Tribunalwe are now providing must be understood as the allowances applicable to incumbents of such of these posts where they are workmen".Similarly, in the Desai Award, in dealing with Supervisory Staff, in paragraph 5.218 the Tribunal states that it is left with no alternative except to fix special allowances for workmen employed in a supervisory capacity as was done by the Sastry Tribunal. It is further stated in the same paragraph that in deciding whether a workman is entitled to supervisory allowance, the designation of the workmen would not be decisive and that in order to entitle the workman to such allowance what would be determinative would be the nature of the duties and functions assigned to him. In paragraph 5.221 the Tribunal itself has stated that the Sastry Tribunal provided special allowances for the 9 categories of workmen employed in various classes of banks as mentionedour opinion that decision does not lay down any suchobservations, in our opinion, makes it quite clear that before a person can claim the supervisory special allowance, he must establish that he has discharged the duties and functions which are similar to or the same as the duties or functions assigned to supervisors coming under category 9. This decision also makes it clear that in deciding the status of an employee claiming the special allowance, the designation of the employee is not decisive and what determines the status is a consideration of the nature of the duties and functions assigned to the employeework done by the Head Cashiers in the instant case may be considered very important, responsible and onerous, but, in our opinion, on the basis of the items of work claimed to be done by them, they are not entitled to the special allowance as supervisors, under category 9 of paragraph 164 (b) of the Sastry Award, or under the Desai Award.
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Shuganchand Vs. Prakash Chand & Others | allowed his appeal and dismissed the appellants suit. The High Court has held that since Kanakmals wife was alive at his death it was she alone who was competent to adopt with a view to obtain the estate of Kanakmal, and that the adoption made by the widowed daughter-in-law would not have the effect of divesting the estate which had vested in Kanakmals widow. It is on this narrow ground that the respondent has succeeded in the High Court. The High Courts decision was pronounced on February 1, 1954. It is this decision which is challenged before us by the appellant who has brought the appeal to this Court with special leave.6. The main contention which is urged before us by Mr. Andley for the appellant is that the High Court was in error in allowing the respondent to make out a new point before it at a very late stage, and he has also contended that in deciding the said point against the appellant the High Court has lost sight of a very important fact that at the time when the present suit was brought Jadav Bai was dead and there was no question of divesting the estate vested in her. Though, as we have already seen, this litigation has passed through a protracted career, it is significant that throughout these proceedings the validity of the adoption and the inability of the adopted son to divest the estate of Jadav Bai were never specifically and clearly raised; several other points of dispute arose between the parties but this aspect of the matter was never raised for a decision until the matter reached before the High Court in second appeal at the last stage of the present proceedings. It is nobodys case that on the death of Jadav Bai any other heir could claim a preferential title as against the appellant. The adoption of the appellant is held proved. It appears to be established that at the time of his adoption Jadav Bai was present and she gave consent to it. The appellant had stayed with the family all the time after his adoption and has been treated as a member of the family by Jadav Bai and his adoptive mother. It appears from the allegations in the plaint which have not been successfully traversed that the rest of the estate left by Kanakmal is in the possession of the appellant. That being so, it seems to us plain that whether or not the appellant could have divested Jadav Bais estate while she was alive, on her death he gets the property by succession, and if Kanakmals title is held proved and the other pleas raised by the respondent are rejected, there can be no effective answer to the appellants claim for possession of the suit land. That is why we think the High Court unnecessarily entered into the discussion of an academic point raised before it in that form for the first time, and in dealing with the said academic point it lost sight of the basic fact that by the death of Jadav Bai which had taken place before the suit was filed the question raised for its decision did not fall to be considered.7. Faced with this difficulty Mr. Achhru Ram, for the respondent, attempted to raise a point which has never been raised before. He sought to contend that it was a misnomer to call the appellant the adopted son of Mannilal. It was a case of a mere appointment of an heir, and according to him such an appointed heir would not take all the rights of an adopted son and would not necessarily be able to claim the estate of Kanakmal. In support of this argument Mr. Achhru Ram relied on the decision of the Privy Council in Dhanraj Joharmal v. Soni Bai, ILR 52 Cal 482: (AIR 1925 PC 118). In that case their Lordships have observed that they had no doubt on the evidence that the story about a regular Hindu or, rather, Brahminical adoption in 1903 was invented with the object of giving to an ordinary Agarwalla adoption the rights of collateral succession, and since it was found that the adoption in that form had not taken place the claim for collateral succession could not be entertained. Mr. Achhru Ram did not appear to contest the position that so far as Jains are concerned the ordinary Hindu law is to be applied to them in the absence of proof of special customs and usages varying that law. It is true that Jains do not believe that a son either natural or adopted confers any spiritual benefit on the father, and so adoption amongst Jains is a purely secular matter, but, with regard to the rights of an adopted son, unless a contrary custom or usage is established the ordinary Hindu law would apply. That is why Mr. Achhru Ram seeks to make a distinction between adoption properly so called and an appointment of an heir. In that connection he wanted us to consider decisions of the Punjab High Court in respect of appointed heirs. We have not allowed Mr. Achhru Ram to develop this point, because we think it is too late now to raise any such contention. In this plaint the appellant had set out the pedigree and claimed to be the grandson of Kanakmal and evidence was led by him to prove his adoption. It appears that Mannilal himself was the adopted son of Kanakmal. Several pleas were raised but it was never suggested that the appellant was merely appointed as an heir and that as such his case was different from that of an adopted son. We have no doubt that it would be extremely unreasonable to allow ingenuity free scope at this late stage of this litigation. As we have already observed, a very simple suit for possession has had an unduly prolonged career, and there is no justification for giving it any further lease of life. | 1[ds]6. The main contention which is urged before us by Mr. Andley for the appellant is that the High Court was in error in allowing the respondent to make out a new point before it at a very late stage, and he has also contended that in deciding the said point against the appellant the High Court has lost sight of a very important fact that at the time when the present suit was brought Jadav Bai was dead and there was no question of divesting the estate vested in her.Though, as we have already seen, this litigation has passed through a protracted career, it is significant that throughout these proceedings the validity of the adoption and the inability of the adopted son to divest the estate of Jadav Bai were never specifically and clearly raised; several other points of dispute arose between the parties but this aspect of the matter was never raised for a decision until the matter reached before the High Court in second appeal at the last stage of the present proceedings. It is nobodys case that on the death of Jadav Bai any other heir could claim a preferential title as against the appellant. The adoption of the appellant is held proved. It appears to be established that at the time of his adoption Jadav Bai was present and she gave consent to it. The appellant had stayed with the family all the time after his adoption and has been treated as a member of the family by Jadav Bai and his adoptive mother. It appears from the allegations in the plaint which have not been successfully traversed that the rest of the estate left by Kanakmal is in the possession of the appellant. That being so, it seems to us plain that whether or not the appellant could have divested Jadav Bais estate while she was alive, on her death he gets the property by succession, and if Kanakmals title is held proved and the other pleas raised by the respondent are rejected, there can be no effective answer to the appellants claim for possession of the suit land. That is why we think the High Court unnecessarily entered into the discussion of an academic point raised before it in that form for the first time, and in dealing with the said academic point it lost sight of the basic fact that by the death of Jadav Bai which had taken place before the suit was filed the question raised for its decision did not fall to be considered.Faced with this difficulty Mr. Achhru Ram, for the respondent, attempted to raise a point which has never been raised before. He sought to contend that it was a misnomer to call the appellant the adopted son of Mannilal. It was a case of a mere appointment of an heir, and according to him such an appointed heir would not take all the rights of an adopted son and would not necessarily be able to claim the estate of Kanakmal. In support of this argument Mr. Achhru Ram relied on the decision of the Privy Council in Dhanraj Joharmal v. Soni Bai, ILR 52 Cal 482: (AIR 1925 PC118). In that case their Lordships have observed that they had no doubt on the evidence that the story about a regular Hindu or, rather, Brahminical adoption in 1903 was invented with the object of giving to an ordinary Agarwalla adoption the rights of collateral succession, and since it was found that the adoption in that form had not taken place the claim for collateral succession could not be entertained. Mr. Achhru Ram did not appear to contest the position that so far as Jains are concerned the ordinary Hindu law is to be applied to them in the absence of proof of special customs and usages varying that law. Itis true that Jains do not believe that a son either natural or adopted confers any spiritual benefit on the father, and so adoption amongst Jains is a purely secular matter, but, with regard to the rights of an adopted son, unless a contrary custom or usage is established the ordinary Hindu law would apply. That is why Mr. Achhru Ram seeks to make a distinction between adoption properly so called and an appointment of an heir. In that connection he wanted us to consider decisions of the Punjab High Court in respect of appointed heirs.We have not allowed Mr. Achhru Ram to develop this point, because we think it is too late now to raise any such contention. In this plaint the appellant had set out the pedigree and claimed to be the grandson of Kanakmal and evidence was led by him to prove his adoption. It appears that Mannilal himself was the adopted son of Kanakmal. Several pleas were raised but it was never suggested that the appellant was merely appointed as an heir and that as such his case was different from that of an adopted son. We have no doubt that it would be extremely unreasonable to allow ingenuity free scope at this late stage of this litigation. As we have already observed, a very simple suit for possession has had an unduly prolonged career, and there is no justification for giving it any further lease of life. | 1 | 1,979 | 937 | ### Instruction:
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allowed his appeal and dismissed the appellants suit. The High Court has held that since Kanakmals wife was alive at his death it was she alone who was competent to adopt with a view to obtain the estate of Kanakmal, and that the adoption made by the widowed daughter-in-law would not have the effect of divesting the estate which had vested in Kanakmals widow. It is on this narrow ground that the respondent has succeeded in the High Court. The High Courts decision was pronounced on February 1, 1954. It is this decision which is challenged before us by the appellant who has brought the appeal to this Court with special leave.6. The main contention which is urged before us by Mr. Andley for the appellant is that the High Court was in error in allowing the respondent to make out a new point before it at a very late stage, and he has also contended that in deciding the said point against the appellant the High Court has lost sight of a very important fact that at the time when the present suit was brought Jadav Bai was dead and there was no question of divesting the estate vested in her. Though, as we have already seen, this litigation has passed through a protracted career, it is significant that throughout these proceedings the validity of the adoption and the inability of the adopted son to divest the estate of Jadav Bai were never specifically and clearly raised; several other points of dispute arose between the parties but this aspect of the matter was never raised for a decision until the matter reached before the High Court in second appeal at the last stage of the present proceedings. It is nobodys case that on the death of Jadav Bai any other heir could claim a preferential title as against the appellant. The adoption of the appellant is held proved. It appears to be established that at the time of his adoption Jadav Bai was present and she gave consent to it. The appellant had stayed with the family all the time after his adoption and has been treated as a member of the family by Jadav Bai and his adoptive mother. It appears from the allegations in the plaint which have not been successfully traversed that the rest of the estate left by Kanakmal is in the possession of the appellant. That being so, it seems to us plain that whether or not the appellant could have divested Jadav Bais estate while she was alive, on her death he gets the property by succession, and if Kanakmals title is held proved and the other pleas raised by the respondent are rejected, there can be no effective answer to the appellants claim for possession of the suit land. That is why we think the High Court unnecessarily entered into the discussion of an academic point raised before it in that form for the first time, and in dealing with the said academic point it lost sight of the basic fact that by the death of Jadav Bai which had taken place before the suit was filed the question raised for its decision did not fall to be considered.7. Faced with this difficulty Mr. Achhru Ram, for the respondent, attempted to raise a point which has never been raised before. He sought to contend that it was a misnomer to call the appellant the adopted son of Mannilal. It was a case of a mere appointment of an heir, and according to him such an appointed heir would not take all the rights of an adopted son and would not necessarily be able to claim the estate of Kanakmal. In support of this argument Mr. Achhru Ram relied on the decision of the Privy Council in Dhanraj Joharmal v. Soni Bai, ILR 52 Cal 482: (AIR 1925 PC 118). In that case their Lordships have observed that they had no doubt on the evidence that the story about a regular Hindu or, rather, Brahminical adoption in 1903 was invented with the object of giving to an ordinary Agarwalla adoption the rights of collateral succession, and since it was found that the adoption in that form had not taken place the claim for collateral succession could not be entertained. Mr. Achhru Ram did not appear to contest the position that so far as Jains are concerned the ordinary Hindu law is to be applied to them in the absence of proof of special customs and usages varying that law. It is true that Jains do not believe that a son either natural or adopted confers any spiritual benefit on the father, and so adoption amongst Jains is a purely secular matter, but, with regard to the rights of an adopted son, unless a contrary custom or usage is established the ordinary Hindu law would apply. That is why Mr. Achhru Ram seeks to make a distinction between adoption properly so called and an appointment of an heir. In that connection he wanted us to consider decisions of the Punjab High Court in respect of appointed heirs. We have not allowed Mr. Achhru Ram to develop this point, because we think it is too late now to raise any such contention. In this plaint the appellant had set out the pedigree and claimed to be the grandson of Kanakmal and evidence was led by him to prove his adoption. It appears that Mannilal himself was the adopted son of Kanakmal. Several pleas were raised but it was never suggested that the appellant was merely appointed as an heir and that as such his case was different from that of an adopted son. We have no doubt that it would be extremely unreasonable to allow ingenuity free scope at this late stage of this litigation. As we have already observed, a very simple suit for possession has had an unduly prolonged career, and there is no justification for giving it any further lease of life.
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6. The main contention which is urged before us by Mr. Andley for the appellant is that the High Court was in error in allowing the respondent to make out a new point before it at a very late stage, and he has also contended that in deciding the said point against the appellant the High Court has lost sight of a very important fact that at the time when the present suit was brought Jadav Bai was dead and there was no question of divesting the estate vested in her.Though, as we have already seen, this litigation has passed through a protracted career, it is significant that throughout these proceedings the validity of the adoption and the inability of the adopted son to divest the estate of Jadav Bai were never specifically and clearly raised; several other points of dispute arose between the parties but this aspect of the matter was never raised for a decision until the matter reached before the High Court in second appeal at the last stage of the present proceedings. It is nobodys case that on the death of Jadav Bai any other heir could claim a preferential title as against the appellant. The adoption of the appellant is held proved. It appears to be established that at the time of his adoption Jadav Bai was present and she gave consent to it. The appellant had stayed with the family all the time after his adoption and has been treated as a member of the family by Jadav Bai and his adoptive mother. It appears from the allegations in the plaint which have not been successfully traversed that the rest of the estate left by Kanakmal is in the possession of the appellant. That being so, it seems to us plain that whether or not the appellant could have divested Jadav Bais estate while she was alive, on her death he gets the property by succession, and if Kanakmals title is held proved and the other pleas raised by the respondent are rejected, there can be no effective answer to the appellants claim for possession of the suit land. That is why we think the High Court unnecessarily entered into the discussion of an academic point raised before it in that form for the first time, and in dealing with the said academic point it lost sight of the basic fact that by the death of Jadav Bai which had taken place before the suit was filed the question raised for its decision did not fall to be considered.Faced with this difficulty Mr. Achhru Ram, for the respondent, attempted to raise a point which has never been raised before. He sought to contend that it was a misnomer to call the appellant the adopted son of Mannilal. It was a case of a mere appointment of an heir, and according to him such an appointed heir would not take all the rights of an adopted son and would not necessarily be able to claim the estate of Kanakmal. In support of this argument Mr. Achhru Ram relied on the decision of the Privy Council in Dhanraj Joharmal v. Soni Bai, ILR 52 Cal 482: (AIR 1925 PC118). In that case their Lordships have observed that they had no doubt on the evidence that the story about a regular Hindu or, rather, Brahminical adoption in 1903 was invented with the object of giving to an ordinary Agarwalla adoption the rights of collateral succession, and since it was found that the adoption in that form had not taken place the claim for collateral succession could not be entertained. Mr. Achhru Ram did not appear to contest the position that so far as Jains are concerned the ordinary Hindu law is to be applied to them in the absence of proof of special customs and usages varying that law. Itis true that Jains do not believe that a son either natural or adopted confers any spiritual benefit on the father, and so adoption amongst Jains is a purely secular matter, but, with regard to the rights of an adopted son, unless a contrary custom or usage is established the ordinary Hindu law would apply. That is why Mr. Achhru Ram seeks to make a distinction between adoption properly so called and an appointment of an heir. In that connection he wanted us to consider decisions of the Punjab High Court in respect of appointed heirs.We have not allowed Mr. Achhru Ram to develop this point, because we think it is too late now to raise any such contention. In this plaint the appellant had set out the pedigree and claimed to be the grandson of Kanakmal and evidence was led by him to prove his adoption. It appears that Mannilal himself was the adopted son of Kanakmal. Several pleas were raised but it was never suggested that the appellant was merely appointed as an heir and that as such his case was different from that of an adopted son. We have no doubt that it would be extremely unreasonable to allow ingenuity free scope at this late stage of this litigation. As we have already observed, a very simple suit for possession has had an unduly prolonged career, and there is no justification for giving it any further lease of life.
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Indian Bank and another Vs. Mahaveer Khariwal | hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench. 11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable. 12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship. | 0[ds]8. We have heard the learned counsel for the respective parties at length.It is not in dispute that in the present case the employee submitted the voluntary retirement application on 21.01.2004. In the application itself, the employee requested for waiver of three months notice and requested to deduct the salary amount of the notice period from out of the amounts payable to him by the employer on retirement. It is not in dispute and it cannot be disputed that the notice of voluntary retirement requires acceptance by the appointing authority. However, as per proviso to Sub-Regulation 2 of Regulation 29, in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said notice period. In the present case, on the 90th day vide communication dated 20.04.2004 the application of the employee for voluntary retirement was rejected without assigning any specific reasons and by observing that the employee is not eligible for voluntary retirement under Pension Regulations, 1995. The said communication was sent to the employee on the very date, i.e., 20.04.2004, however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 is concerned. However, on appeal, by the impugned judgment and order, the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the employer came to be rejected.10. On a fair reading of Regulation 29, it emerges that an employee is entitled to apply for voluntary retirement after he has completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three months in writing to the appointing authority (Regulation 29(1)). However, as per proviso to Sub-Regulation (1) of Regulation 29, Sub-Regulation (1) of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year. The said proviso shall be dealt with and considered hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench.11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable.12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship. | 0 | 3,751 | 1,531 | ### 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:
hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench. 11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable. 12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship.
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0
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and considered hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench.11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable.12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship.
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Mangal Oram & Ors Vs. State Of Orissa & Anr | argument of Mr. Gobind Das is that the acquisition of the land for the establishment of a steel plant cannot be said to be for the purpose of the development of the industry. It is not denied by the learned counsel that a steel plant constitutes an industrial undertaking and that the object of establishing a steel plant is not different from the purpose of the development of the industry as ordinarily understood. It also can not be disputed that Rourkela steel plant constitutes a big milestone in the industrial development of the country. The contention of Mr. Gobind Das, however, is that the words "development of industries" have a limited meaning as defined in the Act and the establishment of a steel plant cannot be considered to be for development of industries. The definition of "development of industries" has been given in section 2(c) of the Act. According to the definition, development of industries means and includes the construction of the Hirakud Dam and other dams and reservoirs, Hydro-Electric Projects and such other schemes or projects as the State Government may by notification from time to time, specify in this behalf. We have already mentioned above that the first notification for the acquisition of land was issued on February 22, 1954. Two days before that notification, on February 20. 1954 the Governor of Orissa issued a notification in pursuance of clause (c) of section 2 of the Act. In that notification, it was stated that the project for the establishment of a steel plant and allied and ancillary industries in the block of villages round about Rourkela shall be included within the meaning of the expression "development of industries", as defined in clause (c) of section 2 of the Act. In the face of this notification, we are of the opinion that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of "development of industries", as given in the Act. We are unable to subscribe to the submission of Mr. Gobind Das that the schemes and projects which could be the subject-matter of a notification under section 2(c) must be such as are similar to Hirakud Dam or other Hydro Electric projects. Clause (c) of section 2 confers wide powers on the State Government to notify any scheme or project as it may consider appropriate for the development of industries and we find nothing in that clause that the scheme or project which can be the subject matter of a notification must be one similar to Hirakud Dam or other dams or reservoirs or hydro-electric projects.It is then argued by Mr. Gobind Das that part of the lands which were acquired for the purpose of-steel plant and ancillary industries are being used as a civil township. It is contended that the acquired land could only be used for the steel plant and ancillary industries and not for a civil township. This contention is equally devoid of force. The establishment of a steel plant necessarily postulates the construction o f residential quarters for the workmen to be employed in the plant. In addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play-grounds, for hospitals and for residential quarters of persons opening their shops catering to the needs of the employees of the steel plant. Lands would likewise be need for post offices, banks, clubs, parks, cinemas, roads, police stations as al so for cremation and burial of the dead. Land would also be needed for a variety of other purposes and civic amenities. A township is a necessary adjunct and concomitant of a big steel plant. The fact, therefore, that part of the land which was acquired has been used for civil township would not, in our opinion, affect the validity of the acquisition of the land.4. In civil appeal 1237 of 1972, Mr. Gobind Das has also adva nced an argument that possession of the land was not taken from the appellant. We, however, find that the judgment of the High Court shows that no such contention was advanced before the High Court when the writ petition giving rise to this appeal was argued. In the circumstances, we are not inclined to permit the appellant to raise this contention for the first time in appeal before us.5. Civil appeal 1730 of 1973 arises out of writ petition to challenge the validity of a notification dated march 19, 1958 under section 4 of the Land Acquisition Act for the acquisition of 31.06 acres of land for expansion of rail facilities to serve the steel plant at Rourkela. A writ petition to challenge this notification was filed on February 3, 1973. The contention which was advanced before the High Court and has been repeated before us with a view to challenge the validity of the acquisition of this land is that fourteen years after the acquisition of the land, the railway authorities for whom the land was acquired have transferred 3.21 acres of land to the Notified Area Committee, Rourkela. The above submission, in our opinion, is without merit. According to the affidavit filed on behalf of the respondents, the above mentioned area is sought to be transferred to the Notified Area Committee because the Notified Area Committee is the appropriate body to construct and maintain the link road, bus and taxi stands and shops surrounding the railway station. The averments contained in the affidavit thus go to show that 3.21 acres of land is not being used for a purpose extraneous from that for which the land was initially acquired. Apart from that, we find that this Court has recently held in the case of Gulam Mustafa &Ors. v. State of Maharashtra & Ors. (1) that there is no principle of law by which a valid, compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration. | 0[ds]In that notification, it was stated that the project for the establishment of a steel plant and allied and ancillary industries in the block of villages round about Rourkela shall be included within the meaning of the expression "development of industries", as defined in clause (c) of section 2 of the Act. In the face of this notification, we are of the opinion that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of "development of industries", as given in the Act. We are unable to subscribe to the submission of Mr. Gobind Das that the schemes and projects which could be the subject-matter of a notification under section 2(c) must be such as are similar to Hirakud Dam or other Hydro Electric projects. Clause (c) of section 2 confers wide powers on the State Government to notify any scheme or project as it may consider appropriate for the development of industries and we find nothing in that clause that the scheme or project which can be the subject matter of a notification must be one similar to Hirakud Dam or other dams or reservoirs or hydro-electricestablishment of a steel plant necessarily postulates the construction o f residential quarters for the workmen to be employed in the plant. In addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play-grounds, for hospitals and for residential quarters of persons opening their shops catering to the needs of the employees of the steel plant. Lands would likewise be need for post offices, banks, clubs, parks, cinemas, roads, police stations as al so for cremation and burial of the dead. Land would also be needed for a variety of other purposes and civic amenities. A township is a necessary adjunct and concomitant of a big steel plant. The fact, therefore, that part of the land which was acquired has been used for civil township would not, in our opinion, affect the validity of the acquisition of thehowever, find that the judgment of the High Court shows that no such contention was advanced before the High Court when the writ petition giving rise to this appeal was argued. In the circumstances, we are not inclined to permit the appellant to raise this contention for the first time in appeal beforel 1730 ofto the affidavit filed on behalf of the respondents, the above mentioned area is sought to be transferred to the Notified Area Committee because the Notified Area Committee is the appropriate body to construct and maintain the link road, bus and taxi stands and shops surrounding the railway station. The averments contained in the affidavit thus go to show that 3.21 acres of land is not being used for a purpose extraneous from that for which the land was initially acquired. Apart from that, we find that this Court has recently held in the case of Gulam Mustafa &Ors. v. State of Maharashtra & Ors. (1) that there is no principle of law by which a valid, compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration. | 0 | 1,500 | 593 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
argument of Mr. Gobind Das is that the acquisition of the land for the establishment of a steel plant cannot be said to be for the purpose of the development of the industry. It is not denied by the learned counsel that a steel plant constitutes an industrial undertaking and that the object of establishing a steel plant is not different from the purpose of the development of the industry as ordinarily understood. It also can not be disputed that Rourkela steel plant constitutes a big milestone in the industrial development of the country. The contention of Mr. Gobind Das, however, is that the words "development of industries" have a limited meaning as defined in the Act and the establishment of a steel plant cannot be considered to be for development of industries. The definition of "development of industries" has been given in section 2(c) of the Act. According to the definition, development of industries means and includes the construction of the Hirakud Dam and other dams and reservoirs, Hydro-Electric Projects and such other schemes or projects as the State Government may by notification from time to time, specify in this behalf. We have already mentioned above that the first notification for the acquisition of land was issued on February 22, 1954. Two days before that notification, on February 20. 1954 the Governor of Orissa issued a notification in pursuance of clause (c) of section 2 of the Act. In that notification, it was stated that the project for the establishment of a steel plant and allied and ancillary industries in the block of villages round about Rourkela shall be included within the meaning of the expression "development of industries", as defined in clause (c) of section 2 of the Act. In the face of this notification, we are of the opinion that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of "development of industries", as given in the Act. We are unable to subscribe to the submission of Mr. Gobind Das that the schemes and projects which could be the subject-matter of a notification under section 2(c) must be such as are similar to Hirakud Dam or other Hydro Electric projects. Clause (c) of section 2 confers wide powers on the State Government to notify any scheme or project as it may consider appropriate for the development of industries and we find nothing in that clause that the scheme or project which can be the subject matter of a notification must be one similar to Hirakud Dam or other dams or reservoirs or hydro-electric projects.It is then argued by Mr. Gobind Das that part of the lands which were acquired for the purpose of-steel plant and ancillary industries are being used as a civil township. It is contended that the acquired land could only be used for the steel plant and ancillary industries and not for a civil township. This contention is equally devoid of force. The establishment of a steel plant necessarily postulates the construction o f residential quarters for the workmen to be employed in the plant. In addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play-grounds, for hospitals and for residential quarters of persons opening their shops catering to the needs of the employees of the steel plant. Lands would likewise be need for post offices, banks, clubs, parks, cinemas, roads, police stations as al so for cremation and burial of the dead. Land would also be needed for a variety of other purposes and civic amenities. A township is a necessary adjunct and concomitant of a big steel plant. The fact, therefore, that part of the land which was acquired has been used for civil township would not, in our opinion, affect the validity of the acquisition of the land.4. In civil appeal 1237 of 1972, Mr. Gobind Das has also adva nced an argument that possession of the land was not taken from the appellant. We, however, find that the judgment of the High Court shows that no such contention was advanced before the High Court when the writ petition giving rise to this appeal was argued. In the circumstances, we are not inclined to permit the appellant to raise this contention for the first time in appeal before us.5. Civil appeal 1730 of 1973 arises out of writ petition to challenge the validity of a notification dated march 19, 1958 under section 4 of the Land Acquisition Act for the acquisition of 31.06 acres of land for expansion of rail facilities to serve the steel plant at Rourkela. A writ petition to challenge this notification was filed on February 3, 1973. The contention which was advanced before the High Court and has been repeated before us with a view to challenge the validity of the acquisition of this land is that fourteen years after the acquisition of the land, the railway authorities for whom the land was acquired have transferred 3.21 acres of land to the Notified Area Committee, Rourkela. The above submission, in our opinion, is without merit. According to the affidavit filed on behalf of the respondents, the above mentioned area is sought to be transferred to the Notified Area Committee because the Notified Area Committee is the appropriate body to construct and maintain the link road, bus and taxi stands and shops surrounding the railway station. The averments contained in the affidavit thus go to show that 3.21 acres of land is not being used for a purpose extraneous from that for which the land was initially acquired. Apart from that, we find that this Court has recently held in the case of Gulam Mustafa &Ors. v. State of Maharashtra & Ors. (1) that there is no principle of law by which a valid, compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration.
### Response:
0
### Explanation:
In that notification, it was stated that the project for the establishment of a steel plant and allied and ancillary industries in the block of villages round about Rourkela shall be included within the meaning of the expression "development of industries", as defined in clause (c) of section 2 of the Act. In the face of this notification, we are of the opinion that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of "development of industries", as given in the Act. We are unable to subscribe to the submission of Mr. Gobind Das that the schemes and projects which could be the subject-matter of a notification under section 2(c) must be such as are similar to Hirakud Dam or other Hydro Electric projects. Clause (c) of section 2 confers wide powers on the State Government to notify any scheme or project as it may consider appropriate for the development of industries and we find nothing in that clause that the scheme or project which can be the subject matter of a notification must be one similar to Hirakud Dam or other dams or reservoirs or hydro-electricestablishment of a steel plant necessarily postulates the construction o f residential quarters for the workmen to be employed in the plant. In addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play-grounds, for hospitals and for residential quarters of persons opening their shops catering to the needs of the employees of the steel plant. Lands would likewise be need for post offices, banks, clubs, parks, cinemas, roads, police stations as al so for cremation and burial of the dead. Land would also be needed for a variety of other purposes and civic amenities. A township is a necessary adjunct and concomitant of a big steel plant. The fact, therefore, that part of the land which was acquired has been used for civil township would not, in our opinion, affect the validity of the acquisition of thehowever, find that the judgment of the High Court shows that no such contention was advanced before the High Court when the writ petition giving rise to this appeal was argued. In the circumstances, we are not inclined to permit the appellant to raise this contention for the first time in appeal beforel 1730 ofto the affidavit filed on behalf of the respondents, the above mentioned area is sought to be transferred to the Notified Area Committee because the Notified Area Committee is the appropriate body to construct and maintain the link road, bus and taxi stands and shops surrounding the railway station. The averments contained in the affidavit thus go to show that 3.21 acres of land is not being used for a purpose extraneous from that for which the land was initially acquired. Apart from that, we find that this Court has recently held in the case of Gulam Mustafa &Ors. v. State of Maharashtra & Ors. (1) that there is no principle of law by which a valid, compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration.
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THE DIRECTOR, STEEL AUTHORITY OF INDIA LIMITED Vs. ISPAT KHADAN JANTA MAZDOOR UNION | 1961 and other statutory measures which are applicable over the establishment of the appellant including various welfare schemes which provide safety and security of the workers. To say so, every establishment is under obligation to implement the mandate of law but that could not be a determining factor/denominator to test the contract agreement entered between the parties in arriving to a conclusion that such an agreement is sham, nominal or camouflage as held by the High Court in its impugned judgment.43. The High Court appears to be primarily persuaded with the issuance of a prohibition notification under Section 10(1) of the CLRA Act as one of the salient factor to indicate that the committee constituted under the Act, after examining various factors including perennial nature of work, under the CLRA Act has recommended for abolition of contract labour and accepted by the Central Government coupled with the continuation of employment of contract labour after issuance of the prohibition notification under Section 10(1) of the CLRA Act in holding that the action of the establishment was opposed to the public policy principles enshrined under Section 23 of the Indian Contract Act and taking work from the contract labour was in violation of the statutory notification dated 17 th March, 1993 and that appears to be the reason which persuaded to hold that the finding recorded by the Tribunal that contractors had full control and supervision over the work in view of the functioning of the scheme of mines was unsustainable, instead holding the total control and supervision was that of management of the appellant and the contract was sham and bogus and also the fact that in all the agreements executed between the parties, there was a provision of abolition of contract labour in the matter of work of a perennial in nature and certain other conditions of agreement in recording its satisfaction that the contract was sham and bogus.44. In our considered view, the finding recorded by the High Court under the impugned judgment is not sustainable for the reason that effect of the prohibition notification under Section 10(1) of CLRA Act has been settled by the Constitution Bench of this Court in Steel Authority of India Ltd. and Others (supra) and this Court has made it clear that neither Section 10 nor any provision in the CLRA Act provides for automatic absorption of contract labour on issuance of prohibition notification by the appropriate Government under Section 10(1) of the CLRA Act and the Tribunal in the first place being the fact finding authority has extensively examined the documentary and oral evidence which came on record and also the relationship of principal employer, contractor and contract labour and the fact that their services were terminated by the contractor after the contract labour proceeded on a strike in April 1996.45. The Tribunal also considered various other factors in extenso regarding the wage slips, identity cards and the nature of work being discharged by the contract labour subsequent to the prohibition notification dated 17 th March, 1993 and other documentary evidence which came on record and recorded the finding in return that the contract between the contractor and the employee was not sham and bogus and the workmen were not entitled for their absorption in service of the principal employer.46. To test it further, apart from the statutory compliance which every principal establishment is under an obligation to comply with, its non-compliance or breach may at best entail in penal consequences which is always for the safety and security of the employee/workmen which has been hired for discharge of the nature of job in a particular establishment. The exposition of law has been further considered in International Airport Authority of India case(supra) where the contract was to supply of labour and necessary labour was supplied by the contractor who worked under the directions, supervision and control of the principal employer, that in itself will not in any manner construe the contract entered between the contractor and contract labour to be sham and bogus per se.47. Thus, in our considered view, if the scheme of the CLRA Act and other legislative enactments which the principal establishment has to comply with under the mandate of law and taking note of the oral and documentary evidence which came on record, the finding which has been recorded by the CGIT under its award dated 16 th September, 2009 in absence of the finding of fact recorded being perverse or being of no evidence and even if there are two views which could possibly be arrived at, the view expressed by the Tribunal ordinarily was not open to be interfered with by the High Court under its limited scope of judicial review under Article 226/227 of the Constitution of India and this exposition has been settled by this Court in its various judicial precedents.48. It is true that judgment in Dena Nath and Others (supra) is in reference to failure of compliance of Section 7 and 12 and not in reference to Section 10(1) of the CLRA Act but if we look into the scheme of CLRA Act which is a complete code in itself, non-compliance or violation or breach of the provisions of the CLRA Act, it result into penal consequences as has been referred to in Sections 23 to 25 of the Act and there is no provision which would entail any other consequence other than provided under Section 23 to 25 of the Act.49. In our considered view, the Tribunal under its award dated 16 th September, 2009 has rightly arrived to the conclusion that the contract was not sham and bogus and there shall be no automatic absorption of contract labour on issuance of a prohibition notification under the CLRA Act and the High Court of Madhya Pradesh has committed a manifest error in reversing the finding of fact in return under its impugned judgment dated 6 th September, 2010 which, in our view, is not sustainable and deserves to be set aside. | 1[ds]33. The exposition of the judgment of the Constitution Bench of this Court made it clear that neither Section 10 nor any other provision in the CLRA Act provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under Section 10(1) of the CLRA Act, and consequently the principal employer is not required or is under legal obligation by operation of law to absorb the contract labour working in the establishment.34. This court in Steel Authority of India Ltd. and Others (supra) further held that on a issuance of notification under Section 10(1) of the CLRA Act, prohibiting employment of contract labour in any process, operation or other work, if an industrial dispute is raised by any contract labour in regard to condition of service, it is for the industrial adjudicator to consider whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract, or as a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of statutory benefits. If the contract is found to be sham, nominal or camouflage, then the so-called labour will have to be treated as direct employee of the principal employer and the industrial adjudicator should direct the principal employer to regularise their services in the establishment subject to such conditions as it may specify for that purpose in the facts and circumstances of the case.35. On the other hand, if the contract is found to be genuine and a prohibition notification has been issued under Section 10(1) of the CLRA Act, in respect of the establishment, the principal employer intending to employ regular workmen for the process, operation or other work of the establishment in regard to which the prohibition notification has been issued, it shall give preference to the erstwhile contract labour if otherwise found suitable, if necessary by giving relaxation of age as it appears to be in fulfilment of the mandate of Section 25(H) of the Industrial Disputes Act, 1947.These are the broad tests which have been laid down by this Court in examining the nature and control of the employer and whether the agreement pursuant to which contract labour has been engaged through contractor can be said to be sham, nominal and camouflage.39. It was not disputed in the instant case that the contract labourer who were working under a tripartite agreement were allowed to continue under the self-same agreement executed prior to the prohibition notification dated 17 th March, 1993 and extended from time to time by the competent authority even after issuance of the prohibition notification and the services of the contract workers were terminated by the contractor through whom they were engaged after they proceeded on strike in April, 1996.40. The Tribunal in its award dated 16 th September, 2009 has recorded a finding of fact based on oral and documentary evidence placed by the respective parties on record in reference to the fact whether the contract was sham and bogus which was a primary cause of adjudication and it was observed that the contractors employed the contract labour on their own and they were the appointing authority. Witnesses Mangal and Kodulal (contract labourer) were examined and in their cross-examination they have stated that before the issuance of notification dated 17 th March, 1993, they were workers of the contractor and payment was made to them by the contractors, wage slips also show that the wages were being paid by the contractors. Other witnesses also in cross-examination have supported that half of the PF amount of the workers were deposited by their respective contractors. Exh. W/39 to W/54 submitted by the contract labours are the photocopies of the identity cards, pay slips, PF slips etc. These pay slips and identity cards do not show that all 3079 workers were working after the notification dated 17 th March, 1993 without break because number of these documents are of prior to the notification. It further observed that all the agreements between the management and the contractors are entered into prior to the notification dated 17 th March, 1993 prohibiting employment of contract labour and only extended thereafter from time to time. It goes to show that there was no fresh contract thereafter ever entered between the parties. Exh. M/8 filed in R-721/05 and the evidence of the witnesses shows that the contractor had terminated the services of the contract labour in April 1996 and transferred some of the contract labourers from the place of work and was the disciplinary authority.41. It was further observed that the contractors had full control over the skilled and professional work and the SAIL had right to reject the limestone, if it was not within the specified approved grade as per terms and conditions of the agreement and after extensive appreciation of the oral/documentary evidence on record, CGIT recorded a finding of fact holding that the contract was not sham and bogus at least up to the date of issuance of the prohibition notification dated 17 th March, 1993. Although in paragraph 85 of the award the Tribunal has recorded a finding that after the issuance of prohibition notification dated 17 th March, 1993 by operation of law, it became sham and bogus but in our considered view, such a finding recorded in para 85 of the Award dated 16 th September, 2009 is not sustainable in law for the simple reason that mere issuance of the prohibition notification under CLRA Act will not make the contract/agreement to be void ab initio or bad in law and if the employees are allowed to continue in terms of the earlier agreement after the prohibition notification under CLRA Act has come into force, it may be illegal and continuance of service in the absence of any contract which stands extinguished by virtue of prohibition notification has to face the penal consequences as embedded under the scheme of CLRA Act.42. The High Court has taken note of the various provisions of Mines Creche Rules, 1966, Maternity Benefits Act, Mines Act, 1952 and Metalliferous Mines Regulations, 1961 and other statutory measures which are applicable over the establishment of the appellant including various welfare schemes which provide safety and security of the workers. To say so, every establishment is under obligation to implement the mandate of law but that could not be a determining factor/denominator to test the contract agreement entered between the parties in arriving to a conclusion that such an agreement is sham, nominal or camouflage as held by the High Court in its impugned judgment.43. The High Court appears to be primarily persuaded with the issuance of a prohibition notification under Section 10(1) of the CLRA Act as one of the salient factor to indicate that the committee constituted under the Act, after examining various factors including perennial nature of work, under the CLRA Act has recommended for abolition of contract labour and accepted by the Central Government coupled with the continuation of employment of contract labour after issuance of the prohibition notification under Section 10(1) of the CLRA Act in holding that the action of the establishment was opposed to the public policy principles enshrined under Section 23 of the Indian Contract Act and taking work from the contract labour was in violation of the statutory notification dated 17 th March, 1993 and that appears to be the reason which persuaded to hold that the finding recorded by the Tribunal that contractors had full control and supervision over the work in view of the functioning of the scheme of mines was unsustainable, instead holding the total control and supervision was that of management of the appellant and the contract was sham and bogus and also the fact that in all the agreements executed between the parties, there was a provision of abolition of contract labour in the matter of work of a perennial in nature and certain other conditions of agreement in recording its satisfaction that the contract was sham and bogus.44. In our considered view, the finding recorded by the High Court under the impugned judgment is not sustainable for the reason that effect of the prohibition notification under Section 10(1) of CLRA Act has been settled by the Constitution Bench of this Court in Steel Authority of India Ltd. and Others (supra) and this Court has made it clear that neither Section 10 nor any provision in the CLRA Act provides for automatic absorption of contract labour on issuance of prohibition notification by the appropriate Government under Section 10(1) of the CLRA Act and the Tribunal in the first place being the fact finding authority has extensively examined the documentary and oral evidence which came on record and also the relationship of principal employer, contractor and contract labour and the fact that their services were terminated by the contractor after the contract labour proceeded on a strike in April 1996.45. The Tribunal also considered various other factors in extenso regarding the wage slips, identity cards and the nature of work being discharged by the contract labour subsequent to the prohibition notification dated 17 th March, 1993 and other documentary evidence which came on record and recorded the finding in return that the contract between the contractor and the employee was not sham and bogus and the workmen were not entitled for their absorption in service of the principal employer.46. To test it further, apart from the statutory compliance which every principal establishment is under an obligation to comply with, its non-compliance or breach may at best entail in penal consequences which is always for the safety and security of the employee/workmen which has been hired for discharge of the nature of job in a particular establishment. The exposition of law has been further considered in International Airport Authority of India case(supra) where the contract was to supply of labour and necessary labour was supplied by the contractor who worked under the directions, supervision and control of the principal employer, that in itself will not in any manner construe the contract entered between the contractor and contract labour to be sham and bogus per se.47. Thus, in our considered view, if the scheme of the CLRA Act and other legislative enactments which the principal establishment has to comply with under the mandate of law and taking note of the oral and documentary evidence which came on record, the finding which has been recorded by the CGIT under its award dated 16 th September, 2009 in absence of the finding of fact recorded being perverse or being of no evidence and even if there are two views which could possibly be arrived at, the view expressed by the Tribunal ordinarily was not open to be interfered with by the High Court under its limited scope of judicial review under Article 226/227 of the Constitution of India and this exposition has been settled by this Court in its various judicial precedents.48. It is true that judgment in Dena Nath and Others (supra) is in reference to failure of compliance of Section 7 and 12 and not in reference to Section 10(1) of the CLRA Act but if we look into the scheme of CLRA Act which is a complete code in itself, non-compliance or violation or breach of the provisions of the CLRA Act, it result into penal consequences as has been referred to in Sections 23 to 25 of the Act and there is no provision which would entail any other consequence other than provided under Section 23 to 25 of the Act.49. In our considered view, the Tribunal under its award dated 16 th September, 2009 has rightly arrived to the conclusion that the contract was not sham and bogus and there shall be no automatic absorption of contract labour on issuance of a prohibition notification under the CLRA Act and the High Court of Madhya Pradesh has committed a manifest error in reversing the finding of fact in return under its impugned judgment dated 6 th September, 2010 which, in our view, is not sustainable and deserves to be set aside. | 1 | 9,876 | 2,170 | ### 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:
1961 and other statutory measures which are applicable over the establishment of the appellant including various welfare schemes which provide safety and security of the workers. To say so, every establishment is under obligation to implement the mandate of law but that could not be a determining factor/denominator to test the contract agreement entered between the parties in arriving to a conclusion that such an agreement is sham, nominal or camouflage as held by the High Court in its impugned judgment.43. The High Court appears to be primarily persuaded with the issuance of a prohibition notification under Section 10(1) of the CLRA Act as one of the salient factor to indicate that the committee constituted under the Act, after examining various factors including perennial nature of work, under the CLRA Act has recommended for abolition of contract labour and accepted by the Central Government coupled with the continuation of employment of contract labour after issuance of the prohibition notification under Section 10(1) of the CLRA Act in holding that the action of the establishment was opposed to the public policy principles enshrined under Section 23 of the Indian Contract Act and taking work from the contract labour was in violation of the statutory notification dated 17 th March, 1993 and that appears to be the reason which persuaded to hold that the finding recorded by the Tribunal that contractors had full control and supervision over the work in view of the functioning of the scheme of mines was unsustainable, instead holding the total control and supervision was that of management of the appellant and the contract was sham and bogus and also the fact that in all the agreements executed between the parties, there was a provision of abolition of contract labour in the matter of work of a perennial in nature and certain other conditions of agreement in recording its satisfaction that the contract was sham and bogus.44. In our considered view, the finding recorded by the High Court under the impugned judgment is not sustainable for the reason that effect of the prohibition notification under Section 10(1) of CLRA Act has been settled by the Constitution Bench of this Court in Steel Authority of India Ltd. and Others (supra) and this Court has made it clear that neither Section 10 nor any provision in the CLRA Act provides for automatic absorption of contract labour on issuance of prohibition notification by the appropriate Government under Section 10(1) of the CLRA Act and the Tribunal in the first place being the fact finding authority has extensively examined the documentary and oral evidence which came on record and also the relationship of principal employer, contractor and contract labour and the fact that their services were terminated by the contractor after the contract labour proceeded on a strike in April 1996.45. The Tribunal also considered various other factors in extenso regarding the wage slips, identity cards and the nature of work being discharged by the contract labour subsequent to the prohibition notification dated 17 th March, 1993 and other documentary evidence which came on record and recorded the finding in return that the contract between the contractor and the employee was not sham and bogus and the workmen were not entitled for their absorption in service of the principal employer.46. To test it further, apart from the statutory compliance which every principal establishment is under an obligation to comply with, its non-compliance or breach may at best entail in penal consequences which is always for the safety and security of the employee/workmen which has been hired for discharge of the nature of job in a particular establishment. The exposition of law has been further considered in International Airport Authority of India case(supra) where the contract was to supply of labour and necessary labour was supplied by the contractor who worked under the directions, supervision and control of the principal employer, that in itself will not in any manner construe the contract entered between the contractor and contract labour to be sham and bogus per se.47. Thus, in our considered view, if the scheme of the CLRA Act and other legislative enactments which the principal establishment has to comply with under the mandate of law and taking note of the oral and documentary evidence which came on record, the finding which has been recorded by the CGIT under its award dated 16 th September, 2009 in absence of the finding of fact recorded being perverse or being of no evidence and even if there are two views which could possibly be arrived at, the view expressed by the Tribunal ordinarily was not open to be interfered with by the High Court under its limited scope of judicial review under Article 226/227 of the Constitution of India and this exposition has been settled by this Court in its various judicial precedents.48. It is true that judgment in Dena Nath and Others (supra) is in reference to failure of compliance of Section 7 and 12 and not in reference to Section 10(1) of the CLRA Act but if we look into the scheme of CLRA Act which is a complete code in itself, non-compliance or violation or breach of the provisions of the CLRA Act, it result into penal consequences as has been referred to in Sections 23 to 25 of the Act and there is no provision which would entail any other consequence other than provided under Section 23 to 25 of the Act.49. In our considered view, the Tribunal under its award dated 16 th September, 2009 has rightly arrived to the conclusion that the contract was not sham and bogus and there shall be no automatic absorption of contract labour on issuance of a prohibition notification under the CLRA Act and the High Court of Madhya Pradesh has committed a manifest error in reversing the finding of fact in return under its impugned judgment dated 6 th September, 2010 which, in our view, is not sustainable and deserves to be set aside.
### Response:
1
### Explanation:
1961 and other statutory measures which are applicable over the establishment of the appellant including various welfare schemes which provide safety and security of the workers. To say so, every establishment is under obligation to implement the mandate of law but that could not be a determining factor/denominator to test the contract agreement entered between the parties in arriving to a conclusion that such an agreement is sham, nominal or camouflage as held by the High Court in its impugned judgment.43. The High Court appears to be primarily persuaded with the issuance of a prohibition notification under Section 10(1) of the CLRA Act as one of the salient factor to indicate that the committee constituted under the Act, after examining various factors including perennial nature of work, under the CLRA Act has recommended for abolition of contract labour and accepted by the Central Government coupled with the continuation of employment of contract labour after issuance of the prohibition notification under Section 10(1) of the CLRA Act in holding that the action of the establishment was opposed to the public policy principles enshrined under Section 23 of the Indian Contract Act and taking work from the contract labour was in violation of the statutory notification dated 17 th March, 1993 and that appears to be the reason which persuaded to hold that the finding recorded by the Tribunal that contractors had full control and supervision over the work in view of the functioning of the scheme of mines was unsustainable, instead holding the total control and supervision was that of management of the appellant and the contract was sham and bogus and also the fact that in all the agreements executed between the parties, there was a provision of abolition of contract labour in the matter of work of a perennial in nature and certain other conditions of agreement in recording its satisfaction that the contract was sham and bogus.44. In our considered view, the finding recorded by the High Court under the impugned judgment is not sustainable for the reason that effect of the prohibition notification under Section 10(1) of CLRA Act has been settled by the Constitution Bench of this Court in Steel Authority of India Ltd. and Others (supra) and this Court has made it clear that neither Section 10 nor any provision in the CLRA Act provides for automatic absorption of contract labour on issuance of prohibition notification by the appropriate Government under Section 10(1) of the CLRA Act and the Tribunal in the first place being the fact finding authority has extensively examined the documentary and oral evidence which came on record and also the relationship of principal employer, contractor and contract labour and the fact that their services were terminated by the contractor after the contract labour proceeded on a strike in April 1996.45. The Tribunal also considered various other factors in extenso regarding the wage slips, identity cards and the nature of work being discharged by the contract labour subsequent to the prohibition notification dated 17 th March, 1993 and other documentary evidence which came on record and recorded the finding in return that the contract between the contractor and the employee was not sham and bogus and the workmen were not entitled for their absorption in service of the principal employer.46. To test it further, apart from the statutory compliance which every principal establishment is under an obligation to comply with, its non-compliance or breach may at best entail in penal consequences which is always for the safety and security of the employee/workmen which has been hired for discharge of the nature of job in a particular establishment. The exposition of law has been further considered in International Airport Authority of India case(supra) where the contract was to supply of labour and necessary labour was supplied by the contractor who worked under the directions, supervision and control of the principal employer, that in itself will not in any manner construe the contract entered between the contractor and contract labour to be sham and bogus per se.47. Thus, in our considered view, if the scheme of the CLRA Act and other legislative enactments which the principal establishment has to comply with under the mandate of law and taking note of the oral and documentary evidence which came on record, the finding which has been recorded by the CGIT under its award dated 16 th September, 2009 in absence of the finding of fact recorded being perverse or being of no evidence and even if there are two views which could possibly be arrived at, the view expressed by the Tribunal ordinarily was not open to be interfered with by the High Court under its limited scope of judicial review under Article 226/227 of the Constitution of India and this exposition has been settled by this Court in its various judicial precedents.48. It is true that judgment in Dena Nath and Others (supra) is in reference to failure of compliance of Section 7 and 12 and not in reference to Section 10(1) of the CLRA Act but if we look into the scheme of CLRA Act which is a complete code in itself, non-compliance or violation or breach of the provisions of the CLRA Act, it result into penal consequences as has been referred to in Sections 23 to 25 of the Act and there is no provision which would entail any other consequence other than provided under Section 23 to 25 of the Act.49. In our considered view, the Tribunal under its award dated 16 th September, 2009 has rightly arrived to the conclusion that the contract was not sham and bogus and there shall be no automatic absorption of contract labour on issuance of a prohibition notification under the CLRA Act and the High Court of Madhya Pradesh has committed a manifest error in reversing the finding of fact in return under its impugned judgment dated 6 th September, 2010 which, in our view, is not sustainable and deserves to be set aside.
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SRIRAM HOUSING FINANCE AND INVESTMENT INDIA LTD Vs. OMESH MISHRA MEMORIAL CHARITABLE TRUST | 101, the Court shall, in accordance with such determination, – a. make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or b. pass such other order as, in the circumstances of the case, it may deem fit. 101. Question to be determined – All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. 102. Rules not applicable to transferee pendente lite – Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment- debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation – In this rule, transfer includes a transfer by operation of law. 14. From bare reading of the aforesaid provisions, it is clear that Order XXI Rule 97 deals with the resistance or obstruction to possession of immovable property by any person obtaining possession of the property against the decree holder. It empowers the decree holder to make an application complaining about such resistance or obstruction. On the other hand, Rule 99 of Order XXI deals with the right of any person other than the judgment debtor who is dispossessed by holder of a decree for possession of such property or in case where such property is sold in furtherance of execution of a decree. The said provision vests any person with a right to make an application complaining about such dispossession of immovable property in the manner prescribed above. Rule 98 and Rule 100 deal with the power of the Court to pass appropriate orders upon an application preferred under Rule 97 and Rule 99 respectively. In so far as Rule 101 is concerned, it confers jurisdiction on the Court as well as casts an obligation to determine the questions relating to right, title or interest in the property, if any, arising between parties on an application made by the concerned person under Rule 97 or Rule 99 in the same proceedings for adjudication and not in a separate suit. Lastly, Rule 102 clarifies that Rule 98 and Rule 100 shall not apply in a case where resistance or obstruction in execution of a decree for the possession of immovable property is offered by transferee pendente-lite i.e., the person to whom the property is transferred by the judgment debtor after institution of the suit in which the decree sought to be executed was passed. 15. On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the decree holder who is entitled to make an application in case where he is offered resistance or obstruction by any person. In the present case, as admitted by the appellant itself, it is a bona-fide purchaser of the property and not the decree holder. As available from the material placed on record, it is the respondent trust alongwith legal heirs of late N.D. Mishra who are the decree holders and not the appellant. Therefore, it is obvious that appellant cannot take shelter of Rule 97 as stated above to raise objections against execution of decree passed in favour of respondent. Further, Rule 99 pertains to making a complaint to the Court against dispossession of the immovable property by the person in possession of the property by the holder of a decree or purchaser thereof. It is factually not in dispute that appellant purchased the said property from Mr. Yogesh Mishra vide sale deed dated 12.04.2004 and has been in vacant and physical possession of the property since then. Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession. On the contrary, the appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, the possession of same rests with the appellant. Considering the aforesaid, the appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99. 16. Now, as stated above, applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99. Effectively, the said Rule does away with the requirement of filing of fresh suit for adjudication of disputes as mentioned above. Now, in the present case, Order XXI Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99 for the reasons stated above. Accordingly, we find no substance in the argument raised by learned counsel for the appellant. In such circumstances, Executing Court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by appellant. By doing so, the Executing Court transgressed the scope of Order XXI Rule 97 and Rule 99. Therefore, in our considered view, the High Court has rightly set aside the order of Trial Court entertaining the objections filed by appellant under Order XXI Rule 97 to Rule 102. | 0[ds]14. From bare reading of the aforesaid provisions, it is clear that Order XXI Rule 97 deals with the resistance or obstruction to possession of immovable property by any person obtaining possession of the property against the decree holder. It empowers the decree holder to make an application complaining about such resistance or obstruction. On the other hand, Rule 99 of Order XXI deals with the right of any person other than the judgment debtor who is dispossessed by holder of a decree for possession of such property or in case where such property is sold in furtherance of execution of a decree. The said provision vests any person with a right to make an application complaining about such dispossession of immovable property in the manner prescribed above. Rule 98 and Rule 100 deal with the power of the Court to pass appropriate orders upon an application preferred under Rule 97 and Rule 99 respectively. In so far as Rule 101 is concerned, it confers jurisdiction on the Court as well as casts an obligation to determine the questions relating to right, title or interest in the property, if any, arising between parties on an application made by the concerned person under Rule 97 or Rule 99 in the same proceedings for adjudication and not in a separate suit. Lastly, Rule 102 clarifies that Rule 98 and Rule 100 shall not apply in a case where resistance or obstruction in execution of a decree for the possession of immovable property is offered by transferee pendente-lite i.e., the person to whom the property is transferred by the judgment debtor after institution of the suit in which the decree sought to be executed was passed.15. On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the decree holder who is entitled to make an application in case where he is offered resistance or obstruction by any person. In the present case, as admitted by the appellant itself, it is a bona-fide purchaser of the property and not the decree holder. As available from the material placed on record, it is the respondent trust alongwith legal heirs of late N.D. Mishra who are the decree holders and not the appellant. Therefore, it is obvious that appellant cannot take shelter of Rule 97 as stated above to raise objections against execution of decree passed in favour of respondent. Further, Rule 99 pertains to making a complaint to the Court against dispossession of the immovable property by the person in possession of the property by the holder of a decree or purchaser thereof. It is factually not in dispute that appellant purchased the said property from Mr. Yogesh Mishra vide sale deed dated 12.04.2004 and has been in vacant and physical possession of the property since then. Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession. On the contrary, the appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, the possession of same rests with the appellant. Considering the aforesaid, the appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99.16. Now, as stated above, applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99. Effectively, the said Rule does away with the requirement of filing of fresh suit for adjudication of disputes as mentioned above. Now, in the present case, Order XXI Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99 for the reasons stated above. Accordingly, we find no substance in the argument raised by learned counsel for the appellant. In such circumstances, Executing Court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by appellant. By doing so, the Executing Court transgressed the scope of Order XXI Rule 97 and Rule 99. Therefore, in our considered view, the High Court has rightly set aside the order of Trial Court entertaining the objections filed by appellant under Order XXI Rule 97 to Rule 102. | 0 | 4,710 | 837 | ### 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:
101, the Court shall, in accordance with such determination, – a. make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or b. pass such other order as, in the circumstances of the case, it may deem fit. 101. Question to be determined – All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. 102. Rules not applicable to transferee pendente lite – Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment- debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation – In this rule, transfer includes a transfer by operation of law. 14. From bare reading of the aforesaid provisions, it is clear that Order XXI Rule 97 deals with the resistance or obstruction to possession of immovable property by any person obtaining possession of the property against the decree holder. It empowers the decree holder to make an application complaining about such resistance or obstruction. On the other hand, Rule 99 of Order XXI deals with the right of any person other than the judgment debtor who is dispossessed by holder of a decree for possession of such property or in case where such property is sold in furtherance of execution of a decree. The said provision vests any person with a right to make an application complaining about such dispossession of immovable property in the manner prescribed above. Rule 98 and Rule 100 deal with the power of the Court to pass appropriate orders upon an application preferred under Rule 97 and Rule 99 respectively. In so far as Rule 101 is concerned, it confers jurisdiction on the Court as well as casts an obligation to determine the questions relating to right, title or interest in the property, if any, arising between parties on an application made by the concerned person under Rule 97 or Rule 99 in the same proceedings for adjudication and not in a separate suit. Lastly, Rule 102 clarifies that Rule 98 and Rule 100 shall not apply in a case where resistance or obstruction in execution of a decree for the possession of immovable property is offered by transferee pendente-lite i.e., the person to whom the property is transferred by the judgment debtor after institution of the suit in which the decree sought to be executed was passed. 15. On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the decree holder who is entitled to make an application in case where he is offered resistance or obstruction by any person. In the present case, as admitted by the appellant itself, it is a bona-fide purchaser of the property and not the decree holder. As available from the material placed on record, it is the respondent trust alongwith legal heirs of late N.D. Mishra who are the decree holders and not the appellant. Therefore, it is obvious that appellant cannot take shelter of Rule 97 as stated above to raise objections against execution of decree passed in favour of respondent. Further, Rule 99 pertains to making a complaint to the Court against dispossession of the immovable property by the person in possession of the property by the holder of a decree or purchaser thereof. It is factually not in dispute that appellant purchased the said property from Mr. Yogesh Mishra vide sale deed dated 12.04.2004 and has been in vacant and physical possession of the property since then. Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession. On the contrary, the appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, the possession of same rests with the appellant. Considering the aforesaid, the appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99. 16. Now, as stated above, applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99. Effectively, the said Rule does away with the requirement of filing of fresh suit for adjudication of disputes as mentioned above. Now, in the present case, Order XXI Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99 for the reasons stated above. Accordingly, we find no substance in the argument raised by learned counsel for the appellant. In such circumstances, Executing Court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by appellant. By doing so, the Executing Court transgressed the scope of Order XXI Rule 97 and Rule 99. Therefore, in our considered view, the High Court has rightly set aside the order of Trial Court entertaining the objections filed by appellant under Order XXI Rule 97 to Rule 102.
### Response:
0
### Explanation:
14. From bare reading of the aforesaid provisions, it is clear that Order XXI Rule 97 deals with the resistance or obstruction to possession of immovable property by any person obtaining possession of the property against the decree holder. It empowers the decree holder to make an application complaining about such resistance or obstruction. On the other hand, Rule 99 of Order XXI deals with the right of any person other than the judgment debtor who is dispossessed by holder of a decree for possession of such property or in case where such property is sold in furtherance of execution of a decree. The said provision vests any person with a right to make an application complaining about such dispossession of immovable property in the manner prescribed above. Rule 98 and Rule 100 deal with the power of the Court to pass appropriate orders upon an application preferred under Rule 97 and Rule 99 respectively. In so far as Rule 101 is concerned, it confers jurisdiction on the Court as well as casts an obligation to determine the questions relating to right, title or interest in the property, if any, arising between parties on an application made by the concerned person under Rule 97 or Rule 99 in the same proceedings for adjudication and not in a separate suit. Lastly, Rule 102 clarifies that Rule 98 and Rule 100 shall not apply in a case where resistance or obstruction in execution of a decree for the possession of immovable property is offered by transferee pendente-lite i.e., the person to whom the property is transferred by the judgment debtor after institution of the suit in which the decree sought to be executed was passed.15. On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the decree holder who is entitled to make an application in case where he is offered resistance or obstruction by any person. In the present case, as admitted by the appellant itself, it is a bona-fide purchaser of the property and not the decree holder. As available from the material placed on record, it is the respondent trust alongwith legal heirs of late N.D. Mishra who are the decree holders and not the appellant. Therefore, it is obvious that appellant cannot take shelter of Rule 97 as stated above to raise objections against execution of decree passed in favour of respondent. Further, Rule 99 pertains to making a complaint to the Court against dispossession of the immovable property by the person in possession of the property by the holder of a decree or purchaser thereof. It is factually not in dispute that appellant purchased the said property from Mr. Yogesh Mishra vide sale deed dated 12.04.2004 and has been in vacant and physical possession of the property since then. Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession. On the contrary, the appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, the possession of same rests with the appellant. Considering the aforesaid, the appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99.16. Now, as stated above, applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99. Effectively, the said Rule does away with the requirement of filing of fresh suit for adjudication of disputes as mentioned above. Now, in the present case, Order XXI Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99 for the reasons stated above. Accordingly, we find no substance in the argument raised by learned counsel for the appellant. In such circumstances, Executing Court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by appellant. By doing so, the Executing Court transgressed the scope of Order XXI Rule 97 and Rule 99. Therefore, in our considered view, the High Court has rightly set aside the order of Trial Court entertaining the objections filed by appellant under Order XXI Rule 97 to Rule 102.
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Union Of India Vs. Jubbi And Dunia, Etc | declaring the tenant to be the landowner in respect of the land specified in the certificate. Sub-section (6) provides that on and from the date of the grant of the certificate the tenant shall become the owner of the land comprised in the tenancy and the right title and interest of the landowner in the said land shall determine. Sections 12 and 13 deal, as aforesaid, with compensation payable by the tenant. Section 14 provides that a tenant holding a tenancy exceeding 12 acres of land can surrender 1/4th of such land to the landowner whereupon the tenant would become the owner of the rest of the land of his tenancy. 7. There is nothing in these Sections which would indicate that they or any of them impliedly exempt the State or its lands from their operation. Sections 11 to 14 thus contain provisions whereunder the tenant as a result of their operation acquires the right, title and interest in the land by him as a tenant on his paying compensation to the landowner as fixed by the Compensation Officer. 8. Under Sections 15 to 24, notwithstanding the provisions of Sections 11 to 14, the State Government is empowered on a declaration made by it to acquire the right, title and interest of the landowners in the lands of any tenancy held under him by a tenant in respect of such area or at such time as may be specified by it in a notification. They also provide that upon such declaration the right, title and interest of such landowner vests in the Government. Such a landowner is entitled to compensation as provided in Section 16 and onwards on his rights vesting in the Government. In such cases the tenant becomes the tenant of the Government and has to pay rent directly to the Government and the landowner becomes henceforth exempt from payment of land revenue. Section 27 then provides that notwithstanding anything contained in Section 11 and onwards a landowner who holds land, the annual land revenue of which exceeds Rs. 125/-, the right, title and interest of such landowner in such land except such land which is under his personal cultivation shall be deemed to have been transferred and vested in the State Government. Such a landowner also is entitled to compensation determined having regard to Sections 17 and 18 in accordance with the provision of Sch. II. Sub-section (4) of Section 27 provides that the right, title and interest of the landowner conferred on the Government by sub-ss. (1) and (2) shall be transferred by the State Government on payment of compensation in accordance with Sch. I to such tenant who cultivates such land. Sub-section (5) provides for rehabilitation grant payable to such small landowners whose right, title and interest have been extinguished and who do not have any other means of livelihood. 9. A reading of Sections 11 to 27 reveals that they lay down three parts of the scheme of abolition of proprietary rights of landowners; (1) under Section 11 there would be a direct transfer to and vesting of the right, title and interest of the landowner in the occupancy tenant on his paying compensation as assessed by the Compensation Officer; (2) under Section 15 in respect of lands situate in an area specified by Government, there would be a transfer and vesting of ownership of such lands in the State Government and the tenants of such land becoming the tenants of the Government and (3) under Section 27 where the holding is large enough to have an annual assessment of over Rs. 125/-, the ownership in such lands would be first transferred and vested in the State Government and thereafter by the State Government in favour of the tenant. 10. The contention, however, was that these three ways of abolishing the landowners interest and transferring in two out of these three methods of the proprietary rights to the tenants suggest that the Act was not intended to affect the land owned or held by the Union or the State Government. This contention cannot be accepted, for, there is nothing in these provisions suggestive of their being not applicable to the State or of any distinction between the lands owned and held by citizens and lands owned and held by the State. There can therefore be no room for any assumption that the legislature had in mind any such discrimination between the State and the citizens. 11. Mr. Ganapathy Iyer drew our attention to Sections 48 and 54 (1) (g) also but we fail to see how they can be relevant for finding out whether the State is by implication exempted from the operation of the Act. 12. It is clear that the object of the Act was to abolish big landed estates and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the landowners in them and vesting such rights in the tenants. That being the paramount object of the legislature it is hardly likely that it would make any discrimination between the State and the citizen in the matter of the application of the Act. This is especially so because if such a discrimination were to be brought about through a construction suggested by the State it would result in an anomaly in the sense that whereas occupancy tenants of lands owned by citizens would have the benefit of such a beneficent legislation occupancy tenants of lands owned and held by the State would not got such benefit. An intention to briny about such a discrimination against the latter class of tenants cannot be attributed to the legislature whose avowed object was to do away in the interest of social and economic justice landlordism in the State. In view of the decision in 1967-2 SCR 170 : (AIR 1967 SC 997 ) (supra) the State cannot also claim exemption on the ground only that the Act does not expressly or by necessary implication make it binding on the State. | 1[ds]ut before we do that it would be expedient to clear the ground regarding the question of the applicability of statutes on the State and its immunity, if any, from such statutes10. The contention, however, was that these three ways of abolishing the landowners interest and transferring in two out of these three methods of the proprietary rights to the tenants suggest that the Act was not intended to affect the land owned or held by the Union or the State Government. This contention cannot be accepted, for, there is nothing in these provisions suggestive of their being not applicable to the State or of any distinction between the lands owned and held by citizens and lands owned and held by the State. There can therefore be no room for any assumption that the legislature had in mind any such discrimination between the State and the citizens11. Mr. Ganapathy Iyer drew our attention to Sections 48 and 54 (1) (g) also but we fail to see how they can be relevant for finding out whether the State is by implication exempted from the operation of the Act12. It is clear that the object of the Act was to abolish big landed estates and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the landowners in them and vesting such rights in the tenants. That being the paramount object of the legislature it is hardly likely that it would make any discrimination between the State and the citizen in the matter of the application of the Act. This is especially so because if such a discrimination were to be brought about through a construction suggested by the State it would result in an anomaly in the sense that whereas occupancy tenants of lands owned by citizens would have the benefit of such a beneficent legislation occupancy tenants of lands owned and held by the State would not got such benefit. An intention to briny about such a discrimination against the latter class of tenants cannot be attributed to the legislature whose avowed object was to do away in the interest of social and economic justice landlordism in the State. In view of the decision in 1967-2 SCR 170 : (AIR 1967 SC 997 ) (supra) the State cannot also claim exemption on the ground only that the Act does not expressly or by necessary implication make it binding on the StateTherefore, the normal construction, that an enactment applies to citizens as well as to the State unless it expressly or by necessary implication exempted the State from its operation, steered clear of all the anomalies and was consistent with the philosophy of equality enshrined in the Constitution.The position now therefore is that a statute applies to State as much it does to a citizen unless it expressly or by necessary implication exempts the State from its operation5. It is conceded that neither S. 11 nor any other provision in the Act contains any express exemption. Broadly stated, if the legislature intended to exclude the applicability of the Act to the State it could have easily stated in Section 11 itself or by a separate provision that the Act is not to be applied to the Union or to lands held by it. In the absence of such a provision, in a constitutional set up as the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union7. There is nothing in these Sections which would indicate that they or any of them impliedly exempt the State or its lands from their operation. Sections 11 to 14 thus contain provisions whereunder the tenant as a result of their operation acquires the right, title and interest in the land by him as a tenant on his paying compensation to the landowner as fixed by the Compensation Officer9. A reading of Sections 11 to 27 reveals that they lay down three parts of the scheme of abolition of proprietary rights of landowners; (1) under Section 11 there would be a direct transfer to and vesting of the right, title and interest of the landowner in the occupancy tenant on his paying compensation as assessed by the Compensation Officer; (2) under Section 15 in respect of lands situate in an area specified by Government, there would be a transfer and vesting of ownership of such lands in the State Government and the tenants of such land becoming the tenants of the Government and (3) under Section 27 where the holding is large enough to have an annual assessment of over Rs., the ownership in such lands would be first transferred and vested in the State Government and thereafter by the State Government in favour of the tenant. | 1 | 3,965 | 897 | ### 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:
declaring the tenant to be the landowner in respect of the land specified in the certificate. Sub-section (6) provides that on and from the date of the grant of the certificate the tenant shall become the owner of the land comprised in the tenancy and the right title and interest of the landowner in the said land shall determine. Sections 12 and 13 deal, as aforesaid, with compensation payable by the tenant. Section 14 provides that a tenant holding a tenancy exceeding 12 acres of land can surrender 1/4th of such land to the landowner whereupon the tenant would become the owner of the rest of the land of his tenancy. 7. There is nothing in these Sections which would indicate that they or any of them impliedly exempt the State or its lands from their operation. Sections 11 to 14 thus contain provisions whereunder the tenant as a result of their operation acquires the right, title and interest in the land by him as a tenant on his paying compensation to the landowner as fixed by the Compensation Officer. 8. Under Sections 15 to 24, notwithstanding the provisions of Sections 11 to 14, the State Government is empowered on a declaration made by it to acquire the right, title and interest of the landowners in the lands of any tenancy held under him by a tenant in respect of such area or at such time as may be specified by it in a notification. They also provide that upon such declaration the right, title and interest of such landowner vests in the Government. Such a landowner is entitled to compensation as provided in Section 16 and onwards on his rights vesting in the Government. In such cases the tenant becomes the tenant of the Government and has to pay rent directly to the Government and the landowner becomes henceforth exempt from payment of land revenue. Section 27 then provides that notwithstanding anything contained in Section 11 and onwards a landowner who holds land, the annual land revenue of which exceeds Rs. 125/-, the right, title and interest of such landowner in such land except such land which is under his personal cultivation shall be deemed to have been transferred and vested in the State Government. Such a landowner also is entitled to compensation determined having regard to Sections 17 and 18 in accordance with the provision of Sch. II. Sub-section (4) of Section 27 provides that the right, title and interest of the landowner conferred on the Government by sub-ss. (1) and (2) shall be transferred by the State Government on payment of compensation in accordance with Sch. I to such tenant who cultivates such land. Sub-section (5) provides for rehabilitation grant payable to such small landowners whose right, title and interest have been extinguished and who do not have any other means of livelihood. 9. A reading of Sections 11 to 27 reveals that they lay down three parts of the scheme of abolition of proprietary rights of landowners; (1) under Section 11 there would be a direct transfer to and vesting of the right, title and interest of the landowner in the occupancy tenant on his paying compensation as assessed by the Compensation Officer; (2) under Section 15 in respect of lands situate in an area specified by Government, there would be a transfer and vesting of ownership of such lands in the State Government and the tenants of such land becoming the tenants of the Government and (3) under Section 27 where the holding is large enough to have an annual assessment of over Rs. 125/-, the ownership in such lands would be first transferred and vested in the State Government and thereafter by the State Government in favour of the tenant. 10. The contention, however, was that these three ways of abolishing the landowners interest and transferring in two out of these three methods of the proprietary rights to the tenants suggest that the Act was not intended to affect the land owned or held by the Union or the State Government. This contention cannot be accepted, for, there is nothing in these provisions suggestive of their being not applicable to the State or of any distinction between the lands owned and held by citizens and lands owned and held by the State. There can therefore be no room for any assumption that the legislature had in mind any such discrimination between the State and the citizens. 11. Mr. Ganapathy Iyer drew our attention to Sections 48 and 54 (1) (g) also but we fail to see how they can be relevant for finding out whether the State is by implication exempted from the operation of the Act. 12. It is clear that the object of the Act was to abolish big landed estates and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the landowners in them and vesting such rights in the tenants. That being the paramount object of the legislature it is hardly likely that it would make any discrimination between the State and the citizen in the matter of the application of the Act. This is especially so because if such a discrimination were to be brought about through a construction suggested by the State it would result in an anomaly in the sense that whereas occupancy tenants of lands owned by citizens would have the benefit of such a beneficent legislation occupancy tenants of lands owned and held by the State would not got such benefit. An intention to briny about such a discrimination against the latter class of tenants cannot be attributed to the legislature whose avowed object was to do away in the interest of social and economic justice landlordism in the State. In view of the decision in 1967-2 SCR 170 : (AIR 1967 SC 997 ) (supra) the State cannot also claim exemption on the ground only that the Act does not expressly or by necessary implication make it binding on the State.
### Response:
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ut before we do that it would be expedient to clear the ground regarding the question of the applicability of statutes on the State and its immunity, if any, from such statutes10. The contention, however, was that these three ways of abolishing the landowners interest and transferring in two out of these three methods of the proprietary rights to the tenants suggest that the Act was not intended to affect the land owned or held by the Union or the State Government. This contention cannot be accepted, for, there is nothing in these provisions suggestive of their being not applicable to the State or of any distinction between the lands owned and held by citizens and lands owned and held by the State. There can therefore be no room for any assumption that the legislature had in mind any such discrimination between the State and the citizens11. Mr. Ganapathy Iyer drew our attention to Sections 48 and 54 (1) (g) also but we fail to see how they can be relevant for finding out whether the State is by implication exempted from the operation of the Act12. It is clear that the object of the Act was to abolish big landed estates and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the landowners in them and vesting such rights in the tenants. That being the paramount object of the legislature it is hardly likely that it would make any discrimination between the State and the citizen in the matter of the application of the Act. This is especially so because if such a discrimination were to be brought about through a construction suggested by the State it would result in an anomaly in the sense that whereas occupancy tenants of lands owned by citizens would have the benefit of such a beneficent legislation occupancy tenants of lands owned and held by the State would not got such benefit. An intention to briny about such a discrimination against the latter class of tenants cannot be attributed to the legislature whose avowed object was to do away in the interest of social and economic justice landlordism in the State. In view of the decision in 1967-2 SCR 170 : (AIR 1967 SC 997 ) (supra) the State cannot also claim exemption on the ground only that the Act does not expressly or by necessary implication make it binding on the StateTherefore, the normal construction, that an enactment applies to citizens as well as to the State unless it expressly or by necessary implication exempted the State from its operation, steered clear of all the anomalies and was consistent with the philosophy of equality enshrined in the Constitution.The position now therefore is that a statute applies to State as much it does to a citizen unless it expressly or by necessary implication exempts the State from its operation5. It is conceded that neither S. 11 nor any other provision in the Act contains any express exemption. Broadly stated, if the legislature intended to exclude the applicability of the Act to the State it could have easily stated in Section 11 itself or by a separate provision that the Act is not to be applied to the Union or to lands held by it. In the absence of such a provision, in a constitutional set up as the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union7. There is nothing in these Sections which would indicate that they or any of them impliedly exempt the State or its lands from their operation. Sections 11 to 14 thus contain provisions whereunder the tenant as a result of their operation acquires the right, title and interest in the land by him as a tenant on his paying compensation to the landowner as fixed by the Compensation Officer9. A reading of Sections 11 to 27 reveals that they lay down three parts of the scheme of abolition of proprietary rights of landowners; (1) under Section 11 there would be a direct transfer to and vesting of the right, title and interest of the landowner in the occupancy tenant on his paying compensation as assessed by the Compensation Officer; (2) under Section 15 in respect of lands situate in an area specified by Government, there would be a transfer and vesting of ownership of such lands in the State Government and the tenants of such land becoming the tenants of the Government and (3) under Section 27 where the holding is large enough to have an annual assessment of over Rs., the ownership in such lands would be first transferred and vested in the State Government and thereafter by the State Government in favour of the tenant.
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K. S. Nanji And Company Vs. Jatashankar Dossa And Others | agent, which is the same thing, became aware of the sale and its wrongfulness, that is to say, became aware of the fact of conversion. The defendant was unable to provide us with any materials to fix that date and therefore his plea of limitation fails altogether, because he is unable to show a date outside the period of three years which would entitle him to succeed."With great respect to the learned Judges, we hold that this case had not been correctly decided. The burden of proof, as we have explained earlier is on a plaintiff who asserts a right, and it may be, having regard to the circumstances of each case, that the onus of proof may shift to the defendant. But to say that no duty is cast upon the plaintiff even to allege the date when they had knowledge of the defendants possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also to the rules of evidence. A Division Bench of the Calcutta High Court in Kalyani Prasad Singh v. Borrea Coal Co. Ltd., AIR 1946 Cal 123 did not accept the view of the Patna High Court, but followed that of the Bombay High Court in the Bank of Bombay v. Fazulbhoy Ebrahim, 24 Bom LR 513 : (AIR 1923 Bom 155 ). In the context of the application of Art. 48 of the Limitation Act, the learned Judges of the Calcutta High Court observed at p. 127 thus :"The burden of proof rests upon the party who substantially asserts the affirmative of the issue ............ We are of opinion that the onus is upon the plaintiff in these suits to prove that the knowledge of his father was within three years of the suit."In Kaikhusroo Maneksha Talyarkhan v. Gangadas Dwarkadas, ILR 60 Bom 848 : (AIR 1936 Bom 322 ) Rangnekar, J., formulated the legal position thus at p. 860 (of ILR Bom) : (at pp. 326-327 of AIR) :"The onus is on the plaintiff to prove that he first learnt within three years of the suit that the property which he is seeking to recover was in the possession of the defendant. In other words, he has to prove that he obtained the knowledge of the defendants possession of the property within three years of the suit, and that is all. If he proves this, then to succeed in the plea of limitation the defendant has to prove that the fact that the property was in his possession became known to the plaintiff more than three years prior to the suit."We accept the said observations as representing the correct legal position on the subject.13. The appellant gave evidence to show that the encroachment was prior to 1932, but there is no acceptable evidence on their part to establish that the respondents came to know of the removal of coal by the appellant or their possession of the coal removed beyond three years prior to the suit. Learned counsel took us through the correspondence that passed between the parties and the Mining Department in 1932. But it does not prove that the respondents had knowledge of the fact that appellant had encroached upon any portion of their coal mines. Emphasis is also laid upon the fact that there was quarry system of working in the mines and a contention is advanced that quarrying is done openly and, therefore, the respondents must have had knowledge of the said fact. But the courts found from Commissioners maps that in the encroached portion, there were only underground workings and that the quarries were mostly outside the encroached area. The learned Subordinate Judge and the High Court refused to base any finding on mere probabilities without clear evidence to sustain them. We cannot, therefore, hold that the findings of the courts are vitiated by an error of law by the burden of proof having been wrongly thrown on the appellant. We accept the findings of the High Court that the respondents had knowledge of the appellants encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of the suit.14. The only other outstanding question that remains for consideration is that covered by Issue No. 7. In paragraph 11 of the plaint, the plaintiffs allege that under the Indian Mines Act and the Rules and Regulations made thereunder the plaintiffs are bound to keep a barrier of 25 feet to the south of the defendants working and, therefore, the coal that is still left in the encroached area is not by any means accessible to the plaintiffs and being thus wholly unworkable is entirely lost to them for ever. In the written statement the defendants did not deny the fact that the coal still left in the encroached area was lost to the plaintiffs, but only stated that it was purely a question of statutory obligation on the part of the plaintiffs with which the defendant had nothing to do. The learned Subordinate Judge accepted the case of the plaintiffs and held that the coal that was left in the encroached area was entirely lost to them by being rendered unworkable. The High Court accepted the finding.15. Learned counsel for the appellant contends that under the Rules the respondents could request the mining authorities to exempt them from the operation of R. 76 of the Indian Coal Mines Regulation, 1946, and if exemption was granted, they could remove the coal left by the appellant in the encroached area. This possibility of the respondents getting an exemption from the operation of the rule was not raised either before the learned Subordinate Judge or before the High Court. Nor can we hold in favour of the appellant on the basis of such a possibility. We, therefore, accept the concurrent finding of fact arrived at by the courts below in respect of this issue. | 0[ds]The answer to this question depends upon the correct delineation of the boundary line between plaintiffs leasehold and the defendants leasehold. It is common case that the southern boundary of the appellants leasehold is conterminous with the northern boundary of the respondentsboth these documents the southern boundary is shown as the northern boundary of the leasehold land of Samanta. One interesting features is that a map has been referred to in each of the documents and the said map shows that the line drawn from point A to point B is the boundary between the two leaseholds. It may be mentioned that the said boundary line is exactly the same as that found in Ex. 3(b). These documents to which the defendants predecessors were parties contain a clear admission that the boundary line between the two leaseholds, i. e., between appellants and that of the respondents is the line between A and B shows in plan Ex. 3(b). We have no doubt that if the plan annexed to Ex. C was produced by the appellant, it would have also established that the dividing line between the two leaseholds is that found in Ex. 3(b). The appellant, in our view, has suppressed the said plan and, therefore, in the circumstances we are justified to draw an inference that, if produced, it would be against appellants contention. From the aforesaid documentary evidence we hold, agreeing with the courts below, that the southern boundary of the appellants holding, which is conterminous with the northern boundary of the respondents holding is, the line between points A and B shown in Ex.pointed out that the correct point where the said four villages met would be 1680 feet only from the trijunction pillar of Lodhna, Kujama and Madhuban, whereas the point A was at a distance of 1750 feet from the said trijunctiona perusal of Ex. 1 shows that there is no reference in regard to the Western boundary to revenue records. That apart, even if 1680 feet is taken as the distance between the trijunction pillar and point A in the map, it demonstrates that the measurement given in Ex. 3 was incorrect, for there the distance was shown only as 1101 feet. But a more serious objection to the argument is that it is not permissible for a court to reconstruct the plan with reference to revenue records when the plan is self-contained and drawn tomap, Ex. 3(b), annexed to the lease deed executed in favour of the respondents predecessor-in-interest clearly demarcates the boundary line between the holdings of the appellant and the respondents, and according to that plan the disputed extent fails within the boundary of the respondents holding. The lease of the appellants predecessor, i. e., Ex. C, also refers to a map, but the appellant withheld it. In the sub-lease created by the appellant, maps were annexed and the boundary therein is in accord with that in Ex. 3(b). Those documents contain clear admissions supporting the case of the respondents. No reliance can be placed upon the recitals in Ex. 1, as it is demonstrated that the extent given in respect of the western boundary is incorrect. On the aforesaid material both the courts have held that the disputed extent of land is part of the holding of the respondents.9. It is well settled that a map referred to in a lease should be treated as incorporated in the lease and as forming part of the said document. In this case the maps accepted by us are drawn to scale and the boundary is clearly demarcated,. The courts were, therefore, certainly right in accepting the boundaries drawn in the plan without embarking upon an attempt to correct them with reference to revenue records. The question really is one of fact and we accept thethe High Court held that the burden of proof to establish knowledge on the part of the respondents beyond the prescribed time was on the appellant, it has given the finding on the assumption that the initial burden was on the respondents to prove that they had knowledge of the said encroachment only within three years thereof. There are, therefore, concurrent findings of fact on the question ofsubmission is not accurate, for, as we have pointed out, the High Court arrived at the finding of fact on the assumption that the initial burden of proof was on theevidence, therefore, prima facie proves that the respondents had knowledge of the encroachment only ingreat respect to the learned Judges, we hold that this case had not been correctly decided. The burden of proof, as we have explained earlier is on a plaintiff who asserts a right, and it may be, having regard to the circumstances of each case, that the onus of proof may shift to the defendant. But to say that no duty is cast upon the plaintiff even to allege the date when they had knowledge of the defendants possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also to the rules of evidence.The appellant gave evidence to show that the encroachment was prior to 1932, but there is no acceptable evidence on their part to establish that the respondents came to know of the removal of coal by the appellant or their possession of the coal removed beyond three years prior to the suit. Learned counsel took us through the correspondence that passed between the parties and the Mining Department in 1932. But it does not prove that the respondents had knowledge of the fact that appellant had encroached upon any portion of their coal mines. Emphasis is also laid upon the fact that there was quarry system of working in the mines and a contention is advanced that quarrying is done openly and, therefore, the respondents must have had knowledge of the said fact. But the courts found from Commissioners maps that in the encroached portion, there were only underground workings and that the quarries were mostly outside the encroached area. The learned Subordinate Judge and the High Court refused to base any finding on mere probabilities without clear evidence to sustain them. We cannot, therefore, hold that the findings of the courts are vitiated by an error of law by the burden of proof having been wrongly thrown on the appellant. We accept the findings of the High Court that the respondents had knowledge of the appellants encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of thepossibility of the respondents getting an exemption from the operation of the rule was not raised either before the learned Subordinate Judge or before the High Court. Nor can we hold in favour of the appellant on the basis of such a possibility. We, therefore, accept the concurrent finding of fact arrived at by the courts below in respect of this issue. | 0 | 4,690 | 1,276 | ### Instruction:
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agent, which is the same thing, became aware of the sale and its wrongfulness, that is to say, became aware of the fact of conversion. The defendant was unable to provide us with any materials to fix that date and therefore his plea of limitation fails altogether, because he is unable to show a date outside the period of three years which would entitle him to succeed."With great respect to the learned Judges, we hold that this case had not been correctly decided. The burden of proof, as we have explained earlier is on a plaintiff who asserts a right, and it may be, having regard to the circumstances of each case, that the onus of proof may shift to the defendant. But to say that no duty is cast upon the plaintiff even to allege the date when they had knowledge of the defendants possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also to the rules of evidence. A Division Bench of the Calcutta High Court in Kalyani Prasad Singh v. Borrea Coal Co. Ltd., AIR 1946 Cal 123 did not accept the view of the Patna High Court, but followed that of the Bombay High Court in the Bank of Bombay v. Fazulbhoy Ebrahim, 24 Bom LR 513 : (AIR 1923 Bom 155 ). In the context of the application of Art. 48 of the Limitation Act, the learned Judges of the Calcutta High Court observed at p. 127 thus :"The burden of proof rests upon the party who substantially asserts the affirmative of the issue ............ We are of opinion that the onus is upon the plaintiff in these suits to prove that the knowledge of his father was within three years of the suit."In Kaikhusroo Maneksha Talyarkhan v. Gangadas Dwarkadas, ILR 60 Bom 848 : (AIR 1936 Bom 322 ) Rangnekar, J., formulated the legal position thus at p. 860 (of ILR Bom) : (at pp. 326-327 of AIR) :"The onus is on the plaintiff to prove that he first learnt within three years of the suit that the property which he is seeking to recover was in the possession of the defendant. In other words, he has to prove that he obtained the knowledge of the defendants possession of the property within three years of the suit, and that is all. If he proves this, then to succeed in the plea of limitation the defendant has to prove that the fact that the property was in his possession became known to the plaintiff more than three years prior to the suit."We accept the said observations as representing the correct legal position on the subject.13. The appellant gave evidence to show that the encroachment was prior to 1932, but there is no acceptable evidence on their part to establish that the respondents came to know of the removal of coal by the appellant or their possession of the coal removed beyond three years prior to the suit. Learned counsel took us through the correspondence that passed between the parties and the Mining Department in 1932. But it does not prove that the respondents had knowledge of the fact that appellant had encroached upon any portion of their coal mines. Emphasis is also laid upon the fact that there was quarry system of working in the mines and a contention is advanced that quarrying is done openly and, therefore, the respondents must have had knowledge of the said fact. But the courts found from Commissioners maps that in the encroached portion, there were only underground workings and that the quarries were mostly outside the encroached area. The learned Subordinate Judge and the High Court refused to base any finding on mere probabilities without clear evidence to sustain them. We cannot, therefore, hold that the findings of the courts are vitiated by an error of law by the burden of proof having been wrongly thrown on the appellant. We accept the findings of the High Court that the respondents had knowledge of the appellants encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of the suit.14. The only other outstanding question that remains for consideration is that covered by Issue No. 7. In paragraph 11 of the plaint, the plaintiffs allege that under the Indian Mines Act and the Rules and Regulations made thereunder the plaintiffs are bound to keep a barrier of 25 feet to the south of the defendants working and, therefore, the coal that is still left in the encroached area is not by any means accessible to the plaintiffs and being thus wholly unworkable is entirely lost to them for ever. In the written statement the defendants did not deny the fact that the coal still left in the encroached area was lost to the plaintiffs, but only stated that it was purely a question of statutory obligation on the part of the plaintiffs with which the defendant had nothing to do. The learned Subordinate Judge accepted the case of the plaintiffs and held that the coal that was left in the encroached area was entirely lost to them by being rendered unworkable. The High Court accepted the finding.15. Learned counsel for the appellant contends that under the Rules the respondents could request the mining authorities to exempt them from the operation of R. 76 of the Indian Coal Mines Regulation, 1946, and if exemption was granted, they could remove the coal left by the appellant in the encroached area. This possibility of the respondents getting an exemption from the operation of the rule was not raised either before the learned Subordinate Judge or before the High Court. Nor can we hold in favour of the appellant on the basis of such a possibility. We, therefore, accept the concurrent finding of fact arrived at by the courts below in respect of this issue.
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the plan annexed to Ex. C was produced by the appellant, it would have also established that the dividing line between the two leaseholds is that found in Ex. 3(b). The appellant, in our view, has suppressed the said plan and, therefore, in the circumstances we are justified to draw an inference that, if produced, it would be against appellants contention. From the aforesaid documentary evidence we hold, agreeing with the courts below, that the southern boundary of the appellants holding, which is conterminous with the northern boundary of the respondents holding is, the line between points A and B shown in Ex.pointed out that the correct point where the said four villages met would be 1680 feet only from the trijunction pillar of Lodhna, Kujama and Madhuban, whereas the point A was at a distance of 1750 feet from the said trijunctiona perusal of Ex. 1 shows that there is no reference in regard to the Western boundary to revenue records. That apart, even if 1680 feet is taken as the distance between the trijunction pillar and point A in the map, it demonstrates that the measurement given in Ex. 3 was incorrect, for there the distance was shown only as 1101 feet. But a more serious objection to the argument is that it is not permissible for a court to reconstruct the plan with reference to revenue records when the plan is self-contained and drawn tomap, Ex. 3(b), annexed to the lease deed executed in favour of the respondents predecessor-in-interest clearly demarcates the boundary line between the holdings of the appellant and the respondents, and according to that plan the disputed extent fails within the boundary of the respondents holding. The lease of the appellants predecessor, i. e., Ex. C, also refers to a map, but the appellant withheld it. In the sub-lease created by the appellant, maps were annexed and the boundary therein is in accord with that in Ex. 3(b). Those documents contain clear admissions supporting the case of the respondents. No reliance can be placed upon the recitals in Ex. 1, as it is demonstrated that the extent given in respect of the western boundary is incorrect. On the aforesaid material both the courts have held that the disputed extent of land is part of the holding of the respondents.9. It is well settled that a map referred to in a lease should be treated as incorporated in the lease and as forming part of the said document. In this case the maps accepted by us are drawn to scale and the boundary is clearly demarcated,. The courts were, therefore, certainly right in accepting the boundaries drawn in the plan without embarking upon an attempt to correct them with reference to revenue records. The question really is one of fact and we accept thethe High Court held that the burden of proof to establish knowledge on the part of the respondents beyond the prescribed time was on the appellant, it has given the finding on the assumption that the initial burden was on the respondents to prove that they had knowledge of the said encroachment only within three years thereof. There are, therefore, concurrent findings of fact on the question ofsubmission is not accurate, for, as we have pointed out, the High Court arrived at the finding of fact on the assumption that the initial burden of proof was on theevidence, therefore, prima facie proves that the respondents had knowledge of the encroachment only ingreat respect to the learned Judges, we hold that this case had not been correctly decided. The burden of proof, as we have explained earlier is on a plaintiff who asserts a right, and it may be, having regard to the circumstances of each case, that the onus of proof may shift to the defendant. But to say that no duty is cast upon the plaintiff even to allege the date when they had knowledge of the defendants possession of the converted property and that the entire burden is on the defendant is contrary to the tenor of the article in the Limitation Act and also to the rules of evidence.The appellant gave evidence to show that the encroachment was prior to 1932, but there is no acceptable evidence on their part to establish that the respondents came to know of the removal of coal by the appellant or their possession of the coal removed beyond three years prior to the suit. Learned counsel took us through the correspondence that passed between the parties and the Mining Department in 1932. But it does not prove that the respondents had knowledge of the fact that appellant had encroached upon any portion of their coal mines. Emphasis is also laid upon the fact that there was quarry system of working in the mines and a contention is advanced that quarrying is done openly and, therefore, the respondents must have had knowledge of the said fact. But the courts found from Commissioners maps that in the encroached portion, there were only underground workings and that the quarries were mostly outside the encroached area. The learned Subordinate Judge and the High Court refused to base any finding on mere probabilities without clear evidence to sustain them. We cannot, therefore, hold that the findings of the courts are vitiated by an error of law by the burden of proof having been wrongly thrown on the appellant. We accept the findings of the High Court that the respondents had knowledge of the appellants encroachment of their coal mines only in the year 1941 which was within three years of the date of the filing of thepossibility of the respondents getting an exemption from the operation of the rule was not raised either before the learned Subordinate Judge or before the High Court. Nor can we hold in favour of the appellant on the basis of such a possibility. We, therefore, accept the concurrent finding of fact arrived at by the courts below in respect of this issue.
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PARADEEP PHOSPHATES LIMITED Vs. STATE OF ORISSA | the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case, the grievance of the Trade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the High Court. 11. Undoubtedly, it is a cardinal principle of law that beneficial laws should be construed liberally. The Industrial Dispute Act, 1947 is one of the welfare legislations which intends to provide and protect the benefits of the employees. Hence, it shall be interpreted in a liberal and broad manner so that maximum benefits could reach to the employees. Any attempt to do strict interpretation would undermine the intention of the legislature. In a catena of cases, this Court has held that the welfare legislation shall be interpreted in a liberal way. 12.The grievance of the appellant-Company before this Court is that the increase in the superannuation age of the employees was temporary in nature in order to combat the losses and in no circumstances, it can be said that withdrawal of it amounts to withdrawal of customary concession or privilege or change in usage. Eighth clause of the Fourth Schedule says“withdrawal of any customary concession or privilege or change in usage”. The whole dispute revolves around the interpretation of the terms customary concession, privilege or change in usage. In the instant case, we are mainly concerned with the term ‘privilege’. The word“privilege”as such is not defined in the Act. In the absence of statutory definition, we have to take recourse of the dictionary or general meaning of the term“privilege”. The Dictionary meaning of the word privilege means a“special right, advantage or immunity granted or available only to a particular person or ground”. In other words, a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of others. 13. It is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sector employees. At this juncture, the Division Bench of the High Court held as under: “However the facts of this case is little bit different because the necessary modification has not been incorporated either in the Service Rules or in the Certified Standing Order enhancing the age of superannuation from 58 years to 60 years, but the Central Government being the competent authority has directed the Board of Directors to enhance the age of superannuation and accordingly it has been enhanced in the year 1998 and thereafter it has been reduced vide order dtd 17.7.2002 by the same process, hence we are of the considered view that by passing the order dtd 17.7.2002 the privilege has been granted to the workmen has been recalled by altering the same by reducing the age of superannuation from 60 years to 58 years is alteration which is detrimental to the interest of the workmen.” 14. No doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of the appellant-Company then it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the Constitutional mandate. 15. Moreover, the contention of the appellant-Company that the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to the appellant-Company to act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate of law. 16. To sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes of law. 17. In view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it. | 0[ds]At the first sight of the provision, prima facie, it appears that the employer is bound to give minimum 21notice to the employee if employer intends to change any material terms of service. Section 9A of the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case,grievance of theTrade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the HighIt is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sectorNo doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of thethen it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the ConstitutionalMoreover, the contention of thethat the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to theto act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate ofTo sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes ofIn view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it. | 0 | 2,746 | 646 | ### Instruction:
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the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case, the grievance of the Trade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the High Court. 11. Undoubtedly, it is a cardinal principle of law that beneficial laws should be construed liberally. The Industrial Dispute Act, 1947 is one of the welfare legislations which intends to provide and protect the benefits of the employees. Hence, it shall be interpreted in a liberal and broad manner so that maximum benefits could reach to the employees. Any attempt to do strict interpretation would undermine the intention of the legislature. In a catena of cases, this Court has held that the welfare legislation shall be interpreted in a liberal way. 12.The grievance of the appellant-Company before this Court is that the increase in the superannuation age of the employees was temporary in nature in order to combat the losses and in no circumstances, it can be said that withdrawal of it amounts to withdrawal of customary concession or privilege or change in usage. Eighth clause of the Fourth Schedule says“withdrawal of any customary concession or privilege or change in usage”. The whole dispute revolves around the interpretation of the terms customary concession, privilege or change in usage. In the instant case, we are mainly concerned with the term ‘privilege’. The word“privilege”as such is not defined in the Act. In the absence of statutory definition, we have to take recourse of the dictionary or general meaning of the term“privilege”. The Dictionary meaning of the word privilege means a“special right, advantage or immunity granted or available only to a particular person or ground”. In other words, a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of others. 13. It is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sector employees. At this juncture, the Division Bench of the High Court held as under: “However the facts of this case is little bit different because the necessary modification has not been incorporated either in the Service Rules or in the Certified Standing Order enhancing the age of superannuation from 58 years to 60 years, but the Central Government being the competent authority has directed the Board of Directors to enhance the age of superannuation and accordingly it has been enhanced in the year 1998 and thereafter it has been reduced vide order dtd 17.7.2002 by the same process, hence we are of the considered view that by passing the order dtd 17.7.2002 the privilege has been granted to the workmen has been recalled by altering the same by reducing the age of superannuation from 60 years to 58 years is alteration which is detrimental to the interest of the workmen.” 14. No doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of the appellant-Company then it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the Constitutional mandate. 15. Moreover, the contention of the appellant-Company that the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to the appellant-Company to act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate of law. 16. To sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes of law. 17. In view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it.
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At the first sight of the provision, prima facie, it appears that the employer is bound to give minimum 21notice to the employee if employer intends to change any material terms of service. Section 9A of the Act is a provision in consonance with the Constitutional mandate which assures the protection of principles of natural justice i.e., no one shall be condemned unless heard. For the guidance, legislature prescribed the Fourth Schedule and it is clearly mentioned in Section 9A of the Act that before changing either of the things as envisaged in the Fourth Schedule, prior notice must be given to the employee. In the instant case,grievance of theTrade Union before the Tribunal was that withdrawal of the age of superannuation i.e., restoration of the age from 60 years to 58 years, amounts to contravention of Clause 8 of the Fourth Schedule, hence, employer was bound to give prior notice which employer cannot escape. Therefore, the action of the employer is bad in law and liable to be set aside which was eventually upheld by the Tribunal and the HighIt is admitted position that the Board of Directors took the decision of enhancement of age of retirement and it came into force with retrospective effect from 27.05.1998 as mentioned in the order dated 19.11.1998. Though, this decision implemented without the amendment in the Standing Orders and Rules, yet impliedly it got the force as a service condition since it directly relates with the service condition of the employees. Age of superannuation is an integral part of the service condition of the employee. Also, enhancement of superannuation age would impliedly amount to a privilege since it was provided particularly for the central public sectorNo doubt, the enhancement of the superannuation age was temporary in nature in order to achieve certain objectives and also it is not deniable that yet employees would be governed by the Service Rules and the Certified Standing Orders which were not amended. However, if we allow the plea of thethen it would defeat the object of legislature because legislature could never have intended that employees would be condemned without giving them right of reasonable hearing. Naturally, every employee is under the expectation that before reducing his superannuation age, he would be given a proper chance to be heard. Right to work is a vital right of every employee and in our view, it shall not be taken away without giving reasonable opportunity of being heard otherwise it would be an act of violation of the ConstitutionalMoreover, the contention of thethat the object of enhancement of superannuation age was just to save the industries from huge losses, therefore, it does not violate any statutory right of the employees, cannot be sustained in the eyes of law and also it does not give the license to theto act in contravention of law since it is a cannon of law that everyone is expected to act as per the mandate ofTo sum up, we are of the view that at the very moment when the order of enhancement of superannuation of the employees came into force though temporary in nature, it would amount to privilege to employees since it is a special right granted to them. Hence, any unilateral withdrawal of such privilege amounts to contravention of Section 9A of the Act and such act of the employer is bad in the eyes ofIn view of above detailed discussion, we are of the considered view that there is no error in the impugned judgment of the High Court, hence, we are not inclined to interfere in it.
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P. Venkataswami and Another Vs. D.S. Ramireddy and Another | dispute being which of the parties did it, was clear indication that the land was cultivable and as such it could not be treated as assessed waste. However, the High Court, relying on a Full Bench decision of the Madras High Court in Periannan v. A. S. Amman Kovil (AIR 1952 Mad 323 : ILR 1952 Mad 741 : (1952) 1 MLJ 71 ) held that the test employed by the tribunal that the landholder should prove that he had been personally cultivating the land was not the proper test and that it was sufficient if he was able to show that there was an intention to cultivate or resume the land for cultivation. On these findings the High Court set aside the orders of the tribunal and directed the tribunal to dispose of the appeals afresh in the light of the observations made in its judgment. 4. It is the case of both parties that the land is cultivable and cannot be treated as assessed waste. It would appear that the High Court also agreed with the tribunal that the land was cultivable which means that the High Court affirmed the order of the tribunal allowing the appeal preferred to it by the appellants before us, and Civil Revision Petition No. 807 of 1966 should have been disposed of accordingly. Therefore, the order of the High Court directing the tribunal to hear afresh also this appeal seems to be an obvious mistake. The matter is, however, further complicated by the statement made by the appellants in their special leave petition that the intended appeal was against the order passed in Civil Revision Petition No. 807 of 1966. On the judgment of the High Court the matter that remained to be disposed of was the first respondents claim for a ryotwari patta which was the subject-matter of the appeal to the tribunal preferred by the first respondent. On reading of the petition it is plain that the evidence of the appellants was really against the order remitting the case of the first respondent to the tribunal for a fresh hearing; the tribunal, as already stated, had decided against the first respondent. The present appeal appears to us to be directed against the common judgment of the High Court, limited to that part of it which deals with the claim of the first respondent, and the reference to the Revision Case No. 807 only, it seems, as Mr. Jayaram, learned for the appellants submitted, was a slip. For the first respondent Mr. Rao took an objection that the appellants before us were not parties in Civil Revision Case No. 15 of 1966 and that, as such, they could not appeal against the order passed in the case. The appellants who had filed objections to the first respondents application for a ryotwari patta might properly have been parties to the appeal the first respondent had filed before the tribunal and, though they were not impleaded as parties, the tribunal appears to have disposed of the appeal after hearing them. The appellants thus were entitled to be made parties in the in the Civil Revision Petition No. 15 of 1966. However, it appears that even in the High Court they heard not only on the character of the land which formed the subject-matter of Civil Revision Case No. 807 of 1966 but also on the question whether the first respondent was entitled to a ryotwari patta which was the controversy in Civil Revision Petition No. 15 of 1966. We therefore decided to hear the appeal on merits. 5. The only question that arises for decision is whether the High Court was right in holding that the requirements of Section 13(b)(iii) of the Act is satisfied if the landholder is able to show that there was an intention to cultivate or resume the land for cultivation. The High Court directed the tribunal to reconsider the question from this aspect. For the view it had taken, the High Court relied on the Full Bench decision of the Madras High Court in Periannan v. A. S. Amman Kovil (supra). The Madras Full Bench decision on this point is based on a construction of Section 3(10) of the Madras Estates Land Act, 1908. This Court in T. S. Pl. P. Chidambaram v. T. K. B. Santhanaramaswami Odayar ((1968) 2 SCR 754 : AIR 1968 SC 1005 ) construing the same Section 3(10) which defines private land held at pages 765-766 of the report : It seems to us that the definition read as a whole indicates clearly that the ordinary test for private land is the test of retention by the landlord for his personal use and cultivation by him or under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the landholder without losing their distinctive character; but it is not the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short term leases. Having thus stated the law, this Court dismissed the appeal with the observation that in the present case there is no proof that the lands were ever directly cultivated by the landholder. Thus even on the provisions of the Madras Estates Land Act, 1908 considered by the Madras Full Bench, this Court appears to have taken a different view. Apart from this, the provision we are concerned with namely Section 13(b)(iii) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, requires as a condition that the landholder has cultivated such lands himself, by his own servants or hired labour. We are unable to agree that the words has cultivated could imply a mere intention to cultivate. In our opinion, in view of the clear terms of Section 13(b)(iii) there is no warrant for a reconsideration of the question by the tribunal. | 1[ds]Having thus stated the law, this Court dismissed the appeal with the observation that in the present case there is no proof that the lands were ever directly cultivated by the landholder. Thus even on the provisions of the Madras Estates Land Act, 1908 considered by the Madras Full Bench, this Court appears to have taken a different view. Apart from this, the provision we are concerned with namely Section 13(b)(iii) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, requires as a condition that the landholder has cultivated such lands himself, by his own servants or hired labour. We are unable to agree that the words has cultivated could imply a mere intention to cultivate. In our opinion, in view of the clear terms of Section 13(b)(iii) there is no warrant for a reconsideration of the question by the tribunal. | 1 | 2,143 | 174 | ### Instruction:
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dispute being which of the parties did it, was clear indication that the land was cultivable and as such it could not be treated as assessed waste. However, the High Court, relying on a Full Bench decision of the Madras High Court in Periannan v. A. S. Amman Kovil (AIR 1952 Mad 323 : ILR 1952 Mad 741 : (1952) 1 MLJ 71 ) held that the test employed by the tribunal that the landholder should prove that he had been personally cultivating the land was not the proper test and that it was sufficient if he was able to show that there was an intention to cultivate or resume the land for cultivation. On these findings the High Court set aside the orders of the tribunal and directed the tribunal to dispose of the appeals afresh in the light of the observations made in its judgment. 4. It is the case of both parties that the land is cultivable and cannot be treated as assessed waste. It would appear that the High Court also agreed with the tribunal that the land was cultivable which means that the High Court affirmed the order of the tribunal allowing the appeal preferred to it by the appellants before us, and Civil Revision Petition No. 807 of 1966 should have been disposed of accordingly. Therefore, the order of the High Court directing the tribunal to hear afresh also this appeal seems to be an obvious mistake. The matter is, however, further complicated by the statement made by the appellants in their special leave petition that the intended appeal was against the order passed in Civil Revision Petition No. 807 of 1966. On the judgment of the High Court the matter that remained to be disposed of was the first respondents claim for a ryotwari patta which was the subject-matter of the appeal to the tribunal preferred by the first respondent. On reading of the petition it is plain that the evidence of the appellants was really against the order remitting the case of the first respondent to the tribunal for a fresh hearing; the tribunal, as already stated, had decided against the first respondent. The present appeal appears to us to be directed against the common judgment of the High Court, limited to that part of it which deals with the claim of the first respondent, and the reference to the Revision Case No. 807 only, it seems, as Mr. Jayaram, learned for the appellants submitted, was a slip. For the first respondent Mr. Rao took an objection that the appellants before us were not parties in Civil Revision Case No. 15 of 1966 and that, as such, they could not appeal against the order passed in the case. The appellants who had filed objections to the first respondents application for a ryotwari patta might properly have been parties to the appeal the first respondent had filed before the tribunal and, though they were not impleaded as parties, the tribunal appears to have disposed of the appeal after hearing them. The appellants thus were entitled to be made parties in the in the Civil Revision Petition No. 15 of 1966. However, it appears that even in the High Court they heard not only on the character of the land which formed the subject-matter of Civil Revision Case No. 807 of 1966 but also on the question whether the first respondent was entitled to a ryotwari patta which was the controversy in Civil Revision Petition No. 15 of 1966. We therefore decided to hear the appeal on merits. 5. The only question that arises for decision is whether the High Court was right in holding that the requirements of Section 13(b)(iii) of the Act is satisfied if the landholder is able to show that there was an intention to cultivate or resume the land for cultivation. The High Court directed the tribunal to reconsider the question from this aspect. For the view it had taken, the High Court relied on the Full Bench decision of the Madras High Court in Periannan v. A. S. Amman Kovil (supra). The Madras Full Bench decision on this point is based on a construction of Section 3(10) of the Madras Estates Land Act, 1908. This Court in T. S. Pl. P. Chidambaram v. T. K. B. Santhanaramaswami Odayar ((1968) 2 SCR 754 : AIR 1968 SC 1005 ) construing the same Section 3(10) which defines private land held at pages 765-766 of the report : It seems to us that the definition read as a whole indicates clearly that the ordinary test for private land is the test of retention by the landlord for his personal use and cultivation by him or under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the landholder without losing their distinctive character; but it is not the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short term leases. Having thus stated the law, this Court dismissed the appeal with the observation that in the present case there is no proof that the lands were ever directly cultivated by the landholder. Thus even on the provisions of the Madras Estates Land Act, 1908 considered by the Madras Full Bench, this Court appears to have taken a different view. Apart from this, the provision we are concerned with namely Section 13(b)(iii) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, requires as a condition that the landholder has cultivated such lands himself, by his own servants or hired labour. We are unable to agree that the words has cultivated could imply a mere intention to cultivate. In our opinion, in view of the clear terms of Section 13(b)(iii) there is no warrant for a reconsideration of the question by the tribunal.
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Having thus stated the law, this Court dismissed the appeal with the observation that in the present case there is no proof that the lands were ever directly cultivated by the landholder. Thus even on the provisions of the Madras Estates Land Act, 1908 considered by the Madras Full Bench, this Court appears to have taken a different view. Apart from this, the provision we are concerned with namely Section 13(b)(iii) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, requires as a condition that the landholder has cultivated such lands himself, by his own servants or hired labour. We are unable to agree that the words has cultivated could imply a mere intention to cultivate. In our opinion, in view of the clear terms of Section 13(b)(iii) there is no warrant for a reconsideration of the question by the tribunal.
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State Of Rajasthan And Anrs Vs. Rajasthan Chemist Association | fixtures. Nor can the builder reclaim them if they have been subsequently severed from the soil by the building owner or anyone else. The principle was shortly and clearly stated by Blackburn J. in Appleby v. Meyers(1867 LR 2 CP 651): Materials worked by one into the property of another become part of that property. This is equally true whether it be fixed or movable property. Bricks built into a wall become part of the house, thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship under repair, become part of the coat or the ship."40. We are surprised at the attitude of the States which have put forward the plea that on the passing of the 46th Amendment the Constitution had conferred on the States a larger freedom than what they had before in regard to their power to levy sales tax under Entry 54 of the State List. The 46th Amendment does no more than making it possible for the States to levy sales tax on the price of goods and materials used in works contracts as if there was a sale of such goods and materials. We do not accept the argument that sub-clause (b) of Article 366(29-A) should be read as being equivalent to a separate entry in List II of the Seventh Schedule to the Constitution enabling the States to levy tax on sales and purchases independent of Entry 54 thereof. As the Constitution exists today the power of the States to levy taxes on sales and purchases of goods including the "deemed" sales and purchases of goods under clause (29-A) of Article 366 is to be found only in Entry 54 and not outside it. We may recapitulate here with observations of the Constitution Bench in the case of Bengal Immunity Company Ltd. v. State of Bihar (1955 (2) SCR 603 ) in which this Court has held that the operative provisions of the several parts of Article 286 which imposes restrictions on the levy of sales tax by the States are intended to deal with different topics and one could not be projected or read into another and each one of them has to be obeyed while any sale or purchase is taxed under Entry 54 of the State List." 63. In Bhopal Sugar Industries v. D.B. Dube (AIR 1964 SC 1037 ) it was noted as follows: 5. In Gannon Dunkerley & Companys case ([1959] S.C.R. 379.), this Court was called upon to consider whether in a building contract which is one, entire and indivisible, there is sale of goods. It was held by the Court that the Provincial Legislature was not competent under Entry 48, List II, Sch. VII of the Government of India Act, 1935, to impose tax on the supply of materials used in such a contract treating it as a sale. The decision of the Court did not rest upon any peculiar character of a building contract. It was held on the larger ground canvassed in that case, that the expression sale of goods within the meaning of relevant legislative entry had the same connotation as sale of goods in the Indian Sale of Goods Act, 1930, and therefore the State Legislature had no power to enact legislation to levy tax under Entry 48 of List II in respect of transactions which were not of the nature of sales of goods strictly so called; and a building contract not being a transaction in which there was a sale of materials by the contractor who constructed the building, the State was not competent to enact legislation to impose tax on the supply of materials used in a building contract treating it as a sale. It was therefore, held that the definition of sale in the Madras General Sales Tax Act IX of 1939 was to the extent of the extension invalid.6. In Gannon Dunkerley & Companys case ([1999] S.C.R. 379.), the validity of s. 2(h)(ii) of the Madras General Sales Tax Act, 1939, as amended by Act XXV of 1947, in so far as it included goods included in a works contract fell to be determined, in the light of the competence of the Provincial Legislature under Entry 48, List II, in Seventh Schedule of the Government of India Act, 1935. Under the Constitution the relevant entry conferring legislative power upon States to tax sale of goods in Entry 54, List II. As the scheme of division of legislative power under the Constitution has remained unaltered, the principle of Gannon Dunkerleys case ([1999] S.C.R. 379.), applies in adjudging the validity of the provisions of the Madhya Pradesh Act 4 of 1958.7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Schedule VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in Section 2(1) "and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale" which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Schedule VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declared invalid." 64. The traditional concept of sale was stressed upon and reference was made to M/s Gannon Dunkerleys case (supra) for the purpose of interpreting true import of the expression "sale of goods". 65. | 0[ds]the first point of sale in the State of Rajasthan in most cases which attracts levy of sales tax is by the wholesale distributors to the retailers and not by retailers to end consumers when alone MRP can be charged. Under the Weights and Measures Act and the provisions of Drug Price Control Order, 1995 (in short Control Order), issued by the Central Government under Section 3 of the Essential Commodities Act, 1955 (in short the Essential Commodities Act), the maximum retail price is determined in the case of Scheduled Formulations only. On the other hand, MRP is required to be displayed on the label of container as well as package in respect of all drugs whether scheduled or non scheduled formulations. Mention of price on the package under the concerned provisions is the MRP and not the price necessarily or actually charged at the end sale for any transaction of sale of medicines in the State. The first sale within the State which alone is taxable is in reality at much lesser price than the MRP printed and the same is paid or payable on contractual basis. Under the Control Order the margin at which the medicines are to be sold to retailer has been fixed at a minimum level, that is to say, unless otherwise permitted, a formulation has to be sold to a retailer keeping at least 16% margin in the case of scheduled drugs. Thus by devising aforesaid legal fiction for deeming an artificial sale price for levy of tax having no nexus to the taxable event i.e. transactions of sale of goods at a money consideration paid or payable as defined under the Sales Act, is beyond the legislative competence of the legislature in the State, and therefore the provision isState on the other hand took the stand that what is to be the measure of tax on a sale is within the domain of the State Legislature. Under the impugned provision, tax is levied on a completed sale within the meaning of Section 4 of the Sales Act. However, in what manner the charge is to be levied is a matter of details which can be worked out by Legislation. The fact that maximum retail price is to be determined statutorily and the State Legislature has taken into account the fact that the actual consideration at the first point tax may be lesser than the maximum retail price that may be charged ultimately from the consumer at the last point sale as provided for abatement of MRP by reducing therefrom the sum at prescribed rates of abatement for the purpose of levy of tax, it provides sound basis for uniform liability in the State on such transaction. The levy of tax cannot be said to be wanting in nexus with the taxing event. Therefore, the impugned provisions and the Notifications cannot be said to be ultra vires any provision of the Constitution. It was however not disputed that but for taking the MRP as a basis to provide measure of tax, no fictional price can be fixed as a measure of tax on sale ofprincipal contention about the invalidating of the basis of the measure of tax envisaged under section 4A of the Act as inserted vide Finance Act, 2004 is that while it levies taxes on the sale transaction carried on by the manufacturer or wholesalers or distributor the measure with which total turnover is to be determined is not part of the sale which attracts tax but its premise is to be found on subsequent sale which, under the scheme of single point tax is not excisable to tax at all. The MRP which a wholesaler can charge in respect of scheduled formulations too is fixed by Control Order. In respect of scheduled formulations wholesaler is required to leave at least 16% margin in the MRP for the retailers and he is entitled to retain not more than 8% profit on the purchase price. There being statutory prohibition against the wholesalers to charge MRP from its buyer, the maximum retail price fixed on the packet has no rational connection with the taxable sale effected by the wholesalers and which becomes subject matter of charge as a first point tax. In such event, there exists no nexus between the measure of levy and subject ofthe context of meaning assigned to expression sale of goods or price or consideration element of such sale of goods as taxable event, the conclusion that can fairly be reached is that for the taxing event of sale, if the price is to be the basis for measuring tax, it must relate to actual transaction of sale that become subject of tax and not to a different transaction that may take place in future at athe contention of Revenue that the retail sale price likely to be received when such transaction takes place is taken only as a basis to provide measure of levying tax on a completed transaction between wholesalers and retailer would make it suffer from basic fallacy of importing the composition of sale which has not come into existence to determine tax which is fixed as soon as the taxable sale is4A of the Act which projects itself as an exception to Section 4, creates a legal fiction in respect of price of subject sale, on which rate of tax is to be applied. But levy of tax remains single point levy in a series of sales. Point of taxable sale remains the first point sale i.e. from the manufacturer/distributor or the wholesaler to the retailer. The tax is to be charged on turnover of the Assessment Year in aggregate. "Turnover" is defined under Section 2(44) and "Taxable Turnover" under Section 2(42) of the Act. For the taxable event that has occurred, the amount received or receivable is assumed to be different from which is neither received nor receivable and that amount which neither flows from the Control Order, nor which flows from buyer to seller under the contract but is relatable to a transaction of sale by a retailer which may not have come into existence. For the present, the price to which rate of tax is sought to be applied to a sale by a wholesaler to a retailer is neither the price agreed upon by the parties to the contract of taxable sale to which charge is attracted nor flows from the Control Order under which also, it is the price of formulation before end sale is to be determined within prescribedcharging Section 4 stipulates that the tax payable by a dealer under the Act shall be at single point in the series of sales by successive dealers, as may be prescribed and shall be levied at such rates not exceeding fifty per cent on the taxable turnover, as may be notified by the State Government in the Official Gazette. This shows that there is no scope for multi point levy of tax and the tax is levied on the first point sale within the State in a series of sales and tax is leviable at rate applied to aggregate of price received or receivable by the dealer on such4A does not become workable unless read along with definition of "turnover" and "taxableof the two sections came up before Andhra Pradesh High Court. The said Court while upholding the validity of the Act read down the Section 44AC of the Act and held it only to be an adjunct to Section 206C and to explain provision of Section 206C and not to dispense with the regular assessment in accordance with the provisions of the I.T. Act. It was held that the subject matter of tax vis. income cannot be determined notionally by making such specific provisions when in all other cases only the real income to be computed in accordance with provision of Section 28 to Section 43C. This Court noted that one of the contentions raised in the petition was that tax is levied on "hypothetical income" and not on "real income". In other words, the determination of "real income" was held to be the statutorySection 4A is designed to bring a levy into existence which is divorced from the"sale" subject to tax under the Act, it is beyond legislative competence under Entry 54 of List II of Seventh Schedule. The notification to the extent it intends to levy tax on first point sale with reference to price which could be charged in respect of a subsequent sale which has not come into existence at the time liability to tax arise and is determinedis unsustainable on thatthe decision in Ganga Sugar case (supra) at first flush appears to be supporting the stand of the appellants, on a deeper scrutiny it is crystal clear that the said decision was rendered on peculiar facts of the case. The three challenges as culled out from paragraphs 22, 23 and 25 of the judgment make the position clear that there was no discussion in the background of Entry 54. Para 16 of the judgment traced the history of levy on sugarcane and 40 years old practice of levy on sugarcane was linked with weight. It was significantly noted that it was in the background of "peculiar circumstances of sugarcane economy". The logic cannot be applied to the facts of the present case.We are surprised at the attitude of the States which have put forward the plea that on the passing of the 46th Amendment the Constitution had conferred on the States a larger freedom than what they had before in regard to their power to levy sales tax under Entry 54 of the State List. The 46th Amendment does no more than making it possible for the States to levy sales tax on the price of goods and materials used in works contracts as if there was a sale of such goods and materials. We do not accept the argument that(b) of Articleshould be read as being equivalent to a separate entry in List II of the Seventh Schedule to the Constitution enabling the States to levy tax on sales and purchases independent of Entry 54 thereof. As the Constitution exists today the power of the States to levy taxes on sales and purchases of goods including the "deemed" sales and purchases of goods under clauseof Article 366 is to be found only in Entry 54 and not outside it. We may recapitulate here with observations of the Constitution Bench in the case of Bengal Immunity Company Ltd. v. State of Bihar (1955 (2) SCR 603 ) in which this Court has held that the operative provisions of the several parts of Article 286 which imposes restrictions on the levy of sales tax by the States are intended to deal with different topics and one could not be projected or read into another and each one of them has to be obeyed while any sale or purchase is taxed under Entry 54 of the StateBhopal Sugar Industries v. D.B. Dube (AIR 1964 SC 1037 ) it was noted asIn Gannon Dunkerley & Companys case ([1959] S.C.R. 379.), this Court was called upon to consider whether in a building contract which is one, entire and indivisible, there is sale of goods. It was held by the Court that the Provincial Legislature was not competent under Entry 48, List II, Sch. VII of the Government of India Act, 1935, to impose tax on the supply of materials used in such a contract treating it as a sale. The decision of the Court did not rest upon any peculiar character of a building contract. It was held on the larger ground canvassed in that case, that the expression sale of goods within the meaning of relevant legislative entry had the same connotation as sale of goods in the Indian Sale of Goods Act, 1930, and therefore the State Legislature had no power to enact legislation to levy tax under Entry 48 of List II in respect of transactions which were not of the nature of sales of goods strictly so called; and a building contract not being a transaction in which there was a sale of materials by the contractor who constructed the building, the State was not competent to enact legislation to impose tax on the supply of materials used in a building contract treating it as a sale. It was therefore, held that the definition of sale in the Madras General Sales Tax Act IX of 1939 was to the extent of the extension invalid.6. In Gannon Dunkerley & Companys case ([1999] S.C.R. 379.), the validity of s. 2(h)(ii) of the Madras General Sales Tax Act, 1939, as amended by Act XXV of 1947, in so far as it included goods included in a works contract fell to be determined, in the light of the competence of the Provincial Legislature under Entry 48, List II, in Seventh Schedule of the Government of India Act, 1935. Under the Constitution the relevant entry conferring legislative power upon States to tax sale of goods in Entry 54, List II. As the scheme of division of legislative power under the Constitution has remained unaltered, the principle of Gannon Dunkerleys case ([1999] S.C.R. 379.), applies in adjudging the validity of the provisions of the Madhya Pradesh Act 4 of 1958.7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Schedule VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in Section 2(1) "and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale" which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Schedule VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declaredtraditional concept of sale was stressed upon and reference was made to M/s Gannon Dunkerleys case (supra) for the purpose of interpreting true import of the expression "sale of goods". | 0 | 10,170 | 2,633 | ### 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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fixtures. Nor can the builder reclaim them if they have been subsequently severed from the soil by the building owner or anyone else. The principle was shortly and clearly stated by Blackburn J. in Appleby v. Meyers(1867 LR 2 CP 651): Materials worked by one into the property of another become part of that property. This is equally true whether it be fixed or movable property. Bricks built into a wall become part of the house, thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship under repair, become part of the coat or the ship."40. We are surprised at the attitude of the States which have put forward the plea that on the passing of the 46th Amendment the Constitution had conferred on the States a larger freedom than what they had before in regard to their power to levy sales tax under Entry 54 of the State List. The 46th Amendment does no more than making it possible for the States to levy sales tax on the price of goods and materials used in works contracts as if there was a sale of such goods and materials. We do not accept the argument that sub-clause (b) of Article 366(29-A) should be read as being equivalent to a separate entry in List II of the Seventh Schedule to the Constitution enabling the States to levy tax on sales and purchases independent of Entry 54 thereof. As the Constitution exists today the power of the States to levy taxes on sales and purchases of goods including the "deemed" sales and purchases of goods under clause (29-A) of Article 366 is to be found only in Entry 54 and not outside it. We may recapitulate here with observations of the Constitution Bench in the case of Bengal Immunity Company Ltd. v. State of Bihar (1955 (2) SCR 603 ) in which this Court has held that the operative provisions of the several parts of Article 286 which imposes restrictions on the levy of sales tax by the States are intended to deal with different topics and one could not be projected or read into another and each one of them has to be obeyed while any sale or purchase is taxed under Entry 54 of the State List." 63. In Bhopal Sugar Industries v. D.B. Dube (AIR 1964 SC 1037 ) it was noted as follows: 5. In Gannon Dunkerley & Companys case ([1959] S.C.R. 379.), this Court was called upon to consider whether in a building contract which is one, entire and indivisible, there is sale of goods. It was held by the Court that the Provincial Legislature was not competent under Entry 48, List II, Sch. VII of the Government of India Act, 1935, to impose tax on the supply of materials used in such a contract treating it as a sale. The decision of the Court did not rest upon any peculiar character of a building contract. It was held on the larger ground canvassed in that case, that the expression sale of goods within the meaning of relevant legislative entry had the same connotation as sale of goods in the Indian Sale of Goods Act, 1930, and therefore the State Legislature had no power to enact legislation to levy tax under Entry 48 of List II in respect of transactions which were not of the nature of sales of goods strictly so called; and a building contract not being a transaction in which there was a sale of materials by the contractor who constructed the building, the State was not competent to enact legislation to impose tax on the supply of materials used in a building contract treating it as a sale. It was therefore, held that the definition of sale in the Madras General Sales Tax Act IX of 1939 was to the extent of the extension invalid.6. In Gannon Dunkerley & Companys case ([1999] S.C.R. 379.), the validity of s. 2(h)(ii) of the Madras General Sales Tax Act, 1939, as amended by Act XXV of 1947, in so far as it included goods included in a works contract fell to be determined, in the light of the competence of the Provincial Legislature under Entry 48, List II, in Seventh Schedule of the Government of India Act, 1935. Under the Constitution the relevant entry conferring legislative power upon States to tax sale of goods in Entry 54, List II. As the scheme of division of legislative power under the Constitution has remained unaltered, the principle of Gannon Dunkerleys case ([1999] S.C.R. 379.), applies in adjudging the validity of the provisions of the Madhya Pradesh Act 4 of 1958.7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Schedule VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in Section 2(1) "and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale" which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Schedule VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declared invalid." 64. The traditional concept of sale was stressed upon and reference was made to M/s Gannon Dunkerleys case (supra) for the purpose of interpreting true import of the expression "sale of goods". 65.
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0
### Explanation:
unsustainable on thatthe decision in Ganga Sugar case (supra) at first flush appears to be supporting the stand of the appellants, on a deeper scrutiny it is crystal clear that the said decision was rendered on peculiar facts of the case. The three challenges as culled out from paragraphs 22, 23 and 25 of the judgment make the position clear that there was no discussion in the background of Entry 54. Para 16 of the judgment traced the history of levy on sugarcane and 40 years old practice of levy on sugarcane was linked with weight. It was significantly noted that it was in the background of "peculiar circumstances of sugarcane economy". The logic cannot be applied to the facts of the present case.We are surprised at the attitude of the States which have put forward the plea that on the passing of the 46th Amendment the Constitution had conferred on the States a larger freedom than what they had before in regard to their power to levy sales tax under Entry 54 of the State List. The 46th Amendment does no more than making it possible for the States to levy sales tax on the price of goods and materials used in works contracts as if there was a sale of such goods and materials. We do not accept the argument that(b) of Articleshould be read as being equivalent to a separate entry in List II of the Seventh Schedule to the Constitution enabling the States to levy tax on sales and purchases independent of Entry 54 thereof. As the Constitution exists today the power of the States to levy taxes on sales and purchases of goods including the "deemed" sales and purchases of goods under clauseof Article 366 is to be found only in Entry 54 and not outside it. We may recapitulate here with observations of the Constitution Bench in the case of Bengal Immunity Company Ltd. v. State of Bihar (1955 (2) SCR 603 ) in which this Court has held that the operative provisions of the several parts of Article 286 which imposes restrictions on the levy of sales tax by the States are intended to deal with different topics and one could not be projected or read into another and each one of them has to be obeyed while any sale or purchase is taxed under Entry 54 of the StateBhopal Sugar Industries v. D.B. Dube (AIR 1964 SC 1037 ) it was noted asIn Gannon Dunkerley & Companys case ([1959] S.C.R. 379.), this Court was called upon to consider whether in a building contract which is one, entire and indivisible, there is sale of goods. It was held by the Court that the Provincial Legislature was not competent under Entry 48, List II, Sch. VII of the Government of India Act, 1935, to impose tax on the supply of materials used in such a contract treating it as a sale. The decision of the Court did not rest upon any peculiar character of a building contract. It was held on the larger ground canvassed in that case, that the expression sale of goods within the meaning of relevant legislative entry had the same connotation as sale of goods in the Indian Sale of Goods Act, 1930, and therefore the State Legislature had no power to enact legislation to levy tax under Entry 48 of List II in respect of transactions which were not of the nature of sales of goods strictly so called; and a building contract not being a transaction in which there was a sale of materials by the contractor who constructed the building, the State was not competent to enact legislation to impose tax on the supply of materials used in a building contract treating it as a sale. It was therefore, held that the definition of sale in the Madras General Sales Tax Act IX of 1939 was to the extent of the extension invalid.6. In Gannon Dunkerley & Companys case ([1999] S.C.R. 379.), the validity of s. 2(h)(ii) of the Madras General Sales Tax Act, 1939, as amended by Act XXV of 1947, in so far as it included goods included in a works contract fell to be determined, in the light of the competence of the Provincial Legislature under Entry 48, List II, in Seventh Schedule of the Government of India Act, 1935. Under the Constitution the relevant entry conferring legislative power upon States to tax sale of goods in Entry 54, List II. As the scheme of division of legislative power under the Constitution has remained unaltered, the principle of Gannon Dunkerleys case ([1999] S.C.R. 379.), applies in adjudging the validity of the provisions of the Madhya Pradesh Act 4 of 1958.7. Consumption by an owner of goods in which he deals is therefore not a sale within the meaning of the Sale of Goods Act and therefore it is not sale of goods within the meaning of Entry 54, List II, Schedule VII of the Constitution. The legislative power for levying tax on sale of goods being restricted to enacting legislation for levying tax on transactions which conform to the definition of sale of goods within the meaning of the Sale of Goods Act, 1930, the extended definition which includes consumption by a retail dealer himself of motor spirit or lubricants sold to him for retail sale is beyond the competence of the State Legislature. But the clause in the definition in Section 2(1) "and includes the consumption by a retail dealer himself or on his behalf of motor spirit or lubricant sold to him for retail sale" which is ultra vires the State Legislature because of lack of competence under Entry 54 in List II, Schedule VII of the Constitution is severable, from the rest of the definition, and that clause alone must be declaredtraditional concept of sale was stressed upon and reference was made to M/s Gannon Dunkerleys case (supra) for the purpose of interpreting true import of the expression "sale of goods".
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U.P.State Sugar Corporation Vs. Burhwal Sugar Mills Co. Ltd. | equipment and power plant), weight bridges, cranes, chimneys turbines and boilers (including the foundations, superstructure and roofing thereof pertaining to that factory;(ii) any engineering workshop, including machinery and equipment thereof;(iii) any chemical laboratory including any apparatus and equipment thereof;(iv) any motor or other vehicle or locomotive or railway sidings pertaining to that factory;(v) any dispensary or hospital or community or welfare centre exclusively for the benefit of workmen and other persons employed in that factory;(vi) all land (other than lands held or occupied for purposes of cultivation and grove lands) and buildings held or occupied for purposes of that factory (including buildings pertaining to any of the properties and assets hereinbefore specified and guest houses and residences of Directors, managerial personnel, staff and workmen or of any other person as lessee or licensee, and any store houses, molasses, tanks, roads, bridges, drains, culverts, tube wells, water storage or distribution system and other civil engineering works) including any leasehold interest therein;(vii) all limestone quarries pertaining to that factory, including any mining lease relating thereto;(viii) all electrical installations including any plant or equipment for the generation or transmission of energy, telephone equipment, furniture and fixtures pertaining to that factory or to any property or asset herein before specified;(ix) all tools, spare parts and stores pertaining to that factory;(x) all fire arms for the use of watch and ward staff employed in that factory;(xi) all maps, plans, sections, drawings and designs pertaining to that factory;(xii) All sugarcane, sugar in the process of manufacture for production and stocks of sugar and molasses and all bagasse and pressmud;(xiii) all books of account, registers and other documents pertaining to the factory or to any property or asset hereinbefore specified, but does not include cash-in-hand, cash at Bank] advances towards any income or other tax, investments and books, debts or rights, liabilities and obligations respecting any other contract." 13. A perusal of the above provision shows that generally all machines, tools, plants and other equipment which were being used for manufacturing sugar were acquired including the workshops, chemical laboratories, vehicles, dispensaries, hospitals, community or welfare centre exclusively used for the benefit of the workmen and other persons employed in the factory. Limestone queries, electrical installations, tools, spare parts and stores pertaining to that factory were also acquired. Under sub-clause (vi) all lands and buildings held or occupied for the purposes of that factory, guest houses and residences of directors, managerial personnel, staff and workmen or of any other person were also taken over. 14. The intention of the Legislature is clear that the land and buildings which were connected with or were in use for the purposes of the factory would be covered by clause (vi) of section 2 (h). Admittedly, the registered office of the respondent company was located at House No. 54/14 Canal Range, Kanpur. There is no material on the record to show the premises in question were being used or occupied for the storage of sugar. Similarly, there is no material on record to show that the house in question was being used as a guest house or for the residence of a Director of the factory. Respondent No. 1 is a registered company and is running a sugar factory at Barabanki with its registered office in House No. 54/14 Canal Range, Kanpur. Under the Act it is the factory along with its properties which were connected with or were in use for the purposes of the factory which were acquired and not the properties and assets of the company running that factory. The Act specifically differentiates between a company owning a sugar undertaking and the sugar undertaking itself. The Company is much wider entity as against the undertaking which is only one of the assets of the company. The Legislature deliberately did not touch the company and acquired only the undertaking as per the objects of the Legislature. registered office of the company is located in House No. 54/14 Canal Range, Kanpur which is owned and possessed by the company and is not a part of the Schedule Undertaking and, therefore, the same could not vest in the State. Handing over of its possession by the Receiver to the appellant was illegal and contrary to the provisions of the Act.15. Under the U.P. Sugarcane (Purchase Tax) Act 1961 the tax is levied and is payable on the manufactured sugar by a sugar factory before the sugar can be taken out from the factory campus except when it is kept in a godown situated outside the factory campus and is approved as such by the assessing authority. Section 3A of this Act reads: "Payment of tax before removal of sugar factory:- (1) No owner of a factory shall remove, or cause to be removed any sugar produced in the factory on or after the first day of October, 1971, hereinafter referred to as the said date, either for consumption, or for sale or for manufacture of any other commodity in or outside the factory. Until he had paid towards the tax levied under Section 3 a sum specified under sub-section (2) sub-section (3) or sub-section (4) as the case may beProvided that such sugar may be deposited without payment of any such sum in a godown or other place of storage approved by the assessing authority and where it is so deposited it shall not be removed therefrom until the sum as aforesaid has been paid..." 16. The building in question at Kanpur or any part of a it was never approved or used as a godown of the factory under the above said provisions. The plea taken by the respondent that the premises in question was being used as a godown to store the sugar is therefore not sustainable. As pointed out earlier, there is no material on record to show that the premises in dispute were being used as a residence of a Director or a guest house. The plea raised by the appellant to this effect is also rejected. 17. | 1[ds]The intention of the Legislature is clear that the land and buildings which were connected with or were in use for the purposes of the factory would be covered by clause (vi) of section 2 (h). Admittedly, the registered office of the respondent company was located at House No. 54/14 Canal Range, Kanpur. There is no material on the record to show the premises in question were being used or occupied for the storage of sugar. Similarly, there is no material on record to show that the house in question was being used as a guest house or for the residence of a Director of the factory. Respondent No. 1 is a registered company and is running a sugar factory at Barabanki with its registered office in House No. 54/14 Canal Range,The building in question at Kanpur or any part of a it was never approved or used as a godown of the factory under the above said provisions. The plea taken by the respondent that the premises in question was being used as a godown to store the sugar is therefore not sustainable. As pointed out earlier, there is no material on record to show that the premises in dispute were being used as a residence of a Director or a guest house. The plea raised by the appellant to this effect is also rejected. | 1 | 2,849 | 251 | ### 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:
equipment and power plant), weight bridges, cranes, chimneys turbines and boilers (including the foundations, superstructure and roofing thereof pertaining to that factory;(ii) any engineering workshop, including machinery and equipment thereof;(iii) any chemical laboratory including any apparatus and equipment thereof;(iv) any motor or other vehicle or locomotive or railway sidings pertaining to that factory;(v) any dispensary or hospital or community or welfare centre exclusively for the benefit of workmen and other persons employed in that factory;(vi) all land (other than lands held or occupied for purposes of cultivation and grove lands) and buildings held or occupied for purposes of that factory (including buildings pertaining to any of the properties and assets hereinbefore specified and guest houses and residences of Directors, managerial personnel, staff and workmen or of any other person as lessee or licensee, and any store houses, molasses, tanks, roads, bridges, drains, culverts, tube wells, water storage or distribution system and other civil engineering works) including any leasehold interest therein;(vii) all limestone quarries pertaining to that factory, including any mining lease relating thereto;(viii) all electrical installations including any plant or equipment for the generation or transmission of energy, telephone equipment, furniture and fixtures pertaining to that factory or to any property or asset herein before specified;(ix) all tools, spare parts and stores pertaining to that factory;(x) all fire arms for the use of watch and ward staff employed in that factory;(xi) all maps, plans, sections, drawings and designs pertaining to that factory;(xii) All sugarcane, sugar in the process of manufacture for production and stocks of sugar and molasses and all bagasse and pressmud;(xiii) all books of account, registers and other documents pertaining to the factory or to any property or asset hereinbefore specified, but does not include cash-in-hand, cash at Bank] advances towards any income or other tax, investments and books, debts or rights, liabilities and obligations respecting any other contract." 13. A perusal of the above provision shows that generally all machines, tools, plants and other equipment which were being used for manufacturing sugar were acquired including the workshops, chemical laboratories, vehicles, dispensaries, hospitals, community or welfare centre exclusively used for the benefit of the workmen and other persons employed in the factory. Limestone queries, electrical installations, tools, spare parts and stores pertaining to that factory were also acquired. Under sub-clause (vi) all lands and buildings held or occupied for the purposes of that factory, guest houses and residences of directors, managerial personnel, staff and workmen or of any other person were also taken over. 14. The intention of the Legislature is clear that the land and buildings which were connected with or were in use for the purposes of the factory would be covered by clause (vi) of section 2 (h). Admittedly, the registered office of the respondent company was located at House No. 54/14 Canal Range, Kanpur. There is no material on the record to show the premises in question were being used or occupied for the storage of sugar. Similarly, there is no material on record to show that the house in question was being used as a guest house or for the residence of a Director of the factory. Respondent No. 1 is a registered company and is running a sugar factory at Barabanki with its registered office in House No. 54/14 Canal Range, Kanpur. Under the Act it is the factory along with its properties which were connected with or were in use for the purposes of the factory which were acquired and not the properties and assets of the company running that factory. The Act specifically differentiates between a company owning a sugar undertaking and the sugar undertaking itself. The Company is much wider entity as against the undertaking which is only one of the assets of the company. The Legislature deliberately did not touch the company and acquired only the undertaking as per the objects of the Legislature. registered office of the company is located in House No. 54/14 Canal Range, Kanpur which is owned and possessed by the company and is not a part of the Schedule Undertaking and, therefore, the same could not vest in the State. Handing over of its possession by the Receiver to the appellant was illegal and contrary to the provisions of the Act.15. Under the U.P. Sugarcane (Purchase Tax) Act 1961 the tax is levied and is payable on the manufactured sugar by a sugar factory before the sugar can be taken out from the factory campus except when it is kept in a godown situated outside the factory campus and is approved as such by the assessing authority. Section 3A of this Act reads: "Payment of tax before removal of sugar factory:- (1) No owner of a factory shall remove, or cause to be removed any sugar produced in the factory on or after the first day of October, 1971, hereinafter referred to as the said date, either for consumption, or for sale or for manufacture of any other commodity in or outside the factory. Until he had paid towards the tax levied under Section 3 a sum specified under sub-section (2) sub-section (3) or sub-section (4) as the case may beProvided that such sugar may be deposited without payment of any such sum in a godown or other place of storage approved by the assessing authority and where it is so deposited it shall not be removed therefrom until the sum as aforesaid has been paid..." 16. The building in question at Kanpur or any part of a it was never approved or used as a godown of the factory under the above said provisions. The plea taken by the respondent that the premises in question was being used as a godown to store the sugar is therefore not sustainable. As pointed out earlier, there is no material on record to show that the premises in dispute were being used as a residence of a Director or a guest house. The plea raised by the appellant to this effect is also rejected. 17.
### Response:
1
### Explanation:
The intention of the Legislature is clear that the land and buildings which were connected with or were in use for the purposes of the factory would be covered by clause (vi) of section 2 (h). Admittedly, the registered office of the respondent company was located at House No. 54/14 Canal Range, Kanpur. There is no material on the record to show the premises in question were being used or occupied for the storage of sugar. Similarly, there is no material on record to show that the house in question was being used as a guest house or for the residence of a Director of the factory. Respondent No. 1 is a registered company and is running a sugar factory at Barabanki with its registered office in House No. 54/14 Canal Range,The building in question at Kanpur or any part of a it was never approved or used as a godown of the factory under the above said provisions. The plea taken by the respondent that the premises in question was being used as a godown to store the sugar is therefore not sustainable. As pointed out earlier, there is no material on record to show that the premises in dispute were being used as a residence of a Director or a guest house. The plea raised by the appellant to this effect is also rejected.
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BIRLA INSTITUTE OF TECHNOLOGY Vs. THE STATE OF JHARKHAND | to the meaning of words associated with it . [See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn., Syn. 8, at p. 379.] 23. The wordunskilled is opposite of the wordskilled and the wordsemi- skilled seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The wordunskilled cannot, therefore, be understood dissociated from the wordskilled and semi-skilled to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided. 24. The contention advanced that teachers should be treated as included in the expression unskilled or skilled cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in the industrial field or service jurisprudence as a skilled employee. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words semi-skilled andunskilled are not understood in educational establishments as describing nature of jobof untrained teachers. We donot attach much importance to the arguments advanced on the question as to whetherskilled,semi-skilled and unskilled qualify the wordsmanual, supervisory,technical orclerical or the above words qualify the word work. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are notskilled, semi-skilled, unskilled, manual, supervisory,technical orclerical employees. They are also not employed in managerial or administrative capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in managerial or administrative capacity.The teachers are clearly not intended to be covered by the definition ofemployee. 25. The legislature was alive to various kinds of definitions of the word employee contained in various previouslabour enactmentswhen the Act was passed in 1972. If it intended to cover in the definition ofemployee all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees Provident Funds Act, 1952 which definesemployee to meanany person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …. Non-use of such wide language in the definition of employee in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition. 26. Our conclusion should not be misunderstoodthatteachersalthough engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide. (emphasis supplied) 16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act. 17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case. 18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofemployee.The High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions. 19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act. 20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside. 21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra). 22.In case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law. | 1[ds]16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act.17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case.18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofThe High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions.19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act.20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside.21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra).case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law. | 1 | 2,363 | 443 | ### 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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to the meaning of words associated with it . [See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn., Syn. 8, at p. 379.] 23. The wordunskilled is opposite of the wordskilled and the wordsemi- skilled seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The wordunskilled cannot, therefore, be understood dissociated from the wordskilled and semi-skilled to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided. 24. The contention advanced that teachers should be treated as included in the expression unskilled or skilled cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in the industrial field or service jurisprudence as a skilled employee. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words semi-skilled andunskilled are not understood in educational establishments as describing nature of jobof untrained teachers. We donot attach much importance to the arguments advanced on the question as to whetherskilled,semi-skilled and unskilled qualify the wordsmanual, supervisory,technical orclerical or the above words qualify the word work. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are notskilled, semi-skilled, unskilled, manual, supervisory,technical orclerical employees. They are also not employed in managerial or administrative capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in managerial or administrative capacity.The teachers are clearly not intended to be covered by the definition ofemployee. 25. The legislature was alive to various kinds of definitions of the word employee contained in various previouslabour enactmentswhen the Act was passed in 1972. If it intended to cover in the definition ofemployee all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees Provident Funds Act, 1952 which definesemployee to meanany person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …. Non-use of such wide language in the definition of employee in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition. 26. Our conclusion should not be misunderstoodthatteachersalthough engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide. (emphasis supplied) 16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act. 17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case. 18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofemployee.The High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions. 19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act. 20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside. 21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra). 22.In case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law.
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16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act.17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case.18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofThe High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions.19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act.20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside.21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra).case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law.
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Gummalapura Taggina Matadakotturuswami Vs. Setra Veeravva And Others | to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J, with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word possessed" in S. 14 refers to possession on the date when the Act came into force. Of course, possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S. 14. The word "possessed" is used in S. 14 in a broad sense and in the context possession means the state of owning or having in ones hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary, in the present case to go to the extent to which the learned Judges went.It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in ones hand or power.In the case of Gostha Behari v. Haridas Samanta, (S) AIR 1957 Cal 557 at p. 559, P. N. Mookherjee J, expressed his opinion as to the meaning of the words "any property possessed by a female Hindu" in the following words :-"The opening words "property possessed by a female Hindu" obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act.They clearly contemplate the females possession when the Act came into force.That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed, property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in its widest connotation, when the Act came into force, the section would not apply."In our opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted.In the present case if the adoption was invalid, the full owner of veerappas estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant in this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.12. It was suggested that according to the will of Veerappa, Exbt. P-2(a) in the properties mentioned in para. 4 of that will Veeravva got only a restricted estate. The provisions of para. 4 of the will, however, make it clear that they would come into force only if the trustees mentioned in the will and Veeravva should disagree. No material was shown to us that, in fact, the trustees and Veeravva had disagreed and that the provisions of para. 4 were given effect to. Paragraph 12 of the will also showed that if the adoption was invalid, the property devolved on Veeravva as in intestacy. It is clear, therefore, that the provisions of para. 4 are of no assistance to the appellant in applying the provisions of sub-s. (2) of S. 14 of the Act. Reference was also made to the contents of the agreement, Exbt. D-25, dated September 18, 1942 in this connection. It is clear, however, that by this agreement no estate was conferred on Veeravva and she did not thereby acquire any estate much less a restricted estate. All the document stated was that there was an agreement between the guardians of the boy to adopted and Veeravva that even if the boy is adopted, Veeravva would remain it possession and enjoyment of her husbands estate during her life time. In our opinion, there is no material on the record by which it can reasonably be said that the provisions of subs. (2) of S, l4 of the Act applied to the present case.13. It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger and this action of hers could be questioned by a reversioner, as any alienation made by her, during her life time. Reference was made to S. 42 of the Specific Relief Act, Illustration (f).In our opinion, this is of no avail to the appellant, because Illustration (f) obviously refers to a Hindu widows estate and has no reference to a full owner. The right of a reversioner as one of the heirs under S. 42, Specific Relief Act, is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners; but as any against a full owner, the reversioner has no such right.In our opinion, under the Act Veeravva becoming a full owner of her husbands estate, the suit could not succeed and the appeal must accordingly fail. | 0[ds]It seems to us that if were permissible to decide the question of Veeravvas possession on only the affidavits before us, we would find no difficulty in holding that she was in possession of her husbands estate when the Act came into force. It is to be remembered, however, that this question has arisen now and the appellant has had no real opportunity to establish his assertion that the second defendant is in actual possession and not Veeravva. It is necessary therefore to consider the true scope and effect of the provisions of sub-s. (1) of S. 14 of the Act. If the words "possessed by a female Hindu" occurring therein refer only to actual physical possession, it may be necessary to call for a finding on the question of such possession; if, on the contrary, these words have a wide connotation and include constructive possession or possession in law, the preliminary objection can be determined on the footing that Veeravva was in such possession at the relevant time.In the case before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act" in S. 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a care the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provisions of S. 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J, with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word possessed" in S. 14 refers to possession on the date when the Act came into force. Of course, possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S. 14. The word "possessed" is used in S. 14 in a broad sense and in the context possession means the state of owning or having in ones hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary, in the present case to go to the extent to which the learned Judges went.It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in ones hand orour opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted.In the present case if the adoption was invalid, the full owner of veerappas estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant in this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.12. It was suggested that according to the will of Veerappa, Exbt. P-2(a) in the properties mentioned in para. 4 of that will Veeravva got only a restricted estate. The provisions of para. 4 of the will, however, make it clear that they would come into force only if the trustees mentioned in the will and Veeravva should disagree. No material was shown to us that, in fact, the trustees and Veeravva had disagreed and that the provisions of para. 4 were given effect to. Paragraph 12 of the will also showed that if the adoption was invalid, the property devolved on Veeravva as in intestacy. It is clear, therefore, that the provisions of para. 4 are of no assistance to the appellant in applying the provisions of sub-s. (2) of S. 14 of the Act. Reference was also made to the contents of the agreement, Exbt. D-25, dated September 18, 1942 in this connection. It is clear, however, that by this agreement no estate was conferred on Veeravva and she did not thereby acquire any estate much less a restricted estate. All the document stated was that there was an agreement between the guardians of the boy to adopted and Veeravva that even if the boy is adopted, Veeravva would remain it possession and enjoyment of her husbands estate during her life time. In our opinion, there is no material on the record by which it can reasonably be said that the provisions of subs. (2) of S, l4 of the Act applied to the present case.13. It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger and this action of hers could be questioned by a reversioner, as any alienation made by her, during her life time. Reference was made to S. 42 of the Specific Relief Act, Illustration (f).In our opinion, this is of no avail to the appellant, because Illustration (f) obviously refers to a Hindu widows estate and has no reference to a full owner. The right of a reversioner as one of the heirs under S. 42, Specific Relief Act, is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners; but as any against a full owner, the reversioner has no such right.In our opinion, under the Act Veeravva becoming a full owner of her husbands estate, the suit could not succeed and the appeal must accordingly fail. | 0 | 4,098 | 1,293 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J, with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word possessed" in S. 14 refers to possession on the date when the Act came into force. Of course, possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S. 14. The word "possessed" is used in S. 14 in a broad sense and in the context possession means the state of owning or having in ones hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary, in the present case to go to the extent to which the learned Judges went.It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in ones hand or power.In the case of Gostha Behari v. Haridas Samanta, (S) AIR 1957 Cal 557 at p. 559, P. N. Mookherjee J, expressed his opinion as to the meaning of the words "any property possessed by a female Hindu" in the following words :-"The opening words "property possessed by a female Hindu" obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act.They clearly contemplate the females possession when the Act came into force.That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed, property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word "possession" in its widest connotation, when the Act came into force, the section would not apply."In our opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted.In the present case if the adoption was invalid, the full owner of veerappas estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant in this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.12. It was suggested that according to the will of Veerappa, Exbt. P-2(a) in the properties mentioned in para. 4 of that will Veeravva got only a restricted estate. The provisions of para. 4 of the will, however, make it clear that they would come into force only if the trustees mentioned in the will and Veeravva should disagree. No material was shown to us that, in fact, the trustees and Veeravva had disagreed and that the provisions of para. 4 were given effect to. Paragraph 12 of the will also showed that if the adoption was invalid, the property devolved on Veeravva as in intestacy. It is clear, therefore, that the provisions of para. 4 are of no assistance to the appellant in applying the provisions of sub-s. (2) of S. 14 of the Act. Reference was also made to the contents of the agreement, Exbt. D-25, dated September 18, 1942 in this connection. It is clear, however, that by this agreement no estate was conferred on Veeravva and she did not thereby acquire any estate much less a restricted estate. All the document stated was that there was an agreement between the guardians of the boy to adopted and Veeravva that even if the boy is adopted, Veeravva would remain it possession and enjoyment of her husbands estate during her life time. In our opinion, there is no material on the record by which it can reasonably be said that the provisions of subs. (2) of S, l4 of the Act applied to the present case.13. It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger and this action of hers could be questioned by a reversioner, as any alienation made by her, during her life time. Reference was made to S. 42 of the Specific Relief Act, Illustration (f).In our opinion, this is of no avail to the appellant, because Illustration (f) obviously refers to a Hindu widows estate and has no reference to a full owner. The right of a reversioner as one of the heirs under S. 42, Specific Relief Act, is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners; but as any against a full owner, the reversioner has no such right.In our opinion, under the Act Veeravva becoming a full owner of her husbands estate, the suit could not succeed and the appeal must accordingly fail.
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### Explanation:
before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act" in S. 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a care the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provisions of S. 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J, with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word possessed" in S. 14 refers to possession on the date when the Act came into force. Of course, possession referred to in S. 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S. 14. The word "possessed" is used in S. 14 in a broad sense and in the context possession means the state of owning or having in ones hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary, in the present case to go to the extent to which the learned Judges went.It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in ones hand orour opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted.In the present case if the adoption was invalid, the full owner of veerappas estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant in this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.12. It was suggested that according to the will of Veerappa, Exbt. P-2(a) in the properties mentioned in para. 4 of that will Veeravva got only a restricted estate. The provisions of para. 4 of the will, however, make it clear that they would come into force only if the trustees mentioned in the will and Veeravva should disagree. No material was shown to us that, in fact, the trustees and Veeravva had disagreed and that the provisions of para. 4 were given effect to. Paragraph 12 of the will also showed that if the adoption was invalid, the property devolved on Veeravva as in intestacy. It is clear, therefore, that the provisions of para. 4 are of no assistance to the appellant in applying the provisions of sub-s. (2) of S. 14 of the Act. Reference was also made to the contents of the agreement, Exbt. D-25, dated September 18, 1942 in this connection. It is clear, however, that by this agreement no estate was conferred on Veeravva and she did not thereby acquire any estate much less a restricted estate. All the document stated was that there was an agreement between the guardians of the boy to adopted and Veeravva that even if the boy is adopted, Veeravva would remain it possession and enjoyment of her husbands estate during her life time. In our opinion, there is no material on the record by which it can reasonably be said that the provisions of subs. (2) of S, l4 of the Act applied to the present case.13. It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger and this action of hers could be questioned by a reversioner, as any alienation made by her, during her life time. Reference was made to S. 42 of the Specific Relief Act, Illustration (f).In our opinion, this is of no avail to the appellant, because Illustration (f) obviously refers to a Hindu widows estate and has no reference to a full owner. The right of a reversioner as one of the heirs under S. 42, Specific Relief Act, is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners; but as any against a full owner, the reversioner has no such right.In our opinion, under the Act Veeravva becoming a full owner of her husbands estate, the suit could not succeed and the appeal must accordingly fail.
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Kanhiyalal and Others Vs. State of Rajasthan | the deceased had a linear fracture 2" in length over the right frontal bone. The brain was congested and there was clotting of blood. This injury corresponds to external injury No. 1 In the opinion of Dr. Tak death was due to shock and haemorrhage on account of fracture of the skull bone. The injuries were ante-mortem. It is, therefore clear that Chhotu die a homicidal death 8. PW 2 Bhura deposed that he received two injuries on the forehead and two injuries on the left hand. There was a fracture resulting from the injury on the left hand. He was in hospital for 8 or 10 days. The prosecution evidence shows that the injury on the forehead was a serious one and had caused profuse bleeding. The injuries to other prosecution witnesses PW 1 Prem, PW 3 Champa and PW 19 Lad were of a simple nature. PW 4 claimed that she was injured but no external marks of injury were noticed. The prosecution relied on the direct testimony of PWs 1, 2, 3, 4, 9, 18 and 19 bring home the guilt against the accused persons. We have perused the evidence of these witnesses, all of whom unfold the prosecution version regarding the incident narrated earlier. Both the courts below have found these witnesses to be reliable. The fact that Chhotu and Bhura received severe injuries in the incident cannot be doubted. So also the fact that PWs 1, 3, and 19 received simple injuries cannot be doubted. The only question is whether the accused persons were the aggressors as alleged or whether they were obliged to caused injuries in self-defence 9. Accused 1 Kanhiyalal had sustained six injuries three abrasions one bruise and two lacerations on the left eye and right forehead. All these injuries were simple in nature except that there was bleeding from the gums which had loosened the lower front four teeth. Accused 2 Geelaram had one laceration on the frontal region, two abrasions on the scapular region and a linear scar on the right hand. All these injuries were of simple nature. Accused 3 Gokul had four abrasions and a swelling on the left forearm, all of which were simple in nature. Accused 4 Ratanlal had two abrasions, one on the scapular region and another on the left little finger which were simple in nature. It will be seen from the above that the injuries suffered by the accused were of a simple nature as against the injuries suffered by Chhotu and Bhura. If the assault was opened by the complainant party, as is alleged by the counsel, we do not think that the accused would have escaped with simple and minor injures. According to the accused they were unarmed when the assault was opened by Chhotu and Bhura and they picked up the salia from the nearby bullock cart to protect themselves. This means that there was a gap between the assault launched by Chhotu and Bhura and the accused arming themselves with salia. It is, therefore, difficult to believe that the accused would have escaped with such injuries if the complainant party had in fact opened the attack on unarmed persons. Both the courts below have also reached the conclusion and in our view rightly that the facts and circumstances of the case reveal that the assault was launched by accused 1 and 2, accused 3 and 4 joining a little later. There is another circumstances which betrays the revengeful mood of the accused persons. After Chhotu and Bhura were injured and the accused had left the place of occurrence, the womenfolk had requested PW 8 to take the injured in his bullock cart to the dispensary. PW 8 agreed and both the injured who were in critical condition were placed in the bullock cart. The bullock cart had hardly covered a distance of 4 or 5 fields when the accused appeared and told PW 8 to leave the injured to their fate if the considered his life precious 10. PW 8 showed initial resistance but fled on being attacked with stones. It was thereafter that the womenfolk requested PW 20 Govindram to drive the bullock cart to dispensary. This part of the prosecution evidence which has remained virtually uncontested goes to show that even after the incident the accused did not permit PW 8 to take the injured to the dispensary for treatment. This is a circumstance which betrays the mood of the accused persons at the time of and immediately after the incident. We are, therefore, of the opinion that the courts below did not commit any error in the appreciation of the prosecution evidence in coming to the conclusion that the accused persons were the aggressors. The accused persons therefore, were not entitled to any right of private defence 11. It was next contended by the learned counsel for the appellants that there was an inordinate delay in lodging the first information report. The court below have come to the conclusion that the delay is properly explained. We think that this conclusion is correct. Immediately after the incident all the members of the complainants party except PW 1 Prem who was a minor had accompanied the injured Chhotu and Bhura in the bullock cart. On reaching the dispensary it was realised that since the medical officer was not available it was necessary to remove the injured to Kekri Hospital. PW 20 returned with the bullock car to the village and thereafter went to Kekri Hospital by bus. It was there that PW 2 Bhura requested him to him inform police. PW 20 thereafter went to the police station and lodged the complaint. In these circumstances we do not think that the delay is unexplained. We, therefore, see no substance in this contention 12. It was lastly contended that the prosecution witnesses have suppressed the true facts. We have carefully read the prosecution evidence and we do not think that the prosecution witnesses are guilty of suppression of facts | 0[ds]We think that this conclusion is correct. Immediately after the incident all the members of the complainants party except PW 1 Prem who was a minor had accompanied the injured Chhotu and Bhura in the bullock cart. On reaching the dispensary it was realised that since the medical officer was not available it was necessary to remove the injured to Kekri Hospital. PW 20 returned with the bullock car to the village and thereafter went to Kekri Hospital by bus. It was there that PW 2 Bhura requested him to him inform police. PW 20 thereafter went to the police station and lodged the complaint. In these circumstances we do not think that the delay is unexplained. We, therefore, see no substance in this contentionWe have carefully read the prosecution evidence and we do not think that the prosecution witnesses are guilty of suppression of facts | 0 | 2,511 | 159 | ### Instruction:
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the deceased had a linear fracture 2" in length over the right frontal bone. The brain was congested and there was clotting of blood. This injury corresponds to external injury No. 1 In the opinion of Dr. Tak death was due to shock and haemorrhage on account of fracture of the skull bone. The injuries were ante-mortem. It is, therefore clear that Chhotu die a homicidal death 8. PW 2 Bhura deposed that he received two injuries on the forehead and two injuries on the left hand. There was a fracture resulting from the injury on the left hand. He was in hospital for 8 or 10 days. The prosecution evidence shows that the injury on the forehead was a serious one and had caused profuse bleeding. The injuries to other prosecution witnesses PW 1 Prem, PW 3 Champa and PW 19 Lad were of a simple nature. PW 4 claimed that she was injured but no external marks of injury were noticed. The prosecution relied on the direct testimony of PWs 1, 2, 3, 4, 9, 18 and 19 bring home the guilt against the accused persons. We have perused the evidence of these witnesses, all of whom unfold the prosecution version regarding the incident narrated earlier. Both the courts below have found these witnesses to be reliable. The fact that Chhotu and Bhura received severe injuries in the incident cannot be doubted. So also the fact that PWs 1, 3, and 19 received simple injuries cannot be doubted. The only question is whether the accused persons were the aggressors as alleged or whether they were obliged to caused injuries in self-defence 9. Accused 1 Kanhiyalal had sustained six injuries three abrasions one bruise and two lacerations on the left eye and right forehead. All these injuries were simple in nature except that there was bleeding from the gums which had loosened the lower front four teeth. Accused 2 Geelaram had one laceration on the frontal region, two abrasions on the scapular region and a linear scar on the right hand. All these injuries were of simple nature. Accused 3 Gokul had four abrasions and a swelling on the left forearm, all of which were simple in nature. Accused 4 Ratanlal had two abrasions, one on the scapular region and another on the left little finger which were simple in nature. It will be seen from the above that the injuries suffered by the accused were of a simple nature as against the injuries suffered by Chhotu and Bhura. If the assault was opened by the complainant party, as is alleged by the counsel, we do not think that the accused would have escaped with simple and minor injures. According to the accused they were unarmed when the assault was opened by Chhotu and Bhura and they picked up the salia from the nearby bullock cart to protect themselves. This means that there was a gap between the assault launched by Chhotu and Bhura and the accused arming themselves with salia. It is, therefore, difficult to believe that the accused would have escaped with such injuries if the complainant party had in fact opened the attack on unarmed persons. Both the courts below have also reached the conclusion and in our view rightly that the facts and circumstances of the case reveal that the assault was launched by accused 1 and 2, accused 3 and 4 joining a little later. There is another circumstances which betrays the revengeful mood of the accused persons. After Chhotu and Bhura were injured and the accused had left the place of occurrence, the womenfolk had requested PW 8 to take the injured in his bullock cart to the dispensary. PW 8 agreed and both the injured who were in critical condition were placed in the bullock cart. The bullock cart had hardly covered a distance of 4 or 5 fields when the accused appeared and told PW 8 to leave the injured to their fate if the considered his life precious 10. PW 8 showed initial resistance but fled on being attacked with stones. It was thereafter that the womenfolk requested PW 20 Govindram to drive the bullock cart to dispensary. This part of the prosecution evidence which has remained virtually uncontested goes to show that even after the incident the accused did not permit PW 8 to take the injured to the dispensary for treatment. This is a circumstance which betrays the mood of the accused persons at the time of and immediately after the incident. We are, therefore, of the opinion that the courts below did not commit any error in the appreciation of the prosecution evidence in coming to the conclusion that the accused persons were the aggressors. The accused persons therefore, were not entitled to any right of private defence 11. It was next contended by the learned counsel for the appellants that there was an inordinate delay in lodging the first information report. The court below have come to the conclusion that the delay is properly explained. We think that this conclusion is correct. Immediately after the incident all the members of the complainants party except PW 1 Prem who was a minor had accompanied the injured Chhotu and Bhura in the bullock cart. On reaching the dispensary it was realised that since the medical officer was not available it was necessary to remove the injured to Kekri Hospital. PW 20 returned with the bullock car to the village and thereafter went to Kekri Hospital by bus. It was there that PW 2 Bhura requested him to him inform police. PW 20 thereafter went to the police station and lodged the complaint. In these circumstances we do not think that the delay is unexplained. We, therefore, see no substance in this contention 12. It was lastly contended that the prosecution witnesses have suppressed the true facts. We have carefully read the prosecution evidence and we do not think that the prosecution witnesses are guilty of suppression of facts
### Response:
0
### Explanation:
We think that this conclusion is correct. Immediately after the incident all the members of the complainants party except PW 1 Prem who was a minor had accompanied the injured Chhotu and Bhura in the bullock cart. On reaching the dispensary it was realised that since the medical officer was not available it was necessary to remove the injured to Kekri Hospital. PW 20 returned with the bullock car to the village and thereafter went to Kekri Hospital by bus. It was there that PW 2 Bhura requested him to him inform police. PW 20 thereafter went to the police station and lodged the complaint. In these circumstances we do not think that the delay is unexplained. We, therefore, see no substance in this contentionWe have carefully read the prosecution evidence and we do not think that the prosecution witnesses are guilty of suppression of facts
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Ahmedabad Municipal Corporation Of The City Of Ahmedabad Vs. Haji Abdulgafur Haji Hussenbhai | he acted with wilful abstention or gross negligence. Being a question depending on the behaviour of a reasonably prudent man, the Courts have to consider it in the background of Indian conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindly or too readily followed.12. Adverting now to the case before us, as already noticed, the property in question had vested in the receivers in insolvency proceedings since March, 1949, by an interim order, and in October, 1950, the original owner was adjudicated as an insolvent and the property finally vested in the receivers in insolvency. The plaintiff purchased the property in November, 1954 and in our opinion it could not have reasonably been expected by him that the receivers would not have paid to the municipal corporation since 1949 the taxes and other dues which were charged on this property by statute. According to Section 61 of the Provincial Insolvency Act, 1920, the debts due to a local authority are given priority, being bracketed along with the debts due to the State. Merely because these taxes are charged on the property could not constitute a valid ground for the official receiver not to discharge this liability. In fact we find from the record that on January 15, 1951, the receivers had submitted a report to the insolvency Court about their having received bills for Rs. 628-3-0 in respect of municipal taxes of the insolvents property and leave of the Court was sought for transferring the said property to the names of the receivers in the municipal and Government records. The Court recorded an order on February 8, 1951, that the municipal taxes had to be paid on the receivers stating that they did not possess sufficient funds the Court gave notice to the counsel for the opposite party and on February 24, 1951 made the following order :"Mr. Pandya absent. The taxes have to be paid the Receivers state that they can pay only by sale of some properties of the insolvent from which they want. Sanctioned. The property in which the insolvent stays should first be disposed of. The terms are according authorised."It is not known that happened thereafter. It is however difficult to appreciate why after having secured the necessary order from the Court municipal taxes were not paid off by the receivers and why the municipal corporation did not purse the matter and secure payment of the taxes due. May be that the municipal corporation thought that since these dues were a charge on the property they need not pursue the matter with the receivers and also need not approach the insolvency Court. If so, then this, in our opinion, was not a proper attitude to adopt. In any event the plaintiff could not reasonably have though that the municipal corporation had not cared to secure payment of the taxes due since 1949. On the facts and circumstances of this case, therefore, we cannot hold that the plaintiff as a prudent and reasonable man was bound to enquiry from the municipal corporation about the existence of any arrears of taxes due from the receivers. It appears from the record, however, that he did in fact make enquiries from the receivers but they did not give any intimation. The plaintiff made a statement on oath that when he purchased the building in question it was occupied by the tenants and the rent used to be recovered by the receivers. There is no rebuttal to this evidence. Now, if the receivers were receiving rent from the tenants, the reasonable assumption would be that the municipal taxes which were a charge on the property and which were also given priority under Section 61 of the Provincial Insolvency Act, 1920, had been duly paid by the receivers out of the rental income. The plaintiff could have no reasonable ground for assuming that they were in arrears. From the plaintiffs testimony it is clear that he did nevertheless make enquiries from the receivers if there were any dues against the property though the enquiry was not made specficially about municipal dues. Apparently he was not informed about the arrears of municipal taxes. This seems to us explainable on the ground that the receivers had, after securing appropriate orders, for some reason not clear on the record, omitted to pay the arrears of municipal taxes and they were, therefore, reluctant to disclose the lapse on their part. On these facts and circumstances we do not think that the plaintiff could reasonably be fixed with any constructive notice of the arrears of municipal taxes since 1949. So far as the legal position is concerned we are inclined to agree with the reasoning adopted by the Allahabad High Court in Roop Chand Jains case (supra) in preference to the reasoning of the Full Bench of that Court in Nawal Kishores case (supra) or of the Division Bench of Oudh Chief Court in Ramji Lals case (supra). We do not think there is any principle or firm rule of law as suggested in Nawal Kishores case (supra) imputing to all intending purchasers of property in municipal area where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. The question of constructive knowledge or notice has to be determined on the facts and circumstances of each case. According to the Full Bench decision in Nawal Kishores case (supra) also the question of constructive notice is a question of fact and we do not find that the material on the present record justifies that the plaintiff should be fixed with any constructive notice of the arrears of municipal taxes.13. We may add before concluding that as the question of constructive notice has to be approached from equitable considerations we feel that the municipal corporation in the present case was far more negligent and blameworthy than the plaintiff. | 1[ds]4. This section in unambiguous language lays down that no charge is enforceable against any property in the hands of a transferee for consideration without notice of the charge except where it is otherwise expressly provided by any law for the time being in force. The saving provision of law must expressly provide for enforcement of a charge against the property in the hands of a transferee for value without notice of the charge and not merely create a charge. We now turn to Section 141 ofthe Bombay Provincial Municipal Corporation Act, 1949, to see if it answers the requirements of Section 100 of Transfer of Property(1), as is obvious, merely creates a charge in express language. This charge is subject to prior payment of land revenue due to the State Government on such building or land. The section, apart from crating a statutory charge, does not further provide that this charge is enforceable against the property charged in the hands of a transferee for consideration without notice of the charge. It was contended that the saving provision, as contemplated by Section 100 of the Transfer of Property Act, may, without using express words, in effect provide that the property is liable to sale in enforcement of the charge and that if this liability is fixed by a provision expressly dealing with the subject, then the charge would be enforceable against the property even in the hands of a transferee for consideration without notice of the charge. According to the submission it is not necessary for the saving provision to expressly provide for the enforceability of the charge against the property in the hands of a transferee for consideration without notice of the charge. This submission in unacceptable because, as already observed what is enacted in the Second half of Section 100 of Transfer of Property Act is the general prohibition that on charge shall be enforced against any property in the hands of a transferee for consideration without notice of the charge and the exception to this general rule must be expressly provided by law. The real core of the saving provision of law must be not mere enforceability of the charge against the property changed but enforceability of the charge against the said property in the hands of a transferee for consideration without notice of the charge. Section 141 of the Bombay Municipal Act is clearly not such a provision. The second contention fails and is repelled.The Court then proceeded to deal with the position of the vendor from whom the appellants had purchased the property in order to see if he could raise the defence of being a purchaser for value without notice. The appellants vendor was a mortgagee who had acquired titled by foreclosure - an involuntary alienation by his mortgager - and it was held that to him constructive notice could not be imputed to the same extent as to a purchaser at a private sale. But had he made enquiries from the municipal authorities he could still have ascertained whether any arrears of consolidated rates were due. When he had taken the mortgage he was aware that if the rates were not paid the arrears would be first charge on the property with the result that before becoming full owner by foreclosure he should have ascertained the true state of affairs. On this reasoning he was held to have constructive notice and the purchasers from him could not claim grater protection. These circumstances clearly disclose that the reported case is not similar to the one before us and is of little assistance.Now the circumstances which by a deeming fiction impute notice to a party are based, on his wilful abstention to enquire or search which a person ought to make or, on his gross negligence. This presumption of notice is commonly known as constructive notice. Though originating in equity this presumption of notice is now a part of our statute and we have to interpret it as such. Wilful abstention suggests conscious or deliberate abstention and gross negligence is indicative of a higher degree of neglect. Negligence is ordinarily understood as an omission to take such reasonable care as under the circumstances is the duty of a person of ordinary prudence to take. In other words it is an omission to do something which a reasonable man guided by considerations which normally regulate the conduct of human affairs would do or doing something which normally a prudent and reasonable man would not do. The question of wilful abstention or gross negligence and, therefore, of constructive notice considered from this point of view is generally a question of fact or at best mixed question of fact and law depending primarily on the facts and circumstances of each case and except for cases directly falling within the three explanations, no inflexible rule can be laid down to serve as a straight-jacket covering all possible contingencies. The question one has to answer in circumstances like the present is not whether the purchaser had the means of obtaining and might with prudent caution have obtained knowledge of the charge but whether in not doing so he acted with wilful abstention or gross negligence. Being a question depending on the behaviour of a reasonably prudent man, the Courts have to consider it in the background of Indian conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindly or too readily followed.12. Adverting now to the case before us, as already noticed, the property in question had vested in the receivers in insolvency proceedings since March, 1949, by an interim order, and in October, 1950, the original owner was adjudicated as an insolvent and the property finally vested in the receivers in insolvency. The plaintiff purchased the property in November, 1954 and in our opinion it could not have reasonably been expected by him that the receivers would not have paid to the municipal corporation since 1949 the taxes and other dues which were charged on this property by statute. According to Section 61 ofthe Provincial Insolvency Act, 1920, the debts due to a local authority are given priority, being bracketed along with the debts due to the State. Merely because these taxes are charged on the property could not constitute a valid ground for the official receiver not to discharge this liability. In fact we find from the record that on January 15, 1951, the receivers had submitted a report to the insolvency Court about their having received bills for Rs. 628-3-0 in respect of municipal taxes of the insolvents property and leave of the Court was sought for transferring the said property to the names of the receivers in the municipal and Governmentis not known that happened thereafter. It is however difficult to appreciate why after having secured the necessary order from the Court municipal taxes were not paid off by the receivers and why the municipal corporation did not purse the matter and secure payment of the taxes due. May be that the municipal corporation thought that since these dues were a charge on the property they need not pursue the matter with the receivers and also need not approach the insolvency Court. If so, then this, in our opinion, was not a proper attitude to adopt. In any event the plaintiff could not reasonably have though that the municipal corporation had not cared to secure payment of the taxes due since 1949. On the facts and circumstances of this case, therefore, we cannot hold that the plaintiff as a prudent and reasonable man was bound to enquiry from the municipal corporation about the existence of any arrears of taxes due from the receivers. It appears from the record, however, that he did in fact make enquiries from the receivers but they did not give any intimation. The plaintiff made a statement on oath that when he purchased the building in question it was occupied by the tenants and the rent used to be recovered by the receivers. There is no rebuttal to this evidence. Now, if the receivers were receiving rent from the tenants, the reasonable assumption would be that the municipal taxes which were a charge on the property and which were also given priority under Section 61 ofthe Provincial Insolvency Act, 1920, had been duly paid by the receivers out of the rental income. The plaintiff could have no reasonable ground for assuming that they were in arrears. From the plaintiffs testimony it is clear that he did nevertheless make enquiries from the receivers if there were any dues against the property though the enquiry was not made specficially about municipal dues. Apparently he was not informed about the arrears of municipal taxes. This seems to us explainable on the ground that the receivers had, after securing appropriate orders, for some reason not clear on the record, omitted to pay the arrears of municipal taxes and they were, therefore, reluctant to disclose the lapse on their part. On these facts and circumstances we do not think that the plaintiff could reasonably be fixed with any constructive notice of the arrears of municipal taxes since 1949. So far as the legal position is concerned we are inclined to agree with the reasoning adopted by the Allahabad High Court in Roop Chand Jains case (supra) in preference to the reasoning of the Full Bench of that Court in Nawal Kishores case (supra) or of the Division Bench of Oudh Chief Court in Ramji Lals case (supra). We do not think there is any principle or firm rule of law as suggested in Nawal Kishores case (supra) imputing to all intending purchasers of property in municipal area where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. The question of constructive knowledge or notice has to be determined on the facts and circumstances of each case. According to the Full Bench decision in Nawal Kishores case (supra) also the question of constructive notice is a question of fact and we do not find that the material on the present record justifies that the plaintiff should be fixed with any constructive notice of the arrears of municipal taxes.13. We may add before concluding that as the question of constructive notice has to be approached from equitable considerations we feel that the municipal corporation in the present case was far more negligent and blameworthy than the plaintiff. | 1 | 5,386 | 1,877 | ### Instruction:
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he acted with wilful abstention or gross negligence. Being a question depending on the behaviour of a reasonably prudent man, the Courts have to consider it in the background of Indian conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindly or too readily followed.12. Adverting now to the case before us, as already noticed, the property in question had vested in the receivers in insolvency proceedings since March, 1949, by an interim order, and in October, 1950, the original owner was adjudicated as an insolvent and the property finally vested in the receivers in insolvency. The plaintiff purchased the property in November, 1954 and in our opinion it could not have reasonably been expected by him that the receivers would not have paid to the municipal corporation since 1949 the taxes and other dues which were charged on this property by statute. According to Section 61 of the Provincial Insolvency Act, 1920, the debts due to a local authority are given priority, being bracketed along with the debts due to the State. Merely because these taxes are charged on the property could not constitute a valid ground for the official receiver not to discharge this liability. In fact we find from the record that on January 15, 1951, the receivers had submitted a report to the insolvency Court about their having received bills for Rs. 628-3-0 in respect of municipal taxes of the insolvents property and leave of the Court was sought for transferring the said property to the names of the receivers in the municipal and Government records. The Court recorded an order on February 8, 1951, that the municipal taxes had to be paid on the receivers stating that they did not possess sufficient funds the Court gave notice to the counsel for the opposite party and on February 24, 1951 made the following order :"Mr. Pandya absent. The taxes have to be paid the Receivers state that they can pay only by sale of some properties of the insolvent from which they want. Sanctioned. The property in which the insolvent stays should first be disposed of. The terms are according authorised."It is not known that happened thereafter. It is however difficult to appreciate why after having secured the necessary order from the Court municipal taxes were not paid off by the receivers and why the municipal corporation did not purse the matter and secure payment of the taxes due. May be that the municipal corporation thought that since these dues were a charge on the property they need not pursue the matter with the receivers and also need not approach the insolvency Court. If so, then this, in our opinion, was not a proper attitude to adopt. In any event the plaintiff could not reasonably have though that the municipal corporation had not cared to secure payment of the taxes due since 1949. On the facts and circumstances of this case, therefore, we cannot hold that the plaintiff as a prudent and reasonable man was bound to enquiry from the municipal corporation about the existence of any arrears of taxes due from the receivers. It appears from the record, however, that he did in fact make enquiries from the receivers but they did not give any intimation. The plaintiff made a statement on oath that when he purchased the building in question it was occupied by the tenants and the rent used to be recovered by the receivers. There is no rebuttal to this evidence. Now, if the receivers were receiving rent from the tenants, the reasonable assumption would be that the municipal taxes which were a charge on the property and which were also given priority under Section 61 of the Provincial Insolvency Act, 1920, had been duly paid by the receivers out of the rental income. The plaintiff could have no reasonable ground for assuming that they were in arrears. From the plaintiffs testimony it is clear that he did nevertheless make enquiries from the receivers if there were any dues against the property though the enquiry was not made specficially about municipal dues. Apparently he was not informed about the arrears of municipal taxes. This seems to us explainable on the ground that the receivers had, after securing appropriate orders, for some reason not clear on the record, omitted to pay the arrears of municipal taxes and they were, therefore, reluctant to disclose the lapse on their part. On these facts and circumstances we do not think that the plaintiff could reasonably be fixed with any constructive notice of the arrears of municipal taxes since 1949. So far as the legal position is concerned we are inclined to agree with the reasoning adopted by the Allahabad High Court in Roop Chand Jains case (supra) in preference to the reasoning of the Full Bench of that Court in Nawal Kishores case (supra) or of the Division Bench of Oudh Chief Court in Ramji Lals case (supra). We do not think there is any principle or firm rule of law as suggested in Nawal Kishores case (supra) imputing to all intending purchasers of property in municipal area where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. The question of constructive knowledge or notice has to be determined on the facts and circumstances of each case. According to the Full Bench decision in Nawal Kishores case (supra) also the question of constructive notice is a question of fact and we do not find that the material on the present record justifies that the plaintiff should be fixed with any constructive notice of the arrears of municipal taxes.13. We may add before concluding that as the question of constructive notice has to be approached from equitable considerations we feel that the municipal corporation in the present case was far more negligent and blameworthy than the plaintiff.
### Response:
1
### Explanation:
therefore, of constructive notice considered from this point of view is generally a question of fact or at best mixed question of fact and law depending primarily on the facts and circumstances of each case and except for cases directly falling within the three explanations, no inflexible rule can be laid down to serve as a straight-jacket covering all possible contingencies. The question one has to answer in circumstances like the present is not whether the purchaser had the means of obtaining and might with prudent caution have obtained knowledge of the charge but whether in not doing so he acted with wilful abstention or gross negligence. Being a question depending on the behaviour of a reasonably prudent man, the Courts have to consider it in the background of Indian conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindly or too readily followed.12. Adverting now to the case before us, as already noticed, the property in question had vested in the receivers in insolvency proceedings since March, 1949, by an interim order, and in October, 1950, the original owner was adjudicated as an insolvent and the property finally vested in the receivers in insolvency. The plaintiff purchased the property in November, 1954 and in our opinion it could not have reasonably been expected by him that the receivers would not have paid to the municipal corporation since 1949 the taxes and other dues which were charged on this property by statute. According to Section 61 ofthe Provincial Insolvency Act, 1920, the debts due to a local authority are given priority, being bracketed along with the debts due to the State. Merely because these taxes are charged on the property could not constitute a valid ground for the official receiver not to discharge this liability. In fact we find from the record that on January 15, 1951, the receivers had submitted a report to the insolvency Court about their having received bills for Rs. 628-3-0 in respect of municipal taxes of the insolvents property and leave of the Court was sought for transferring the said property to the names of the receivers in the municipal and Governmentis not known that happened thereafter. It is however difficult to appreciate why after having secured the necessary order from the Court municipal taxes were not paid off by the receivers and why the municipal corporation did not purse the matter and secure payment of the taxes due. May be that the municipal corporation thought that since these dues were a charge on the property they need not pursue the matter with the receivers and also need not approach the insolvency Court. If so, then this, in our opinion, was not a proper attitude to adopt. In any event the plaintiff could not reasonably have though that the municipal corporation had not cared to secure payment of the taxes due since 1949. On the facts and circumstances of this case, therefore, we cannot hold that the plaintiff as a prudent and reasonable man was bound to enquiry from the municipal corporation about the existence of any arrears of taxes due from the receivers. It appears from the record, however, that he did in fact make enquiries from the receivers but they did not give any intimation. The plaintiff made a statement on oath that when he purchased the building in question it was occupied by the tenants and the rent used to be recovered by the receivers. There is no rebuttal to this evidence. Now, if the receivers were receiving rent from the tenants, the reasonable assumption would be that the municipal taxes which were a charge on the property and which were also given priority under Section 61 ofthe Provincial Insolvency Act, 1920, had been duly paid by the receivers out of the rental income. The plaintiff could have no reasonable ground for assuming that they were in arrears. From the plaintiffs testimony it is clear that he did nevertheless make enquiries from the receivers if there were any dues against the property though the enquiry was not made specficially about municipal dues. Apparently he was not informed about the arrears of municipal taxes. This seems to us explainable on the ground that the receivers had, after securing appropriate orders, for some reason not clear on the record, omitted to pay the arrears of municipal taxes and they were, therefore, reluctant to disclose the lapse on their part. On these facts and circumstances we do not think that the plaintiff could reasonably be fixed with any constructive notice of the arrears of municipal taxes since 1949. So far as the legal position is concerned we are inclined to agree with the reasoning adopted by the Allahabad High Court in Roop Chand Jains case (supra) in preference to the reasoning of the Full Bench of that Court in Nawal Kishores case (supra) or of the Division Bench of Oudh Chief Court in Ramji Lals case (supra). We do not think there is any principle or firm rule of law as suggested in Nawal Kishores case (supra) imputing to all intending purchasers of property in municipal area where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. The question of constructive knowledge or notice has to be determined on the facts and circumstances of each case. According to the Full Bench decision in Nawal Kishores case (supra) also the question of constructive notice is a question of fact and we do not find that the material on the present record justifies that the plaintiff should be fixed with any constructive notice of the arrears of municipal taxes.13. We may add before concluding that as the question of constructive notice has to be approached from equitable considerations we feel that the municipal corporation in the present case was far more negligent and blameworthy than the plaintiff.
|
State of Madras & Another Vs. M/s. M.A. Noor Mohammed & Company & Others | the single point imposition of sales tax on hides and skins to be conditional on observing the condition of taking a licence. 10. The argument of inconsistency between R. 16(5) of the Turnover and Assessment Rules and S. 5(vi) of the Act which was accepted in the High Court receives no support from the language of that section which is a concessional provisions for making the sales of hides and skins liable to taxation at a single point; but that, as the opening words of the section show, is subject to restrictions and conditions prescribed in the rules and one of these conditions is the taking of a licence.All that R. 16(5) does is to emphasise the consequences of non-observance of the conditions which Ss. 5(vi) and 6-A have in clear terms prescribed.We find no inconsistency between the section and the Act. But it was submitted that this Court on appeal from a judgment of the Madras High Court had held R. 16(5) to be ultra vires the Act. That contention is based on the judgment of the Madras High Court in V. M. Syed Mohammed and Co. v. State of Madras, 1952-3 STC 367 : (AIR 1953 Mad 105 ), which on appeal was affirmed by this Court in 1954 SCR 1117 : (AIR 1954 SC 314 ). This contention is not well-founded. In that case, when it was in the Madras High Court, it was contended that the rules did not properly carry out the policy underlying the Act, which was to keep the price of hides and skins at a competitive level for the world market. It was there argued that hides and skins were articles much in demand in the foreign markets and their export was one of the main items of the foreign trade of the State of Madras which enjoyed considerable natural advantage in tanning because of the plentiful supply of "Avaram bark" which was specially suited for the purpose. It was also argued that untanned hides and skins were acquried locally or by import from other States and were either tanned in the State or exported and therefore the scheme of taxation was to levy the tax at a single point, i.e. at the stage when articles were tanned in the State or exported to foreign countries for tanning. For this reason multiple taxation was violative of S. 5(vi) of the Act. This, it appears, was not disputed by the Government and it was therefore held that R. 16(5) of the Turnover and Assessment Rules was ultra vires. But the question was really not relevant to the issue as was pointed out by Venkatarama Ayyar, J., at page 394 of STC : (at p. 115 of AIR) where he said :"Now the cotnention of the petitioners is that where there are sales by unlicensed dealers to unlicensed tanners or unlicensed dealers, there is the possibility of multiple taxation and that would be in violation of S. 5(vi). It is not disputed on behalf of the Government that Rule 16(5) is repugnant to S. 5(vi). It must therefore be held to be ultra vires. But this can bring no relief to the petitioners, as they are all licensed tanners and are in no manner hurt by the operation of R. 16(5). This was conceded by the learned Advocate for the petitioners". 11. This case was then brought in appeal to this Court and S. R. Das, J., (as he then was observed at page 1121 (of SCR) : (at p. 316 of AIR) :"Lastly, the learned advocate urges that R. 16(5) clearly contravenes the provisions of S. 5(vi) of the Act. This sub-rule has been held to be ultra vires by the High Court, and indeed, the learned Advocate General of Madras did not in the High Court, as before us, dispute that R. 16(5) was repugnant to S. 5(vi). That sub-rule, however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule". 12. This judgment does not show that the repugnancy of the rule was in controversy or the court pronounced its opinion upon the merits or it was necessary to do so. 13. The learned Solicitor General then contended before us that in their counter-affidavit filed in the High Court the appellants had accepted the position that R. 16(5) of the Turnover and Assessment Rules was ultra vires. But that will not carry the matter any further, because on a construction of the provisions of the Act this argument of repugnancy is not sustainable. 14. The Andhra Pradesh High Court rightly did not accept the view that R. 16(5) was ultra vires of the rule making authority : V. M. Syed Mohammed and Co. v. State of Andhra, 1956-7 STC 465 at p. 472 (Andhra). The same view was taken by the Mysore High Court in the State of Mysore v. Saravathulla and Co. 1958-9 STC 593 : (AIR 1958 Mys. 80). 15. A consideration of the relevant provisions of the Act and the rules made thereunder shows that the charging section is S. 3(1) and the general rule is taxation at multiple points on the total turnover of the dealer, but in the case of sale of certain specified articles a departure has been made and tax at single point is leviable provided certain conditions and restrictions as to licences which are envisaged in S. 5 and laid down in the rules are complied with and that R. 16(5) of the Turnover and Assessment Rules is not ultra vires. 16. It was then contended that the provision as to licensing and taxation in the case of licensed dealers and tanners at a single point and a taxation at multiple point in the case of unlicensed dealers were violative of Art. 14 of the Constitution. But we did not allow this point to be taken because it was not raised in the High Court and was raised for the first time in this Court. | 1[ds]10. The argument of inconsistency between R. 16(5) of the Turnover and Assessment Rules and S. 5(vi) of the Act which was accepted in the High Court receives no support from the language of that section which is a concessional provisions for making the sales of hides and skins liable to taxation at a single point; but that, as the opening words of the section show, is subject to restrictions and conditions prescribed in the rules and one of these conditions is the taking of a licence.All that R. 16(5) does is to emphasise the consequences of non-observance of the conditions which Ss. 5(vi) and 6-A have in clear terms prescribed.We find no inconsistency between the section and the Act. But it was submitted that this Court on appeal from a judgment of the Madras High Court had held R. 16(5) to be ultra vires the Act. That contention is based on the judgment of the Madras High Court in V. M. Syed Mohammed and Co. v. State of Madras, 1952-3 STC 367 : (AIR 1953 Mad 105 ), which on appeal was affirmed by this Court in 1954 SCR 1117 : (AIR 1954 SC 314 ). This contention is not well-founded12. This judgment does not show that the repugnancy of the rule was in controversy or the court pronounced its opinion upon the merits or it was necessary to do soBut that will not carry the matter any further, because on a construction of the provisions of the Act this argument of repugnancy is not sustainableBut we did not allow this point to be taken because it was not raised in the High Court and was raised for the first time in this Court. | 1 | 3,330 | 319 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the single point imposition of sales tax on hides and skins to be conditional on observing the condition of taking a licence. 10. The argument of inconsistency between R. 16(5) of the Turnover and Assessment Rules and S. 5(vi) of the Act which was accepted in the High Court receives no support from the language of that section which is a concessional provisions for making the sales of hides and skins liable to taxation at a single point; but that, as the opening words of the section show, is subject to restrictions and conditions prescribed in the rules and one of these conditions is the taking of a licence.All that R. 16(5) does is to emphasise the consequences of non-observance of the conditions which Ss. 5(vi) and 6-A have in clear terms prescribed.We find no inconsistency between the section and the Act. But it was submitted that this Court on appeal from a judgment of the Madras High Court had held R. 16(5) to be ultra vires the Act. That contention is based on the judgment of the Madras High Court in V. M. Syed Mohammed and Co. v. State of Madras, 1952-3 STC 367 : (AIR 1953 Mad 105 ), which on appeal was affirmed by this Court in 1954 SCR 1117 : (AIR 1954 SC 314 ). This contention is not well-founded. In that case, when it was in the Madras High Court, it was contended that the rules did not properly carry out the policy underlying the Act, which was to keep the price of hides and skins at a competitive level for the world market. It was there argued that hides and skins were articles much in demand in the foreign markets and their export was one of the main items of the foreign trade of the State of Madras which enjoyed considerable natural advantage in tanning because of the plentiful supply of "Avaram bark" which was specially suited for the purpose. It was also argued that untanned hides and skins were acquried locally or by import from other States and were either tanned in the State or exported and therefore the scheme of taxation was to levy the tax at a single point, i.e. at the stage when articles were tanned in the State or exported to foreign countries for tanning. For this reason multiple taxation was violative of S. 5(vi) of the Act. This, it appears, was not disputed by the Government and it was therefore held that R. 16(5) of the Turnover and Assessment Rules was ultra vires. But the question was really not relevant to the issue as was pointed out by Venkatarama Ayyar, J., at page 394 of STC : (at p. 115 of AIR) where he said :"Now the cotnention of the petitioners is that where there are sales by unlicensed dealers to unlicensed tanners or unlicensed dealers, there is the possibility of multiple taxation and that would be in violation of S. 5(vi). It is not disputed on behalf of the Government that Rule 16(5) is repugnant to S. 5(vi). It must therefore be held to be ultra vires. But this can bring no relief to the petitioners, as they are all licensed tanners and are in no manner hurt by the operation of R. 16(5). This was conceded by the learned Advocate for the petitioners". 11. This case was then brought in appeal to this Court and S. R. Das, J., (as he then was observed at page 1121 (of SCR) : (at p. 316 of AIR) :"Lastly, the learned advocate urges that R. 16(5) clearly contravenes the provisions of S. 5(vi) of the Act. This sub-rule has been held to be ultra vires by the High Court, and indeed, the learned Advocate General of Madras did not in the High Court, as before us, dispute that R. 16(5) was repugnant to S. 5(vi). That sub-rule, however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub-rule". 12. This judgment does not show that the repugnancy of the rule was in controversy or the court pronounced its opinion upon the merits or it was necessary to do so. 13. The learned Solicitor General then contended before us that in their counter-affidavit filed in the High Court the appellants had accepted the position that R. 16(5) of the Turnover and Assessment Rules was ultra vires. But that will not carry the matter any further, because on a construction of the provisions of the Act this argument of repugnancy is not sustainable. 14. The Andhra Pradesh High Court rightly did not accept the view that R. 16(5) was ultra vires of the rule making authority : V. M. Syed Mohammed and Co. v. State of Andhra, 1956-7 STC 465 at p. 472 (Andhra). The same view was taken by the Mysore High Court in the State of Mysore v. Saravathulla and Co. 1958-9 STC 593 : (AIR 1958 Mys. 80). 15. A consideration of the relevant provisions of the Act and the rules made thereunder shows that the charging section is S. 3(1) and the general rule is taxation at multiple points on the total turnover of the dealer, but in the case of sale of certain specified articles a departure has been made and tax at single point is leviable provided certain conditions and restrictions as to licences which are envisaged in S. 5 and laid down in the rules are complied with and that R. 16(5) of the Turnover and Assessment Rules is not ultra vires. 16. It was then contended that the provision as to licensing and taxation in the case of licensed dealers and tanners at a single point and a taxation at multiple point in the case of unlicensed dealers were violative of Art. 14 of the Constitution. But we did not allow this point to be taken because it was not raised in the High Court and was raised for the first time in this Court.
### Response:
1
### Explanation:
10. The argument of inconsistency between R. 16(5) of the Turnover and Assessment Rules and S. 5(vi) of the Act which was accepted in the High Court receives no support from the language of that section which is a concessional provisions for making the sales of hides and skins liable to taxation at a single point; but that, as the opening words of the section show, is subject to restrictions and conditions prescribed in the rules and one of these conditions is the taking of a licence.All that R. 16(5) does is to emphasise the consequences of non-observance of the conditions which Ss. 5(vi) and 6-A have in clear terms prescribed.We find no inconsistency between the section and the Act. But it was submitted that this Court on appeal from a judgment of the Madras High Court had held R. 16(5) to be ultra vires the Act. That contention is based on the judgment of the Madras High Court in V. M. Syed Mohammed and Co. v. State of Madras, 1952-3 STC 367 : (AIR 1953 Mad 105 ), which on appeal was affirmed by this Court in 1954 SCR 1117 : (AIR 1954 SC 314 ). This contention is not well-founded12. This judgment does not show that the repugnancy of the rule was in controversy or the court pronounced its opinion upon the merits or it was necessary to do soBut that will not carry the matter any further, because on a construction of the provisions of the Act this argument of repugnancy is not sustainableBut we did not allow this point to be taken because it was not raised in the High Court and was raised for the first time in this Court.
|
CHANDIGARH ADMINISTRATION Vs. HARI RAM | so far paid an amount of Rs.1,02,000/- and in compliance with the interim order dated 10.11.2008, the respondent has also deposited Rs.40,000/- in the High Court. The High Court held that further opportunity has to be given to the respondent to pay the outstanding dues and his case cannot be shut out by citing number of opportunities given to him to deposit the money. The High Court allowed the writ petition and directed the amount of Rs.40,000/- deposited by the respondent be returned to him so as to enable him to use the said amount in paying the outstanding dues of the lease of the commercial booth. Being aggrieved, the Chandigarh Administration has preferred this appeal. 7. We have heard the learned counsel appearing for both the parties and perused the impugned order and materials on record. 8. It is seen from the record that the allotment of commercial booth No.254, Sector-20D, Chandigarh was made to the respondent on 26.12.1996. As per the terms and conditions of the allotment, the appellant being the lessee was required to deposit the balance 75% within three annual equated installments along with the interest and annual ground rent a well. The respondent committed default in payment of first, second and third installments and also the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999. As pointed out by the Chief Administrator, Chandigarh in his order dated 20.08.2008, the respondent was given as many as twenty-six opportunities; but he has failed to deposit the dues. The slump in the business cannot be the reason for default in payment of the lease rent and the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999. 9. For holding that the cancellation of allotment would cause hardship to the respondent and that one more opportunity has to be given him to pay the outstanding dues, the High Court has relied upon in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and Others (2004) 2 SCC 130. In Teri Oat Estates, respondent thereon earlier paid the installment amount and during the pendency of the matter before the Court the respondent thereon paid a substantial amount towards the due payable together with the interest @ 12%. It is in those facts and circumstances, in Teri Oat Estates, the Supreme Court held that resumption of the land and the building would cause extreme hardship which may be faced by the parties and the same shall not ordinarily be resorted to. In order to maintain an appropriate balance, in Teri Oat Estates, the Supreme Court observed that the matter warrants application of the doctrine of proportionality. 10. In the present case, after the allotment, the respondent has paid only the initial payment and has not paid the first, second and third instalments and the ground rent which fell due on 25.12.1997, 21.12.1998 and 25.12.1999 and inspite of several opportunities, respondent has not paid the amount. When the respondent has consistently defaulted in payment of the premium/instalments, it is open to the competent authority to take action in accordance with the law. When the value is stated to be above Rs.26 lakhs in the year 2015, the appellant Administration cannot be asked to part with the land at the same rate as in the year 1996. Without keeping in view of the default committed by the respondent, the High Court was not right in setting aside the order of cancellation of allotment and directing the respondent to receive the outstanding dues. Since the allotment was made way back in 1996, the respondent cannot insist upon the payment of the then market value in the year 1996. 11. As on the date of impugned order of the High Court dated 26.07.2012, the respondent has paid only an amount of Rs.1,02,000/-. As seen from the order of the Chief Administrator, Chandigarh dated 20.08.2008, despite the statement made before the Estate Officer that the respondent is ready to deposit the balance, the amount has not been paid. In compliance of the order of this Court dated 26.03.2019, the respondent is said to have deposited Rs.1,50,000/- with the Chandigarh Administration. On direction from this Court, the learned counsel appearing for the appellant has filed an affidavit stating that as on 31.08.2015, an amount of Rs.1,91,114/- on account of ground rent and interest and a sum of Rs.2,735/- on account of service tax are due. In the affidavit filed on 19.08.2015, it is stated that as on the date, as per the collector rate, current market value of the booth is Rs.26,35,772/- plus Rs.48,576/- (construction charges) and the total is Rs.26,84,348/-. On further direction from this Court, the learned counsel appearing for the Chandigarh Administration has submitted that as on 2010, the then current market value of the booth was Rs.12,77,950/-. 12. Since the allotment of the respondent was of the year 1996 and considering the fact that the respondent has already deposited an amount of Rs.1,02,000/-, it would not be appropriate to direct the respondent to pay the current market value of the booth. In order to maintain balance between the interest of the appellant Administration and also the interest of the respondent-allottee and in the interest of justice, it would be appropriate to adopt the value of the booth as in 2010. Considering the facts and circumstances of the case and also the fact that the respondent has already deposited an amount of Rs.1,02,000/-, we deem it appropriate to direct the respondent to pay the then market value of the booth as of 2010 i.e. Rs.12,77,950/-. The learned counsel appearing for the respondent has submitted that the respondent has so far paid an amount of Rs.2,72,969/- which is inclusive of the property tax. Since the respondent claims to have been in enjoyment of the booth over the years, the property tax paid by him cannot be adjusted against the amount payable by the respondent.The amount of Rs.10,25,950/- (that is Rs.12,77,950/- less Rs.2,52,000 - amount already paid by the respondent) is payable by the respondent. | 1[ds]10. In the present case, after the allotment, the respondent has paid only the initial payment and has not paid the first, second and third instalments and the ground rent which fell due on 25.12.1997, 21.12.1998 and 25.12.1999 and inspite of several opportunities, respondent has not paid the amount. When the respondent has consistently defaulted in payment of the premium/instalments, it is open to the competent authority to take action in accordance with the law. When the value is stated to be above Rs.26 lakhs in the year 2015, the appellant Administration cannot be asked to part with the land at the same rate as in the year 1996. Without keeping in view of the default committed by the respondent, the High Court was not right in setting aside the order of cancellation of allotment and directing the respondent to receive the outstanding dues. Since the allotment was made way back in 1996, therespondent cannot insist upon the payment of the then market value in the year 1996.As on the date of impugned order of the High Court dated 26.07.2012, the respondent has paid only an amount of Rs.1,02,000/-. As seen from the order of the Chief Administrator, Chandigarh dated 20.08.2008, despite the statement made before the Estate Officer that the respondent is ready to deposit the balance, the amount has not been paid. In compliance of the order of this Court dated 26.03.2019, the respondent is said to have deposited Rs.1,50,000/- with the Chandigarh Administration. On direction from this Court, the learned counsel appearing for the appellant has filed an affidavit stating that as on 31.08.2015, an amount of Rs.1,91,114/- on account of ground rent and interest and a sum of Rs.2,735/- on account of service tax are due. In the affidavit filed on 19.08.2015, it is stated that as on the date, as per the collector rate, current market value of the booth is Rs.26,35,772/- plus Rs.48,576/- (construction charges) and the total is Rs.26,84,348/-. On further direction from this Court, the learned counsel appearing for the Chandigarh Administration has submitted that as on 2010, the then current market value of the booth was Rs.12,77,950/-.Since the allotment of the respondent was of the year 1996 and considering the fact that the respondent has already deposited an amount of Rs.1,02,000/-, it would not be appropriate to direct the respondent to pay the current market value of the booth. In order to maintain balance between the interest of the appellant Administration and also the interest of the respondent-allottee and in the interest of justice, it would be appropriate to adopt the value of the booth as in 2010. Considering the facts and circumstances of the case and also the fact that the respondent has already deposited an amount of Rs.1,02,000/-, we deem it appropriate to direct the respondent to pay the then market value of the booth as of 2010 i.e. Rs.12,77,950/-. The learned counsel appearing for the respondent has submitted that the respondent has so far paid an amount of Rs.2,72,969/- which is inclusive of the property tax. Since the respondent claims to have been in enjoyment of the booth over the years, the property tax paid by him cannot be adjusted against the amount payable by the respondent.The amount of Rs.10,25,950/- (that is Rs.12,77,950/- less Rs.2,52,000 - amount already paid by the respondent) is payable by the respondent.It is seen from the record that the allotment of commercial booth No.254, Sector-20D, Chandigarh was made to the respondent on 26.12.1996. As per the terms and conditions of the allotment, the appellant being the lessee was required to deposit the balance 75% within three annual equated installments along with the interest and annual ground rent a well. The respondent committed default in payment of first, second and third installments and also the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999. As pointed out by the Chief Administrator, Chandigarh in his order dated 20.08.2008, the respondent was given as many as twenty-six opportunities; but he has failed to deposit the dues. The slump in the business cannot be the reason for default in payment of the lease rent and the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999. | 1 | 1,773 | 767 | ### 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:
so far paid an amount of Rs.1,02,000/- and in compliance with the interim order dated 10.11.2008, the respondent has also deposited Rs.40,000/- in the High Court. The High Court held that further opportunity has to be given to the respondent to pay the outstanding dues and his case cannot be shut out by citing number of opportunities given to him to deposit the money. The High Court allowed the writ petition and directed the amount of Rs.40,000/- deposited by the respondent be returned to him so as to enable him to use the said amount in paying the outstanding dues of the lease of the commercial booth. Being aggrieved, the Chandigarh Administration has preferred this appeal. 7. We have heard the learned counsel appearing for both the parties and perused the impugned order and materials on record. 8. It is seen from the record that the allotment of commercial booth No.254, Sector-20D, Chandigarh was made to the respondent on 26.12.1996. As per the terms and conditions of the allotment, the appellant being the lessee was required to deposit the balance 75% within three annual equated installments along with the interest and annual ground rent a well. The respondent committed default in payment of first, second and third installments and also the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999. As pointed out by the Chief Administrator, Chandigarh in his order dated 20.08.2008, the respondent was given as many as twenty-six opportunities; but he has failed to deposit the dues. The slump in the business cannot be the reason for default in payment of the lease rent and the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999. 9. For holding that the cancellation of allotment would cause hardship to the respondent and that one more opportunity has to be given him to pay the outstanding dues, the High Court has relied upon in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and Others (2004) 2 SCC 130. In Teri Oat Estates, respondent thereon earlier paid the installment amount and during the pendency of the matter before the Court the respondent thereon paid a substantial amount towards the due payable together with the interest @ 12%. It is in those facts and circumstances, in Teri Oat Estates, the Supreme Court held that resumption of the land and the building would cause extreme hardship which may be faced by the parties and the same shall not ordinarily be resorted to. In order to maintain an appropriate balance, in Teri Oat Estates, the Supreme Court observed that the matter warrants application of the doctrine of proportionality. 10. In the present case, after the allotment, the respondent has paid only the initial payment and has not paid the first, second and third instalments and the ground rent which fell due on 25.12.1997, 21.12.1998 and 25.12.1999 and inspite of several opportunities, respondent has not paid the amount. When the respondent has consistently defaulted in payment of the premium/instalments, it is open to the competent authority to take action in accordance with the law. When the value is stated to be above Rs.26 lakhs in the year 2015, the appellant Administration cannot be asked to part with the land at the same rate as in the year 1996. Without keeping in view of the default committed by the respondent, the High Court was not right in setting aside the order of cancellation of allotment and directing the respondent to receive the outstanding dues. Since the allotment was made way back in 1996, the respondent cannot insist upon the payment of the then market value in the year 1996. 11. As on the date of impugned order of the High Court dated 26.07.2012, the respondent has paid only an amount of Rs.1,02,000/-. As seen from the order of the Chief Administrator, Chandigarh dated 20.08.2008, despite the statement made before the Estate Officer that the respondent is ready to deposit the balance, the amount has not been paid. In compliance of the order of this Court dated 26.03.2019, the respondent is said to have deposited Rs.1,50,000/- with the Chandigarh Administration. On direction from this Court, the learned counsel appearing for the appellant has filed an affidavit stating that as on 31.08.2015, an amount of Rs.1,91,114/- on account of ground rent and interest and a sum of Rs.2,735/- on account of service tax are due. In the affidavit filed on 19.08.2015, it is stated that as on the date, as per the collector rate, current market value of the booth is Rs.26,35,772/- plus Rs.48,576/- (construction charges) and the total is Rs.26,84,348/-. On further direction from this Court, the learned counsel appearing for the Chandigarh Administration has submitted that as on 2010, the then current market value of the booth was Rs.12,77,950/-. 12. Since the allotment of the respondent was of the year 1996 and considering the fact that the respondent has already deposited an amount of Rs.1,02,000/-, it would not be appropriate to direct the respondent to pay the current market value of the booth. In order to maintain balance between the interest of the appellant Administration and also the interest of the respondent-allottee and in the interest of justice, it would be appropriate to adopt the value of the booth as in 2010. Considering the facts and circumstances of the case and also the fact that the respondent has already deposited an amount of Rs.1,02,000/-, we deem it appropriate to direct the respondent to pay the then market value of the booth as of 2010 i.e. Rs.12,77,950/-. The learned counsel appearing for the respondent has submitted that the respondent has so far paid an amount of Rs.2,72,969/- which is inclusive of the property tax. Since the respondent claims to have been in enjoyment of the booth over the years, the property tax paid by him cannot be adjusted against the amount payable by the respondent.The amount of Rs.10,25,950/- (that is Rs.12,77,950/- less Rs.2,52,000 - amount already paid by the respondent) is payable by the respondent.
### Response:
1
### Explanation:
10. In the present case, after the allotment, the respondent has paid only the initial payment and has not paid the first, second and third instalments and the ground rent which fell due on 25.12.1997, 21.12.1998 and 25.12.1999 and inspite of several opportunities, respondent has not paid the amount. When the respondent has consistently defaulted in payment of the premium/instalments, it is open to the competent authority to take action in accordance with the law. When the value is stated to be above Rs.26 lakhs in the year 2015, the appellant Administration cannot be asked to part with the land at the same rate as in the year 1996. Without keeping in view of the default committed by the respondent, the High Court was not right in setting aside the order of cancellation of allotment and directing the respondent to receive the outstanding dues. Since the allotment was made way back in 1996, therespondent cannot insist upon the payment of the then market value in the year 1996.As on the date of impugned order of the High Court dated 26.07.2012, the respondent has paid only an amount of Rs.1,02,000/-. As seen from the order of the Chief Administrator, Chandigarh dated 20.08.2008, despite the statement made before the Estate Officer that the respondent is ready to deposit the balance, the amount has not been paid. In compliance of the order of this Court dated 26.03.2019, the respondent is said to have deposited Rs.1,50,000/- with the Chandigarh Administration. On direction from this Court, the learned counsel appearing for the appellant has filed an affidavit stating that as on 31.08.2015, an amount of Rs.1,91,114/- on account of ground rent and interest and a sum of Rs.2,735/- on account of service tax are due. In the affidavit filed on 19.08.2015, it is stated that as on the date, as per the collector rate, current market value of the booth is Rs.26,35,772/- plus Rs.48,576/- (construction charges) and the total is Rs.26,84,348/-. On further direction from this Court, the learned counsel appearing for the Chandigarh Administration has submitted that as on 2010, the then current market value of the booth was Rs.12,77,950/-.Since the allotment of the respondent was of the year 1996 and considering the fact that the respondent has already deposited an amount of Rs.1,02,000/-, it would not be appropriate to direct the respondent to pay the current market value of the booth. In order to maintain balance between the interest of the appellant Administration and also the interest of the respondent-allottee and in the interest of justice, it would be appropriate to adopt the value of the booth as in 2010. Considering the facts and circumstances of the case and also the fact that the respondent has already deposited an amount of Rs.1,02,000/-, we deem it appropriate to direct the respondent to pay the then market value of the booth as of 2010 i.e. Rs.12,77,950/-. The learned counsel appearing for the respondent has submitted that the respondent has so far paid an amount of Rs.2,72,969/- which is inclusive of the property tax. Since the respondent claims to have been in enjoyment of the booth over the years, the property tax paid by him cannot be adjusted against the amount payable by the respondent.The amount of Rs.10,25,950/- (that is Rs.12,77,950/- less Rs.2,52,000 - amount already paid by the respondent) is payable by the respondent.It is seen from the record that the allotment of commercial booth No.254, Sector-20D, Chandigarh was made to the respondent on 26.12.1996. As per the terms and conditions of the allotment, the appellant being the lessee was required to deposit the balance 75% within three annual equated installments along with the interest and annual ground rent a well. The respondent committed default in payment of first, second and third installments and also the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999. As pointed out by the Chief Administrator, Chandigarh in his order dated 20.08.2008, the respondent was given as many as twenty-six opportunities; but he has failed to deposit the dues. The slump in the business cannot be the reason for default in payment of the lease rent and the ground rent which fell due on 25.12.1997, 25.12.1998 and 25.12.1999.
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M/S.Purbanchal Cables & Conductors P.Ltd Vs. Assam State Electricity Board | consideration of an earlier judgment is made. It was held: “…When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviving and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons it is necessary that the earlier decision should be revised. When this Court decided questions of law, its decisions are, under Art. 141, binding on courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. This is not to say if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate the correct the error; but before a previous decision is pronounced to plainly erroneous the Court must be satisfied with fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend on several relevant considerations:-What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous there is such an error in the earlier view? What would be the impact of the error on the general administration of law or public good? Has the earlier decision been followed on subsequent occasions either by this Court or by High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions….” 66) We are in full agreement with the view expressed in Keshav Mills case (supra). The learned Senior Counsel Shri Rakesh Dwivedi has not been able to make out a case for reconsideration of the decision of this Court in Assam Small Scale Industries (supra). In fact, a plea for reconsideration of the same was rejected by a Division Bench of this Court in Shakti Tubes (supra). We are unable to agree with the argument of Shri Dwivedi and Shri Gupta that the provisions of the Act were not considered in its entirety. In fact, the entire scheme of the Act has been considered in the case of Rampur Fertilizers (supra) and specific answer to the issue under consideration was answered. 67) In the case of Ambika Prasad Mishra Vs. State of U.P. - (1980) 3 SCC 719 , His Lordship V.R. Krishna Iyer. J., speaking for the Constitution Bench held: “6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority “merely because it was badly argued, inadequately considered and fallaciously reasoned.”…” 68) In light of this dictum, and the factum that no case has been made out for reconsideration by the learned Senior Counsel appearing for the suppliers, we do not see any reason much or less good reason to doubt the correctness of the decision in Assam Small Scale Industries or Shakti Tubes (supra). When there are four decisions of this Court with regard to the applicability of the Act for contracts entered into prior to the commencement of the Act, and when the plea for reconsideration has been expressly rejected in the past, we are of the view, it would be against the spirit of the doctrine of stare decisis for us to take any view in divergence with same.69) Lastly, learned Senior Counsel for suppliers also contended that the extension of date of supply order, from time to time by Board, amounts to a novation of contract or supply order in terms of Section 62 of the Indian Contracts Act and, therefore, the new contract or supply order would be governed by the Act. In our opinion, the ground or issue of novation of Contract is a mixed question of fact and law and it is being raised, for the first time, at the time of hearing of the case before us which cannot be permitted to be raised. The said fact of novation or alteration of contract is required to be urged evidentially and scrutinised by the courts below. In absence of such factual findings, it is not possible to decide such a mixed question of law and facts. In Shakti Tubes Ltd. (supra), the issue of novation of contract was raised before this Court for the first time at the time of hearing. This Court declined to entertain such ground as being a mixed question of law and fact. This Court further observed that even on the merits of the case the escalation of price, reduction of the quantity of the supply order and extension of date of supply does not amount to novation or alteration in the supply order.Conclusion | 0[ds]66) We are in full agreement with the view expressed in Keshav Mills case (supra). The learned Senior Counsel Shri Rakesh Dwivedi has not been able to make out a case for reconsideration of the decision of this Court in Assam Small Scale Industries (supra). In fact, a plea for reconsideration of the same was rejected by a Division Bench of this Court in Shakti Tubes (supra). We are unable to agree with the argument of Shri Dwivedi and Shri Gupta that the provisions of the Act were not considered in its entirety. In fact, the entire scheme of the Act has been considered in the case of Rampur Fertilizers (supra) and specific answer to the issue under consideration wasIn light of this dictum, and the factum that no case has been made out for reconsideration by the learned Senior Counsel appearing for the suppliers, we do not see any reason much or less good reason to doubt the correctness of the decision in Assam Small Scale Industries or Shakti Tubes (supra). When there are four decisions of this Court with regard to the applicability of the Act for contracts entered into prior to the commencement of the Act, and when the plea for reconsideration has been expressly rejected in the past, we are of the view, it would be against the spirit of the doctrine of stare decisis for us to take any view in divergence with same.69) Lastly, learned Senior Counsel for suppliers also contended that the extension of date of supply order, from time to time by Board, amounts to a novation of contract or supply order in terms of Section 62 of the Indian Contracts Act and, therefore, the new contract or supply order would be governed by the Act. In our opinion, the ground or issue of novation of Contract is a mixed question of fact and law and it is being raised, for the first time, at the time of hearing of the case before us which cannot be permitted to be raised. The said fact of novation or alteration of contract is required to be urged evidentially and scrutinised by the courts below. In absence of such factual findings, it is not possible to decide such a mixed question of law and facts. In Shakti Tubes Ltd. (supra), the issue of novation of contract was raised before this Court for the first time at the time of hearing. This Court declined to entertain such ground as being a mixed question of law and fact. This Court further observed that even on the merits of the case the escalation of price, reduction of the quantity of the supply order and extension of date of supply does not amount to novation or alteration in the supply order. | 0 | 16,677 | 511 | ### 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:
consideration of an earlier judgment is made. It was held: “…When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviving and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons it is necessary that the earlier decision should be revised. When this Court decided questions of law, its decisions are, under Art. 141, binding on courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. This is not to say if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate the correct the error; but before a previous decision is pronounced to plainly erroneous the Court must be satisfied with fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend on several relevant considerations:-What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous there is such an error in the earlier view? What would be the impact of the error on the general administration of law or public good? Has the earlier decision been followed on subsequent occasions either by this Court or by High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions….” 66) We are in full agreement with the view expressed in Keshav Mills case (supra). The learned Senior Counsel Shri Rakesh Dwivedi has not been able to make out a case for reconsideration of the decision of this Court in Assam Small Scale Industries (supra). In fact, a plea for reconsideration of the same was rejected by a Division Bench of this Court in Shakti Tubes (supra). We are unable to agree with the argument of Shri Dwivedi and Shri Gupta that the provisions of the Act were not considered in its entirety. In fact, the entire scheme of the Act has been considered in the case of Rampur Fertilizers (supra) and specific answer to the issue under consideration was answered. 67) In the case of Ambika Prasad Mishra Vs. State of U.P. - (1980) 3 SCC 719 , His Lordship V.R. Krishna Iyer. J., speaking for the Constitution Bench held: “6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority “merely because it was badly argued, inadequately considered and fallaciously reasoned.”…” 68) In light of this dictum, and the factum that no case has been made out for reconsideration by the learned Senior Counsel appearing for the suppliers, we do not see any reason much or less good reason to doubt the correctness of the decision in Assam Small Scale Industries or Shakti Tubes (supra). When there are four decisions of this Court with regard to the applicability of the Act for contracts entered into prior to the commencement of the Act, and when the plea for reconsideration has been expressly rejected in the past, we are of the view, it would be against the spirit of the doctrine of stare decisis for us to take any view in divergence with same.69) Lastly, learned Senior Counsel for suppliers also contended that the extension of date of supply order, from time to time by Board, amounts to a novation of contract or supply order in terms of Section 62 of the Indian Contracts Act and, therefore, the new contract or supply order would be governed by the Act. In our opinion, the ground or issue of novation of Contract is a mixed question of fact and law and it is being raised, for the first time, at the time of hearing of the case before us which cannot be permitted to be raised. The said fact of novation or alteration of contract is required to be urged evidentially and scrutinised by the courts below. In absence of such factual findings, it is not possible to decide such a mixed question of law and facts. In Shakti Tubes Ltd. (supra), the issue of novation of contract was raised before this Court for the first time at the time of hearing. This Court declined to entertain such ground as being a mixed question of law and fact. This Court further observed that even on the merits of the case the escalation of price, reduction of the quantity of the supply order and extension of date of supply does not amount to novation or alteration in the supply order.Conclusion
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0
### Explanation:
66) We are in full agreement with the view expressed in Keshav Mills case (supra). The learned Senior Counsel Shri Rakesh Dwivedi has not been able to make out a case for reconsideration of the decision of this Court in Assam Small Scale Industries (supra). In fact, a plea for reconsideration of the same was rejected by a Division Bench of this Court in Shakti Tubes (supra). We are unable to agree with the argument of Shri Dwivedi and Shri Gupta that the provisions of the Act were not considered in its entirety. In fact, the entire scheme of the Act has been considered in the case of Rampur Fertilizers (supra) and specific answer to the issue under consideration wasIn light of this dictum, and the factum that no case has been made out for reconsideration by the learned Senior Counsel appearing for the suppliers, we do not see any reason much or less good reason to doubt the correctness of the decision in Assam Small Scale Industries or Shakti Tubes (supra). When there are four decisions of this Court with regard to the applicability of the Act for contracts entered into prior to the commencement of the Act, and when the plea for reconsideration has been expressly rejected in the past, we are of the view, it would be against the spirit of the doctrine of stare decisis for us to take any view in divergence with same.69) Lastly, learned Senior Counsel for suppliers also contended that the extension of date of supply order, from time to time by Board, amounts to a novation of contract or supply order in terms of Section 62 of the Indian Contracts Act and, therefore, the new contract or supply order would be governed by the Act. In our opinion, the ground or issue of novation of Contract is a mixed question of fact and law and it is being raised, for the first time, at the time of hearing of the case before us which cannot be permitted to be raised. The said fact of novation or alteration of contract is required to be urged evidentially and scrutinised by the courts below. In absence of such factual findings, it is not possible to decide such a mixed question of law and facts. In Shakti Tubes Ltd. (supra), the issue of novation of contract was raised before this Court for the first time at the time of hearing. This Court declined to entertain such ground as being a mixed question of law and fact. This Court further observed that even on the merits of the case the escalation of price, reduction of the quantity of the supply order and extension of date of supply does not amount to novation or alteration in the supply order.
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Thakur Bhim Singh by Lrs and Anr Vs. Thakur Kan Singh | for or against the party who did the act or made the declaration. ... But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour. 18. The above pass age, we are of the view, does not really assist the defendant in this case. What was held by the House of Lords in the case of Shephard &Anr. (supra) was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their interest as they acted without the knowledge of the facts. In the instant case, we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest. The evidence regarding such conduct and declarations is not being used in his favour but against the legal representative of Bharat Singh i.e. the defendant who would have become entitled to claim a share in the suit house if it had formed part of his estate. Such conduct or declaration would be admissible even according to the above decision of the House of Lords in which the statement of law in Snel ls Equity to the effect `but subsequent declarations are admissible as evidence only against the party who made them, and not in his favour is quoted with approval. The declarations made by Bharat Singh would be admissible as admissions under t he provisions of the Indian Evidence Act being statements made by him against his proprietary interest under section 21 and section 32(3) of the Indian Evidence ActThe defendant cannot also derive any assistance from the decision of t his Court in Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood Hasan(1). The question before the Court in the case of Bibi Siddiqa Fatima (supra) was whether a property which had been purchased by a husband in his wifes name out of the fund belonging to a waqf of which he was a Mutawalli could be claimed by the wife as her own property. This Court held that the wife who was the ostensible owner could not be treated as a real owner having regard to the fact that the purchase money had come out of a fund belonging to a waqf over which her husband who was the Mutawalli had no uncontrolled or absolute interest. In reaching the above conclusion, this Court observed thus:We may again emphasize that in a case of t his nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired. The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf. 19. It was next contended that the defendant had spent money on the repairs and reconstruction of the building subsequent to the date of the patta and that therefore, he must be held to have acquired some interest in it. We have gone through the evidence bearing on the above question. We are satisfied that the defendant has not established that he had spent any money at all for construction and repairs. Even if he has spent some money in that way with the knowledge of the actual state of affairs, it would not in law confer on the defendant any proprietary interest in the property.It is also significant that neither Gad Singh during his life time nor his children after his death have la id any claim to a share in the suit house which they were entitled to claim alongwith the defendant if it was in fact a part of the estate of Bharat Singh. Their conduct also probabilities the case of the plaintiffs that Bharat Singh did not intend to retain for himself any interest in the suit house. 20. On the material placed before us, we are satisfied that the transaction under which the patta was obtained was not a benami transaction and that Bharat Singh had acquired the suit house with his money with the intention of constituting plaintiff No. 2 as the absolute owner thereof. Plaintiff No. 2 is, therefore, entitled to a decree for possession of the suit house. 21. The trial court passed a decree directing the defendant to pay damages for use and occupation in respect of the suit house at the rate of Rs. 50/- per month from September 20, 1956 till the possession of the house was delivered to the plaintiffs. The operation of the decree of the trial court was stayed by the High Court during the pendency of the appeal before it. In view of the decree passed by the High Court, the defendant has continued to be in possession of the suit house till now. Nearly twenty years have elapsed from the date of the institution of the suit. In the circumstances, we are of the view that the defendant should be directed to pay mesne profits at the rate of Rs. 50/- per month till today and that an enquiry should be made by the trial court under Order 20, Rule 12 of the Code of Civil Procedure to determine the mesne profits payable by the defendant hereafter till the date of delivery of possession. | 1[ds]4. It is thus seen that the defendant put forward a two-fold claim to the suit house-one on the basis of the right of survivorship another on the basis of a joint purchase along with Bharat Singh. Even though in one part of the written statement, he declined to admit the existence of the patta, in paragraph 13 of the written statement which is extracted above, he put forward the plea that the plaintiffs were at the most holding the property as benamdars. He, however, did not claim that he was entitled to the property as an heir of Bharat Singh alongwith plaintiff No. 1. an d Gad Singh who would have inherited the estate of Bharat Singh on his death being his nearest heirs.is admitted on all hands that though Bharat Singh and the defendant were living in the suit house from the year 1928, it continued to be the property of the Maharaja of Bikaner till the date on which the patta (Exh. 4) was issued by the Patta Court of Bikaner and that on the issue of the patta, the State Government ceased to be its owner. It is also not disputed that the patta constituted the title deed in respect of the suit house and it was issued in the names of the plaintiffs on receipt of a sum of Rs. 5, 000. On January 11, 1930, the defendant had made an application, a certified copy of which is marked as Exhibit A-116 to the Revenue Minister of the State of Bikaner making enquiry about the price of the suit house on coming to know that the State Government intended to sell it. After the above application was made, the defendant left the service of the State of Bikaner and went to Banaras for studies. Bharat Singh who was also an employee of the State Government was working as the Aid-de-Camp of the Maharaja in 1939. At the request of Bharat Singh, an order was made by the Maharaja on May 4, 1939 sanctioning the sale of the suit house for a sum of Rs. 5, 000. Exhibit A-118 is the certified copy of the said order. Exhibit A-120 is a certified copy of the order of Tehsil Malmandi showing that a sum of Rs. 5, 000 had been deposited on behalf of Bharat Singh towards the price of the suit house. It also shows that Bharat Singh was asked to intimate the name of the person in whose favour the patta should be prepared. Presumably, the patta was issued in the names of the plaintiffs as desired by Bharat Singh and Exhibit A-121 shows that it was handed over on September 30, 194 0. The patta was produced before the trial court by the plaintiffs.By the time the patta was issued in the names of the plaintiffs, the mother of plaintiff No. 2 had died. He was about eight years of age in 1940 and he and his younger brother, Dalip Singh were under the protection of Bharat Singh who was a bachelor. They were staying with him in the suit house. The defendant also was residing in it. The plaintiffs who claimed title to the property under the patta in the course of the trial attempted to prove that the sum of Rs. 5, 000 which was paid by way of consideration for the patta by Bharat Singh came out of the jewels of the mother of plaintiff No. 2 which had come into the possession of Bharat Singh on her death . The plaintiff No. 2 who gave evidence in the trial court stated that he had not given any money to Bharat Singh for the purchase of the house but he had come to know from his father, plaintiff No. 1 that it had been purchased with his money. Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) to whose evidence we will make a reference in some detail at a later stage also stated that they had heard from Bharat Singh that the jewels of the mother of plaintiff No. 2 were with him suggesting that they could have been the source of the price house. Plaintiff No. 1 who could have given evidence on the above question did not enter the witness box. It is stated that he was a person of weak mind and after the death of Bharat Singh was be having almost like a mad man. The defendant stated in the course of his evidence that the mother of plaintiff No. 2 had gold jewels weighing about 3-4 tolas only. In this state of evidence, it is difficult to hold that the plaintiffs have establish ed that the consideration for the suit house was paid by them. The finding of the trial court that the house had been purchased by Bharat Singh for the plaintiffs with their money cannot be upheld. The case of the defendant that the price of the suit house was paid out of the funds belonging to him and Bharat Singh has been rejected both by the trial court and the High Court. On going through the evidence adduced by the defendant, we feel that there is no reason for us to disturb the concurrent findings arrived at by the trial court and the High Court on the above question.plaint does not disclose the name of the person or persons who paid the sale price of the suit house. The suit is based on the patta standing in the names of the plaintiffs. In the written statement of the defendant, there was an allegation to the effect that even though the patta was standing in the names of the plaintiffs, they were only benamidars and the real title was with Bharat Singh and the defendant. The particulars of the circumstances which compelled Bharat Singh or the defendant to take the patta in the names of the plaintiffs were not disclosed although it was stated t hat it had been done owing to some political and other surrounding circumstances and for the safety of the property. From the evidence led by the parties, we are satisfied that they knew during the trial of the suit that the question whether the transfer effected under the patta was a benami transaction or not arose for consideration in the case. Even in the appeal before the High Court, the main question on which arguments were addressed was whether the transaction was a benami transaction or not. Merely because the plaintiffs attempted to prove in the trial court that the money paid for purchasing the house came out of their funds, they cannot in the circumstances of this case be prevented from claiming title to the property on the basis that even though Bharat Singh had paid the consideration therefore, plaintiff No. 2 alone was entitled to the suit house.the above case, the Court distinguished the decision in Trojan. Ltd. v. RM. N. N. Haggappa Chettiar(1) on which much reliance was placed by the learned counsel for the defendant before us. In the case of Trojan. Ltd. (supra), this Court came to the conclusion that the alternative claim on which relief was sought was not at all within the knowledge of the parties in the course of the trial. The case before us is not of the nature.In Ismail Mussajee Mookerdum v. Hafiz Boo(2) the plaintiff laid claim to a property which had been transferred in her name by her mother alleging that she had paid the purchase money to her mother. The court came to the conclusion that she had failed to prove that she had paid the consideration. Still a decree was made in her favour holding that she had become the owner of the property by virtue of the transfer in her favour even though consideration had not been paid by her since it had been established in the case that her mother intended to transfer the beneficial interest in the property in her favour. This is borne out from the following passage at page 95:In her evidence, which was very confused, she tried to say that she paid that purchase-money to her mother. This was clearly untrue: as both Courts have found. The fact, therefore, remains that the properties purchased by the sale proceeds were purchased no doubt in Hafiz Boos name, but were purchased out of funds emanating from her mothers estate. This circumstance no doubt, if taken alone, affords evidence that the transaction was benami, but there is, in their Lordships opinion, enough in the facts of the case to negative any such inference.. Moreover no plea was raised on behalf of the defendant before the High Court in this case contending that the High Court should not go into the question whether the transfer under the patta was a benami transaction or not. We, therefore, reject the above contention and proceed to examine whether the High Court was right in arriving at the conclusion that the plaintiffs were only benamidars holding the property for the benefit of its real owner , Bharat Singh as the consideration therefore had emanated from him.Two kinds of benami transactions are generally recognized in India. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed a s a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The difference between the two kinds of benami transactions referred to above lies in the fact that whereas in the former case, there is an operative transfer from the transfer to the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance. One common feature, however, in both these cases is that the real title is divorced from the ostensible title and they are vested in different persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in section 82 ofthe Indian Trusts Act, 1882 which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.12. The principle governing the determination of the question whether a transfer is a benami transaction o r not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc.Even though there is a slight variation between what is stated by D.W. 6 and what is contained in the judgment of the trial court with regard to certain details, we do not feel that the said variation is of any substantial nature. The evidence of D.W. 6 suggests that Bharat Singh was of the view even during his life time that the suit house belonged to plaintiffs and not to himself. Even though an application had bee n made by the defendant to treat D.W. 6 as hostile, we feel that this part of the evidence of D.W. 6 cannot be rejected on that ground since it is consistent with the evidence of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3).It is seen fro m the judgment of the High Court that the effect of the statement of Kesri Singh (P.W.3) in his deposition that Bharat Singh had told him that the suit house was the property of plaintiff No. 2 has not been considered. The High Court while dealing with the evidence of Jaswant Singh (P.W. 2) and Kesri Singh (P.W. 3) laid more emphasis on those parts of their evidence where there was a reference to the alleged utilisation of the jewels or moneys belonging to the plaintiffs by Bharat Singh for the purpose of acquiring the suit house. The High Court has also observed in the course of its judgment that neither of them had stated that Bharat Singh had told them that he was purchasing or had purchased the suit house as a gift to Bhim Singh and Himmat Singh. The above observation does not appear to be consistent with the evidence of Kesri Singh (P.W. 3) discussed above.18. The above pass age, we are of the view, does not really assist the defendant in this case. What was held by the House of Lords in the case of Shephard. (supra) was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their interest as they acted without the knowledge of the facts. In the instant case, we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest. The evidence regarding such conduct and declarations is not being used in his favour but against the legal representative of Bharat Singh i.e. the defendant who would have become entitled to claim a share in the suit house if it had formed part of his estate. Such conduct or declaration would be admissible even according to the above decision of the House of Lords in which the statement of law in Snel ls Equity to the effect `but subsequent declarations are admissible as evidence only against the party who made them, and not in his favour is quoted with approval. The declarations made by Bharat Singh would be admissible as admissions under t he provisions of the Indian Evidence Act being statements made by him against his proprietary interest under section 21 and section 32(3) of the Indian Evidence ActThe defendant cannot also derive any assistance from the decision of t his Court in Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood Hasan(1).have gone through the evidence bearing on the above question. We are satisfied that the defendant has not established that he had spent any money at all for construction and repairs. Even if he has spent some money in that way with the knowledge of the actual state of affairs, it would not in law confer on the defendant any proprietary interest in the property.It is also significant that neither Gad Singh during his life time nor his children after his death have la id any claim to a share in the suit house which they were entitled to claim alongwith the defendant if it was in fact a part of the estate of Bharat Singh. Their conduct also probabilities the case of the plaintiffs that Bharat Singh did not intend to retain for himself any interest in the suit house20. On the material placed before us, we are satisfied that the transaction under which the patta was obtained was not a benami transaction and that Bharat Singh had acquired the suit house with his money with the intention of constituting plaintiff No. 2 as the absolute owner thereof. Plaintiff No. 2 is, therefore, entitled to a decree for possession of the suit house21. The trial court passed a decree directing the defendant to pay damages for use and occupation in respect of the suit house at the rate of Rs. 50/- per month from September 20, 1956 till the possession of the house was delivered to the plaintiffs. The operation of the decree of the trial court was stayed by the High Court during the pendency of the appeal before it. In view of the decree passed by the High Court, the defendant has continued to be in possession of the suit house till now. Nearly twenty years have elapsed from the date of the institution of the suit. In the circumstances, we are of the view that the defendant should be directed to pay mesne profits at the rate of Rs. 50/- per month till today and that an enquiry should be made by the trial court under Order 20, Rule 12 of theCode of Civil Procedure to determine the mesne profits payable by the defendant hereafter till the date of delivery of possession.is stated that the defendant had again been employed in the service of the State of Bikaner. The patta was issued in the names of plaintiffs 1 and 2 at the request of Bharat Singh. Even though the defendant stated in the written statement that the patta had been taken in the names of the plaintiffs owing to certain political circumstances, he had not disclosed in the course of his evidence those circumstances which compelled Bharat Singh to secure the patta in the names of the plaintiffs, though at one stage, he stated that it was under his advice that Bharat Singh got the patta in the names of the plaintiffs. Bharat Singh had no motive to suppress from the knowledge of the public that he had acquired the property. It was suggested in the course of the arguments that he had taken the patta in the names of the plaintiffs because he was in the service of the State. We do not find any substance in this submission because the property was being purchased from the State Government itself and there was no need for him to shield his title from the knowledge of the State Governmentappears that Bharat Singh acquired the suit house for the benefit of plaintiff No. 2 for the following circumstances: The first circumstance is th at the original patta had been handed over by Bharat Singh to plaintiff No. 2 on his passing B. Sc. Examination. This fact is proved by the evidence of plaintiff No. 2 and it is corroborated by the fact that the patta was produced by the plaintiffs before the Court. In the course of his evidence, the defendant no doubt stated that the patta had been stolen by plaintiff No. 2 from the suit house during the twelve days following the death of Bharat Singh when the keys of Bharat Singhs residence had been handed over to plaintiff No. 2 by the defendant. It is difficult to believe the above statement of the defendant because of two circumstances-(i) that the defendant did not state in the written statement that the patta had been stolen by plaintiff No. 2 and (ii) that within a month or two after the death of Bharat Singh, plaintiff No. 2 wrote a letter which is marked as Exhibit A- 124 to the defendant stating that the rumour which the defendant was spreading that plaintiff No. 2 had stolen some articles from the suit house was not true since whenever plaintiff No. 2 opened room or any of the almirahs of Bharat Singh in the suit house, Devi Singh the son of the defendant was keeping watch over him. T hat letter has been produced by the defendant and there is no reference in it to a false rumour being spread about the theft of the patta by plaintiff No. 2. Plaintiff No. 2 however, while asserting his claim to the suit house in the course of that letter stated that he had seen that the patta had been executed in his favour; and that the patta contained his name. The defendant does not appear to have sent any reply to Exhibit A. 124 nor did he call upon the plaintiffs to ret urn the patta to him. He did not also file a complaint stating that the patta had been stolen by plaintiff No. 2. We are of the view that there is no reason to disbelieve the evidence of plaintiff No. 2 that the patta had been handed over to him by Bharat Singh on his passing the B.Sc. examination. This conduct of Bharat Singh establishes that it was the intention of Bharat Singh when he secured the patta from the State Government in the names of the plaintiffs the plaintiff No. 2 whom he loved should become the owner. It is no doubt true that the name of plaintiff No. 1 is also included in the patta. It may have been so included by way of abundant caution as plaintiff No. 2 was a minor when the patta was issued. The above circumstance is similar to the one which persuaded their Lordships of the Privy Council in the case of Mohammad Sadiq Ali Khan (supra) to hold that the property involved in that case belonged to the person in whose favour the conveyance had been executed.The second circumstance which supports the view that Bharat Singh intended that plaintiff No. 2 should become the owner of the suit house is proved by the declarations made by Bharat Singh regarding the title to the suit house. Jas want Singh (P.W. 2) was a former Prime Minister of the State of Bikaner. His wife was a cousin of plaintiff No. 1, Bharat Singh and the defendant. Being a close relative of Bharat Singh who was also the Aid-de-Camp of the Maharaja of Bikaner, he was quite intimate with Bharat Singh who used to discuss with him about his personal affairs. P.W. 2 has stated in the course of his evidence that Bharat Singh thought it proper to purchase the house in the name of plaintiff No. 2 and that he intended to make plaintiff No. 2 his heir and successor. He has also stated that Bharat Singh had expressed his desire to give all his property to plaintiff No. 2 by a will and that he had told Kesri Singh (P.W. 3) just a day prior to his (Bharat Singhs) death that a will was to be executed. This statement of Jaswant Singh (PW. 2) is corroborated by the evidence of Kesri Singh (P.W. 3) whose wife was also a cousin of Bharat Singh, plaintiff No. 1 and the defendant.14. There is no reason to disbelieve the evidence of these two witnesses. Their evidence is corroborated by the deposition of Dr. Himmat Singh (D.W. 6) who was the Secretary of a Club in Bikaner of which Bharat Singh was a member. He was examined by the defendant himself as his witness | 1 | 9,610 | 4,259 | ### 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:
for or against the party who did the act or made the declaration. ... But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour. 18. The above pass age, we are of the view, does not really assist the defendant in this case. What was held by the House of Lords in the case of Shephard &Anr. (supra) was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their interest as they acted without the knowledge of the facts. In the instant case, we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest. The evidence regarding such conduct and declarations is not being used in his favour but against the legal representative of Bharat Singh i.e. the defendant who would have become entitled to claim a share in the suit house if it had formed part of his estate. Such conduct or declaration would be admissible even according to the above decision of the House of Lords in which the statement of law in Snel ls Equity to the effect `but subsequent declarations are admissible as evidence only against the party who made them, and not in his favour is quoted with approval. The declarations made by Bharat Singh would be admissible as admissions under t he provisions of the Indian Evidence Act being statements made by him against his proprietary interest under section 21 and section 32(3) of the Indian Evidence ActThe defendant cannot also derive any assistance from the decision of t his Court in Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood Hasan(1). The question before the Court in the case of Bibi Siddiqa Fatima (supra) was whether a property which had been purchased by a husband in his wifes name out of the fund belonging to a waqf of which he was a Mutawalli could be claimed by the wife as her own property. This Court held that the wife who was the ostensible owner could not be treated as a real owner having regard to the fact that the purchase money had come out of a fund belonging to a waqf over which her husband who was the Mutawalli had no uncontrolled or absolute interest. In reaching the above conclusion, this Court observed thus:We may again emphasize that in a case of t his nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired. The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf. 19. It was next contended that the defendant had spent money on the repairs and reconstruction of the building subsequent to the date of the patta and that therefore, he must be held to have acquired some interest in it. We have gone through the evidence bearing on the above question. We are satisfied that the defendant has not established that he had spent any money at all for construction and repairs. Even if he has spent some money in that way with the knowledge of the actual state of affairs, it would not in law confer on the defendant any proprietary interest in the property.It is also significant that neither Gad Singh during his life time nor his children after his death have la id any claim to a share in the suit house which they were entitled to claim alongwith the defendant if it was in fact a part of the estate of Bharat Singh. Their conduct also probabilities the case of the plaintiffs that Bharat Singh did not intend to retain for himself any interest in the suit house. 20. On the material placed before us, we are satisfied that the transaction under which the patta was obtained was not a benami transaction and that Bharat Singh had acquired the suit house with his money with the intention of constituting plaintiff No. 2 as the absolute owner thereof. Plaintiff No. 2 is, therefore, entitled to a decree for possession of the suit house. 21. The trial court passed a decree directing the defendant to pay damages for use and occupation in respect of the suit house at the rate of Rs. 50/- per month from September 20, 1956 till the possession of the house was delivered to the plaintiffs. The operation of the decree of the trial court was stayed by the High Court during the pendency of the appeal before it. In view of the decree passed by the High Court, the defendant has continued to be in possession of the suit house till now. Nearly twenty years have elapsed from the date of the institution of the suit. In the circumstances, we are of the view that the defendant should be directed to pay mesne profits at the rate of Rs. 50/- per month till today and that an enquiry should be made by the trial court under Order 20, Rule 12 of the Code of Civil Procedure to determine the mesne profits payable by the defendant hereafter till the date of delivery of possession.
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1
### Explanation:
date of delivery of possession.is stated that the defendant had again been employed in the service of the State of Bikaner. The patta was issued in the names of plaintiffs 1 and 2 at the request of Bharat Singh. Even though the defendant stated in the written statement that the patta had been taken in the names of the plaintiffs owing to certain political circumstances, he had not disclosed in the course of his evidence those circumstances which compelled Bharat Singh to secure the patta in the names of the plaintiffs, though at one stage, he stated that it was under his advice that Bharat Singh got the patta in the names of the plaintiffs. Bharat Singh had no motive to suppress from the knowledge of the public that he had acquired the property. It was suggested in the course of the arguments that he had taken the patta in the names of the plaintiffs because he was in the service of the State. We do not find any substance in this submission because the property was being purchased from the State Government itself and there was no need for him to shield his title from the knowledge of the State Governmentappears that Bharat Singh acquired the suit house for the benefit of plaintiff No. 2 for the following circumstances: The first circumstance is th at the original patta had been handed over by Bharat Singh to plaintiff No. 2 on his passing B. Sc. Examination. This fact is proved by the evidence of plaintiff No. 2 and it is corroborated by the fact that the patta was produced by the plaintiffs before the Court. In the course of his evidence, the defendant no doubt stated that the patta had been stolen by plaintiff No. 2 from the suit house during the twelve days following the death of Bharat Singh when the keys of Bharat Singhs residence had been handed over to plaintiff No. 2 by the defendant. It is difficult to believe the above statement of the defendant because of two circumstances-(i) that the defendant did not state in the written statement that the patta had been stolen by plaintiff No. 2 and (ii) that within a month or two after the death of Bharat Singh, plaintiff No. 2 wrote a letter which is marked as Exhibit A- 124 to the defendant stating that the rumour which the defendant was spreading that plaintiff No. 2 had stolen some articles from the suit house was not true since whenever plaintiff No. 2 opened room or any of the almirahs of Bharat Singh in the suit house, Devi Singh the son of the defendant was keeping watch over him. T hat letter has been produced by the defendant and there is no reference in it to a false rumour being spread about the theft of the patta by plaintiff No. 2. Plaintiff No. 2 however, while asserting his claim to the suit house in the course of that letter stated that he had seen that the patta had been executed in his favour; and that the patta contained his name. The defendant does not appear to have sent any reply to Exhibit A. 124 nor did he call upon the plaintiffs to ret urn the patta to him. He did not also file a complaint stating that the patta had been stolen by plaintiff No. 2. We are of the view that there is no reason to disbelieve the evidence of plaintiff No. 2 that the patta had been handed over to him by Bharat Singh on his passing the B.Sc. examination. This conduct of Bharat Singh establishes that it was the intention of Bharat Singh when he secured the patta from the State Government in the names of the plaintiffs the plaintiff No. 2 whom he loved should become the owner. It is no doubt true that the name of plaintiff No. 1 is also included in the patta. It may have been so included by way of abundant caution as plaintiff No. 2 was a minor when the patta was issued. The above circumstance is similar to the one which persuaded their Lordships of the Privy Council in the case of Mohammad Sadiq Ali Khan (supra) to hold that the property involved in that case belonged to the person in whose favour the conveyance had been executed.The second circumstance which supports the view that Bharat Singh intended that plaintiff No. 2 should become the owner of the suit house is proved by the declarations made by Bharat Singh regarding the title to the suit house. Jas want Singh (P.W. 2) was a former Prime Minister of the State of Bikaner. His wife was a cousin of plaintiff No. 1, Bharat Singh and the defendant. Being a close relative of Bharat Singh who was also the Aid-de-Camp of the Maharaja of Bikaner, he was quite intimate with Bharat Singh who used to discuss with him about his personal affairs. P.W. 2 has stated in the course of his evidence that Bharat Singh thought it proper to purchase the house in the name of plaintiff No. 2 and that he intended to make plaintiff No. 2 his heir and successor. He has also stated that Bharat Singh had expressed his desire to give all his property to plaintiff No. 2 by a will and that he had told Kesri Singh (P.W. 3) just a day prior to his (Bharat Singhs) death that a will was to be executed. This statement of Jaswant Singh (PW. 2) is corroborated by the evidence of Kesri Singh (P.W. 3) whose wife was also a cousin of Bharat Singh, plaintiff No. 1 and the defendant.14. There is no reason to disbelieve the evidence of these two witnesses. Their evidence is corroborated by the deposition of Dr. Himmat Singh (D.W. 6) who was the Secretary of a Club in Bikaner of which Bharat Singh was a member. He was examined by the defendant himself as his witness
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Bishan Devi Tr. Lrs Vs. Delhi Development Authority & Others | SLP(C) No. 13551 of 2015, SLP(C) No. 14802 of 2015, SLP(C) No. 15451 of 2015, SLP(C) No. 15454 of 2015, SLP(C) No. 16995 of 2015, SLP(C) No. 17006 of 2015, SLP(C) No. 17248 of 2015, SLP(C) No. 17740 of 2015, SLP(C) No. 18480 of 2015, SLP(C) No. 18485 of 2015, SLP(C) No. 19204 of 2015, SLP(C) No. 19452 of 2015, SLP(C) No. 19555 of 2015, SLP(C) No. 22067 of 2015, SLP(C) No. 22069 of 2015, SLP(C) No. 22994 of 2015, SLP(C) No. 22995 of 2015, SLP(C) No. 23742 of 2015, SLP(C) No. 24957 of 2015, SLP(C) No. 24963 of 2015, SLP(C) No. 25524 of 2015, SLP(C) No. 26493 of 2015, SLP(C) No. 26606 of 2015, SLP(C) No. 26724 of 2015, SLP(C) No. 27318 of 2015, SLP(C) No. 27485 of 2015, SLP(C) No. 27729 of 2015, SLP(C) No. 28002 of 2015, SLP(C) No. 28579 of 2015, SLP(C) No. 28745 of 2015, SLP(C) No. 28768 of 2015, SLP(C) No. 28922 of 2015, SLP(C) No. 28927 of 2015, SLP(C) No. 28929 of 2015, SLP(C) No. 29537 of 2015, SLP(C) No. 30148 of 2015, SLP(C) No. 30211 of 2015, SLP(C) No. 30224 of 2015, SLP(C) No. 30228 of 2015, SLP(C) No. 30234 of 2015, SLP(C) No. 30238 of 2015, SLP(C) No. 30243 of 2015, SLP(C) No. 30244 of 2015, SLP(C) No. 30275 of 2015, SLP(C) No. 30733 of 2015, SLP(C) No. 30734 of 2015, SLP(C) No. 30735 of 2015, SLP(C) No. 31250 of 2015, SLP(C) No. 31366 of 2015, SLP(C) No. 31673 of 2015, SLP(C) No. 32614 of 2015, SLP(C) No. 32617 of 2015, SLP(C) No. 32640 of 2015, SLP(C) No. 32642 of 2015, SLP(C) No. 32643 of 2015, SLP(C) No. 32645 of 2015, SLP(C) No. 32647 of 2015, SLP(C) No. 33344 of 2015, SLP(C) No. 34619 of 2015, SLP(C) No. 35231 of 2015, SLP(C) No. 35243 of 2015, SLP(C) No. 545 of 2016, SLP(C) No. 848 of 2016, SLP(C) No. 1686 of 2016, SLP(C) No. 1698 of 2016, SLP(C) No. 1700 of 2016, SLP(C) No. 2070 of 2016, SLP(C) No. 2839 of 2016, SLP(C) No. 4221 of 2016, SLP(C) No. 7016 of 2016, SLP(C) No. 7564 of 2016, SLP(C) No. 7568 of 2016, SLP(C) No. 7609 of 2016, SLP(C) No. 7735 of 2016, SLP(C) No. 7761 of 2016, SLP(C) No. 8770 of 2016, SLP(C) No. 8793 of 2016, SLP(C) No. 8798 of 2016, SLP(C) No. 8808 of 2016, SLP(C) No. 8811 of 2016, SLP(C) No. 8812 of 2016, SLP(C) No. 8813 of 2016, SLP(C) No. 8817 of 2016, SLP(C) No. 8818 of 2016, SLP(C) No. 8819 of 2016, SLP(C) No. 8820 of 2016, SLP(C) No. 8829 of 2016, SLP(C) No. 8836 of 2016, SLP(C) No. 9061 of 2016, SLP(C) No. 9184 of 2016, SLP(C) No. 10009 of 2016, SLP (C) No. 10495 of 2016, SLP(C) No. 11339 of 2016, SLP(C) No. 11349 of 2016, SLP(C) No. 11356 of 2016, SLP(C) No. 11372 of 2016, SLP(C) No. 11380 of 2016, SLP(C) No. 11383 of 2016, SLP(C) No. 11448 of 2016, SLP(C) No. 11458 of 2016, SLP(C) No. 17354 of 2016, SLP(C) No. 19966 of 2016, SLP(C) No. 19972 of 2016, SLP(C) No. 19976 of 2016, SLP(C) No. 23083 of 2016, SLP(C) No. 23085 of 2016, SLP(C) No. 23095 of 2016, SLP(C) No. 23642 of 2016, SLP(C) No. 23646 of 2016, SLP(C) No. 23659 of 2016, SLP(C) No. 24307 of 2016, SLP(C) No. 24313 of 2016, SLP(C) No. 24321 of 2016, SLP(C) No. 25136 of 2016, SLP(C) No. 28183 of 2016, SLP(C) No. 28270 of 2016, SLP (C) No. 28272 of 2016, SLP(C) No. 28274 of 2016, SLP(C) No. 28279 of 2016, SLP(C) No. 28281 of 2016, SLP(C) No. 28661 of 2016, SLP(C) No. 28668 of 2016, SLP(C) No. 30426 of 2016, SLP(C) No. 31440 of 2016, SLP(C) No. 31442 of 2016, SLP(C) No. 31444 of 2016, SLP(C) No.31480 of 2016, SLP(C) No. 32231 of 2016, SLP(C) No. 32996 of 2016, SLP(C) No.35159 of 2016, SLP(C) No. 35160 of 2016, SLP(C) No. 35163 of 2016, SLP(C) No. 36421 of 2016, SLP(C) No. 36792 of 2016, SLP(C) No. 37159 of 2016, SLP(C) No. 37657 of 2016, SLP(C) No. 38279 of 2016, SLP(C) No. 38283 of 2016, SLP(C) No. 38284 of 2016, SLP(C) No. 38286 of 2016, SLP(C) No. 38292 of 2016, SLP(C) No. 38295 of 2016, SLP(C) No. 38300 of 2016, SLP(C) No. 38303 of 2016, SLP(C) No. 38354 of 2016, SLP(C) No. 38358 of 2016, SLP(C) No. 38364 of 2016, SLP(C) No. 38367 of 2016, SLP(C) No. 38370 of 2016, SLP(C) No. 38373 of 2016, SLP(C) No. 1498 of 2017, SLP(C) No. 1499 of 2017, SLP(C) No. 1639 of 2017, SLP(C) No. 1724 of 2017, SLP(C) No. 1726 of 2017, SLP(C) No. 1728 of 2017, SLP(C) No. 1729 of 2017, SLP(C) No. 1730 of 2017, SLP(C) No. 1731 of 2017, SLP(C) No. 3826 of 2017, SLP(C) No. 6911 of 2017, SLP(C) No. 8928 of 2017, SLP(C) No. 8929 of 2017, SLP(C) No. 9586 of 2017, SLP(C) No. 9734 of 2017, SLP(C) No. 10556-10557 of 2017, SLP(C) No. 11873 of 2017.2. Heard the learned senior counsel/learned counsel appearing for the parties at length.Arguments concluded. | 1[ds]2. Heard the learned senior counsel/learned counsel appearing for the parties at length.Arguments concluded. | 1 | 1,680 | 20 | ### 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:
SLP(C) No. 13551 of 2015, SLP(C) No. 14802 of 2015, SLP(C) No. 15451 of 2015, SLP(C) No. 15454 of 2015, SLP(C) No. 16995 of 2015, SLP(C) No. 17006 of 2015, SLP(C) No. 17248 of 2015, SLP(C) No. 17740 of 2015, SLP(C) No. 18480 of 2015, SLP(C) No. 18485 of 2015, SLP(C) No. 19204 of 2015, SLP(C) No. 19452 of 2015, SLP(C) No. 19555 of 2015, SLP(C) No. 22067 of 2015, SLP(C) No. 22069 of 2015, SLP(C) No. 22994 of 2015, SLP(C) No. 22995 of 2015, SLP(C) No. 23742 of 2015, SLP(C) No. 24957 of 2015, SLP(C) No. 24963 of 2015, SLP(C) No. 25524 of 2015, SLP(C) No. 26493 of 2015, SLP(C) No. 26606 of 2015, SLP(C) No. 26724 of 2015, SLP(C) No. 27318 of 2015, SLP(C) No. 27485 of 2015, SLP(C) No. 27729 of 2015, SLP(C) No. 28002 of 2015, SLP(C) No. 28579 of 2015, SLP(C) No. 28745 of 2015, SLP(C) No. 28768 of 2015, SLP(C) No. 28922 of 2015, SLP(C) No. 28927 of 2015, SLP(C) No. 28929 of 2015, SLP(C) No. 29537 of 2015, SLP(C) No. 30148 of 2015, SLP(C) No. 30211 of 2015, SLP(C) No. 30224 of 2015, SLP(C) No. 30228 of 2015, SLP(C) No. 30234 of 2015, SLP(C) No. 30238 of 2015, SLP(C) No. 30243 of 2015, SLP(C) No. 30244 of 2015, SLP(C) No. 30275 of 2015, SLP(C) No. 30733 of 2015, SLP(C) No. 30734 of 2015, SLP(C) No. 30735 of 2015, SLP(C) No. 31250 of 2015, SLP(C) No. 31366 of 2015, SLP(C) No. 31673 of 2015, SLP(C) No. 32614 of 2015, SLP(C) No. 32617 of 2015, SLP(C) No. 32640 of 2015, SLP(C) No. 32642 of 2015, SLP(C) No. 32643 of 2015, SLP(C) No. 32645 of 2015, SLP(C) No. 32647 of 2015, SLP(C) No. 33344 of 2015, SLP(C) No. 34619 of 2015, SLP(C) No. 35231 of 2015, SLP(C) No. 35243 of 2015, SLP(C) No. 545 of 2016, SLP(C) No. 848 of 2016, SLP(C) No. 1686 of 2016, SLP(C) No. 1698 of 2016, SLP(C) No. 1700 of 2016, SLP(C) No. 2070 of 2016, SLP(C) No. 2839 of 2016, SLP(C) No. 4221 of 2016, SLP(C) No. 7016 of 2016, SLP(C) No. 7564 of 2016, SLP(C) No. 7568 of 2016, SLP(C) No. 7609 of 2016, SLP(C) No. 7735 of 2016, SLP(C) No. 7761 of 2016, SLP(C) No. 8770 of 2016, SLP(C) No. 8793 of 2016, SLP(C) No. 8798 of 2016, SLP(C) No. 8808 of 2016, SLP(C) No. 8811 of 2016, SLP(C) No. 8812 of 2016, SLP(C) No. 8813 of 2016, SLP(C) No. 8817 of 2016, SLP(C) No. 8818 of 2016, SLP(C) No. 8819 of 2016, SLP(C) No. 8820 of 2016, SLP(C) No. 8829 of 2016, SLP(C) No. 8836 of 2016, SLP(C) No. 9061 of 2016, SLP(C) No. 9184 of 2016, SLP(C) No. 10009 of 2016, SLP (C) No. 10495 of 2016, SLP(C) No. 11339 of 2016, SLP(C) No. 11349 of 2016, SLP(C) No. 11356 of 2016, SLP(C) No. 11372 of 2016, SLP(C) No. 11380 of 2016, SLP(C) No. 11383 of 2016, SLP(C) No. 11448 of 2016, SLP(C) No. 11458 of 2016, SLP(C) No. 17354 of 2016, SLP(C) No. 19966 of 2016, SLP(C) No. 19972 of 2016, SLP(C) No. 19976 of 2016, SLP(C) No. 23083 of 2016, SLP(C) No. 23085 of 2016, SLP(C) No. 23095 of 2016, SLP(C) No. 23642 of 2016, SLP(C) No. 23646 of 2016, SLP(C) No. 23659 of 2016, SLP(C) No. 24307 of 2016, SLP(C) No. 24313 of 2016, SLP(C) No. 24321 of 2016, SLP(C) No. 25136 of 2016, SLP(C) No. 28183 of 2016, SLP(C) No. 28270 of 2016, SLP (C) No. 28272 of 2016, SLP(C) No. 28274 of 2016, SLP(C) No. 28279 of 2016, SLP(C) No. 28281 of 2016, SLP(C) No. 28661 of 2016, SLP(C) No. 28668 of 2016, SLP(C) No. 30426 of 2016, SLP(C) No. 31440 of 2016, SLP(C) No. 31442 of 2016, SLP(C) No. 31444 of 2016, SLP(C) No.31480 of 2016, SLP(C) No. 32231 of 2016, SLP(C) No. 32996 of 2016, SLP(C) No.35159 of 2016, SLP(C) No. 35160 of 2016, SLP(C) No. 35163 of 2016, SLP(C) No. 36421 of 2016, SLP(C) No. 36792 of 2016, SLP(C) No. 37159 of 2016, SLP(C) No. 37657 of 2016, SLP(C) No. 38279 of 2016, SLP(C) No. 38283 of 2016, SLP(C) No. 38284 of 2016, SLP(C) No. 38286 of 2016, SLP(C) No. 38292 of 2016, SLP(C) No. 38295 of 2016, SLP(C) No. 38300 of 2016, SLP(C) No. 38303 of 2016, SLP(C) No. 38354 of 2016, SLP(C) No. 38358 of 2016, SLP(C) No. 38364 of 2016, SLP(C) No. 38367 of 2016, SLP(C) No. 38370 of 2016, SLP(C) No. 38373 of 2016, SLP(C) No. 1498 of 2017, SLP(C) No. 1499 of 2017, SLP(C) No. 1639 of 2017, SLP(C) No. 1724 of 2017, SLP(C) No. 1726 of 2017, SLP(C) No. 1728 of 2017, SLP(C) No. 1729 of 2017, SLP(C) No. 1730 of 2017, SLP(C) No. 1731 of 2017, SLP(C) No. 3826 of 2017, SLP(C) No. 6911 of 2017, SLP(C) No. 8928 of 2017, SLP(C) No. 8929 of 2017, SLP(C) No. 9586 of 2017, SLP(C) No. 9734 of 2017, SLP(C) No. 10556-10557 of 2017, SLP(C) No. 11873 of 2017.2. Heard the learned senior counsel/learned counsel appearing for the parties at length.Arguments concluded.
### Response:
1
### Explanation:
2. Heard the learned senior counsel/learned counsel appearing for the parties at length.Arguments concluded.
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S.P. Jain Vs. Union of India and Others | also the original proceedings which are initiated by a petition. Such as original petition is required to be verified under the Code in Order 6, rule 15. To construe it otherwise would lead to impossible results. ( 58 ) BOTH these decisions were brought to the notice of the learned judge deciding the Clive Mills case [1964] 34 Comp. Cas. 731 and the Bengal Luxmi Cotton Mills case [1965] 35 comp. Cas. 187, and these decisions have been distinguished by him merely by saying that the decisions have no application where the allegations of fraud, misconduct or misappropriation have been made. The distinction drawn, appears to be that a petition not containing allegations allegation of fraud or other grave charges like misconduct or mismanagement, etc. , can be verified by affidavits on information and belief, but a petition containing allegations of fraud or grave charge like misconduct, mismanagement etc. , is required to be verified by an affidavit on personal knowledge or by supporting affidavits of other persons having personal knowledge. With respect we are unable to concur in this view, because it would involve reading the relevant rule 21 framed by the Supreme Court differently. ( 59 ) TURNING to the facts of the case, it is not in dispute that the affidavit verifying the petition as well as the affidavit supplying further particulars have been sworn in accordance with the provisions of rule 21 of the Supreme Court Rules and the Form prescribed therein, as well as the regulations and the Form prescribed therein. The source of information and the grounds of belief have been with sufficient particularity stated in the affidavit. The petitioner had thus fulfilled the requirements of law and the petition , therefore, for the reasons already stated, is not liable to be dismissed in limine. similarly, for reasons already stated the petition is not liable to be dismissed on merits also at this stage merely on the ground that the affidavit verifying the petition or the affidavit supplying particular have not been sworn on personal having personal knowledge of the fact alleged in the petition. ( 60 ) WE have already reproduced paragraph 11 of the affidavit furnishing further particular, and in that affidavit Mr. Dang has stated that at the hearing evidence will be led in proof of the facts alleged in the petition. We have pointed out above the various provisions in the amended Act and the Regulations which empower the Tribunal to enforce the attendance of witnesses, examine witnesses on oath, or make orders relating to reception of evidence taken on affidavits. It would be for the Tribunal, after the reply of the respondents has been filed to decide whether it should record the evidence of these witnesses or order receiving evidence taken on affidavits. Mr. Mody however contended that as the Union of India did not state on affidavit that it was not possible for them to file affidavits of other persons who were acquainted with the facts, the union of India should not now be allowed to lead oral evidence. According to Mr. Mody, the union of India was flouting the provisions of law and deliberately avoiding filling of affidavits of persons acquainted with facts even though it was possible for them to do so. We are not impressed by this argument. Mr. Mody has not pointed out any express provisions of law or any decision except Bengal Luxmi Cotton Mills case [1965] 35 Comp. Cas. 187, which says that the failure on the part of the petitioners to file supporting affidavits of persons acquainted with facts disentitles him form leading evidence at the hearing of the petition. With the said decision, with respect we have been unable to concur. Further, there is no material on record form which it could be inferred that though it was possible for the Union of India to file affidavits of persons acquainted with the facts of the case, the Union of India is deliberately avoiding to file their affidavits. Mr. Khambatta on behalf of the petitioner had also argued that the appellant respondent No. 2 was not entitled to contend that the petition should be dismissed in limine inasmuch as respondent No. 2 himself has waived this defect in the affidavit in verification of the petition and has taken part in the proceedings of the petition since after its admission. It was urged that the petition was admitted on 12th October, 1964, and thereafter, respondent No. 2 appeared, filed affidavits for interim orders, and thus having taken part in the proceedings has submitted to the orders in applications for interim reliefs. Respondent No. 2 therefore is not entitled to raise the plea that the petition should be dismissed in limine because the affidavit verifying the petition was defective inasmuch as it was not based on personal knowledge. Mr. Mody on, the other hand, contended that the petitioner is not entitled to argue that respondent no. 2 had waived his right to claim that the petition should be dismissed in limine inasmuch as the plea of waiver had not been raised by the petitioner in any of the affidavits which have been allowed to be taken on record. It appears that the Tribunal has allowed the counsel for the petitioner to argue the point of waiver inasmuch as it was of the opinion that the plea of waiver was raised by the counsel on the basis of the records in the petition. In our opinion, Mr. Mody right in his contention that the plea , it should not be allowed to be raised in arguments. However, it is not necessary to go further in this mater inasmuch as the Tribunal has not decided this point, nor has the application been disposed of on his ground. On the other hand, the tribunal has dismissed respondent No. 2 s application on merits. For the reasons already stated, in our opinion, the Tribunal was right in dismissing respondent No. 2s aforesaid application NO. 37 of 1965. | 0[ds]( 24 ) WE find it difficult to accept the arguments of Mr. Mody. We have already referred to the relevant provisions, and it is abundantly clear that the proceedings before the Tribunal are civil proceedings. There is also hardly any doubt that the intention of the legislature as indicated in the various provisions of the Act is that the procedure that has to be followed by the Tribunal in dealing with the matters arising before it to make rules consistent with the procedure prescribed by the Civil Procedure Code. The power conferred on the Supreme Court to frame rules is to make rules consistent with the Code of Civil Procedure, and the powers conferred on the tribunal to frame regulations has to be exercised subject to the provisions of the Act, and the rules made thereunder by the Supreme Court. It would necessarily follow that the expressions used in the rules or regulations connote the same meaning as the respective expressions used in the Civil Procedure Code connote. Rule 21 has provided that the petition shall be verified by an affidavit. The purpose of the affidavit required to be filed under rule 21 in From No. 3 is nothing but verification of the averments made in the petition. The verification of the contents of a pleading and evidence in proof of allegations made in the pleading are two distinct and separate terms well understood in the Civil Procedure Code. The relevant rule relating to the verification of a pleading is contained in rules 15 (1) and (2) of Order 6, and it provides :ve as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. (2)The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.( 30 ) THESE decisions indicate that the limitation placed in Order 19, rule 3, that the affidavits must be confined to such facts which the deponent is able to prove on his personal knowledge, has application only to those affidavits must have been directed by a court to be filed in proof of the facts of the hearing of matters other than the hearing of interlocutory applications. Other affidavits could be on personal knowledge as well as on the information and the grounds of belief are stated with sufficient particularity. An affidavit which is required to be filed in verification of a petition under section 398 of the Act is not an affidavit directed by court to be filed under order 19 in proof of facts. There is therefore no warrant to hold that it must be confined only to such fact as are within the personal knowledge of the deponent. The object of requiring a pleading or the contents of a petitions to be verified is to ensure that false allegations are not freely and recklessly made therein. As pointed out by Mr. Justice Mody in Consolidated foods Corporations case (1960) 62 Bom. L. R. 799, 801, the basic requirements of verification of a pleading is that the deponent must clearly disclose which of the statements in the affidavit are true to his knowledge and which of the statements are based on information and belief, disclosing the sources of his informations and the grounds of belief with sufficient particularity, so as to enable the court to decided whether is should proceed with the petition is required to enable the court to decide whether it should proceed with the petition or the plaint. All that is required at that stage is to ascertain that the allegations therein are not made recklessly but are made after due inquiry and with due care. That objective is achieved when the deponent clearly states the sources of information on the basis of which allegations in a plaint or a petition have been made. Assuming, therefore, that the provisions of Order 19 have any application to an affidavit in verification of a petition required to be made under rule 21, in our opinion, the3 affidavit filed by Mr. Dang in this case fulfil the general requirements of Order 19, rule 3. In our opinion, however, Order 19, rule 3, had no application in view of the express provision made in rule 21 and in the prescribed form of verification of an affidavit required to be filed under the said rule 21. We have already reproduced the relevant portion of the Form above, and it is apparent that it is open to a deponent of an affidavit in verification of a petition under section 398 to verify it on information received by him and believed to be true. Clause (b) (v) ofn (1) of section 643 of the Act empowers the Supreme Court to make rules generally for all applications to be made to the court under the rules must be consistent with the Code of civil Procedure. Rule 21 and the form prescribed cannot be said to be in any manner inconsistent with the provisions of order 19, Rule 21 is bad in law because it is inconsistent with the provision of the Civil Procedure Code. Having regard to the provisions of section, 643, rule 21 and the Form prescribed, in our opinion, Order 19 has no application to affidavits verifying of the affidavits by Mr. Dang was in accordance with the said rule and the Form prescribedThe arguments has not impressed us. The intention of the legislature disclosed in the provisions of the Act and in particular in section 10c read together with the statutory rules framed by the Supreme Court and the regulations framed by the Tribunal appears to us to be that the procedure prescribed for hearing of applications by the Tribunal is in substance the same as is the procedure prescribed by the Civil Procedure Code for trial of civil suits. A plaint is required to be verified at the foot of a pleading as provided in rule 15 of order 6. A petition is required to be verified by an affidavit, but on the same basis as provided in rule 15. The mode of verification is different, but the quality of verification prescribed for a plaint as well as a petition is the same. After the plaint is received by court, a summons is issued to the other side. There is a similar provisions after admission of a petition. After service of the summons with a copy of the plaint, the defendant is required to file his written statement by way of reply to the allegations in the plaint. Rule 34 requires a persons who intends to oppose the petition to file his grounds in opposition or his affidavit in opposition within a certain time prescribed therein. It is thereafter that a suit or a petition comes up for hearing. Rule 34 relates to the powers as are vested in a court under the Civil Procedure Code when trying a suit. They include the power to summon and examine witnesses on oath, reception of evidence taken on affidavits, and issuing commissions for the examination of witnesses. The powers conferred on the Tribunal for hearing of a petition are thus in substance similar to the powers conferred on the court by the Code of civil Procedure relating to the trial of suits. Whether at the trial evidence should be directed to be led by filing affidavits or not is a matter left to the discretion of the court, and that would depend on the circumstances of each case. It is, therefore, not possible for us to accept that contention( 32 ) THE matter could be looked at from a different aspect. It would be seen that the affidavit verifying a petition has to be filed by the petitioner, or where there are more than one petitioner by one of the petitioners, and in the case of a petition presented by a body corporate, by a director, secretary or other principal officer thereof. Petitions under section 397 and 398 are filed either by members of a company or the Union of India, who complain that they are subjected to oppression by persons in management of a company, or who complain that the affairs of a company are conducted in a manner prejudicial to the public interest, or in a manner prejudicial to the interest of the company. It would necessarily follow that such members or the Union of india are unlikely to know all the material facts from their personal knowledge. Necessarily, the averments in a petition will have to be made by them on information received by them from various sources and believed by them to be true. To accept the argument of Mr. Mody that the affidavit varifying a petition under section 397 and 398 must be on personal knowledge could result in practically taking away the rights conferred by sections 397 and 398 on members in minority and the Union of India to get relief in cases of oppression and mismanagement. Mr. Mody further argued that it may be that a petitioner himself may not be able to verify all the allegations in a petition from his personal knowledge, but he may be able to procure and file along with the petition supporting affidavits of person from whom he had obtained the information. Those persons would certainly be in a position to verify the affidavits on their personal knowledge, and that according to Mr. Mody is the scheme of the Rules framed framed under the Companies Act in general and the import of rule 21 in particular. To accept the argument of Mr. Mody would necessarily involve reading more in rule 21 than it contains. The affidavit in verification had to be made by the petitioner, and , where there are more than one petitioner, by one of them. In the case of a corporate body being the petitioner, the affidavit is to be made either by a director or a secretary or other principal officer. The rule does not provide that in the event a petitioner is not able to verify the petition on personal knowledge, the petitioner should file supporting affidavits of persons having personal knowledge in respect of those facts. Further, the said provisions of section 10c and regulation (1) of Chapter 20, rule 1, empower of the Tribunal to receive evidence either on affidavits or by examination of witnesses on oath before it. There is, therefore, no warrant to hold that the scheme as disclosed by the relevant provisions is that the allegations in a petition under section 397 or section 398 alleging fraud, misconduct, misappropriation, etc. , or, in the event the petitioner is unable to so verify, then by supporting affidavits of other persons having personal knowledge, and that if a petitioner fails to do so he is not entitled to lead oral evidence to prove the allegations( 36 ) PLACING reliance on these observations, Mr. Mody has argued that the affidavit on information, even if the source has been disclosed, is no evidence at all even for the purpose of issuing a summons against theargument overlooks that the learned Chief Justice was not considering the question of maintainability of the petition, but was considering the question as to whether the petitioner had proved his case at the trial after both the parties had tendered their evidence. However, it may be pointed out that the other two learned judges have not gone to the extent the learned Chief Justice has gone. Lord Justice Rigby in his judgment observed:I have pay the slightest attention myself to affidavits of that kind, whether they be used on interlocutory applications or on final ones, because the rule is perfectly general that, when a deponent makes a statement on his information and belief, he must state the ground of that information and belief.( 37 ) LORD Justice Vaughan Williams appears to have concurred with the view of Lord Justice rigby( 40 ) ON these observations Mr. Mody had placed reliance in support of his argument that the petition verified by an affidavit on information is liable to be dismissed inNow, it has to be noticed that the learned judges were not considering the question as to whether the application of the plaintiff was liable to be dismissed in limine. On the other hand, the learned judges were considering the question about the sufficiency of evidence tendered at the trial. It may also be pointed out that since such affidavits have been on the grounds of necessity held to be sufficient evidence to enable a court to grant reliefs, we fail to see such an affidavit then should not be sufficient to enable a court to admit a petition and call upon the respondent to file his reply( 45 ) PLACING reliance on these observations, Mr. Mody contended that when a petition for winding up is supported by such a statutory affidavit it is liable to be dismissed inWe are unable to read in these observations any support to Mr. Modys arguments. The learned judge has only stated as a fact what the company did. The learned judge has not held that had the company applied that the petition should be dismissed in limine, the petition would have been dismissed, because there was no affidavit on personal knowledge filed in support of the winding up petition. On the other hand, the earlier remarks of the learned judgebut it is sufficient to require an answer indicates that if a petition is verified by a statutory affidavit, then that calls for an answer to the petition by the respondent. Mr. Mody argued that that may be so, because the aforesaid rule 30 framed under the English Companies Act says that it is prima facie evidence. Rule 21 of the rules framed by the Supreme Court does not say that the statutory affidavit prescribed by it is prima facie evidence of the allegation verified by the affidavit. Formerly, the rules framed by some of the High Courts were in identical terms as those of rule 30 of the said english rules. The omission of the clausethat it shall be prima facie evidence is significant, and it indicates that no more a statutory affidavit on information only is sufficient to sustain the petition. The argument has little force. It is true that rule 21 framed by the Supreme Court does not say that,such affidavits shall be sufficient prima facie evidence of the statement in the petition.But, if the rules are read as a whole, there is no doubt left that the procedure prescribed by the Supreme Court is that if the court finds that the petition is supported by a statutory affidavit, it has to admit it and issue a summons to the respondent. The summons issued has to be served on the respondent in the manner prescribed in the rules. After the summons is served on the respondent, the respondent has to give notice to the petitioner if he intends to appear at the hearing and oppose the petition. Rule 34 further requires the respondent to furnish a copy of his grounds of opposition to the petitioner within a certain time. The matter then comes up for hearing. There can hardly be any doubt that a petition verified by a statutory affidavit is sufficient to call for an answer by the respondent. Whether the statutory affidavit sworn on information only would at the trial be prime facie evidence in proof of the statements made in petition or not is a matter altogether different( 47 ) THE court observed:That affidavit is always necessary but not always sufficient.Counsel for the petitioner then undertook to file a further affidavit. The case was adjourned. It is on this question that Mr. Mody has placed reliance. With respect, we must confess we fail to appreciate how the question supports the principle contention of Mr. Mody. All that has been stated is that the statutory affidavit is not sufficient evidence to grant the relief claimed on the ground of fraud. The observation itself indicates that even when this defect was notices at the trial, it was within the power of the judge to allow the petitioner to tender further evidence and adjourn the case thereafter( 50 ) THESE observations clearly indicate that in cases where allegations of fraud or other grave charges have been made, if possible, the court should examine witnesses who are acquainted with the facts of the case. These observations have been made in spite of the fact that the general practice upon petitions under the Companies Act was to tender evidence by affidavits. We are no doubt dealing here with a case arising out of the Companies Act, but not with the general practice hitherto followed by courts. We have to deal with the procedure which the Act has now prescribed for the Tribunal to adopt. We have already observed that by the amending Act of 1963, certain radical changes have been introduced. There is a departure from the normal rule of leaving the dispute between members to the domestic forum, the court stepping in only in exceptional circumstances. Under sections 397 and 398, powers have been conferred on courts to grant relief either at the instance of members in minority holding, certain percentage of shares or at the instance of the Union of India where the oppression of the minority was complained of, or where the complaint was that the affairs of the company were conducted or likely to be conducted in such manner as were prejudicial to the pubic interest or to the interest of the company. The Act has been further amended and trail of petitions under section 397 and 398 has now been transferred to the Tribunal. The Tribunal has now also been conferred with further powers under section 388b. Under that section, the Union of India could state a case asking the tribunal to record a finding that a person is not fit to hold the post of a director in a particular company or any other company. Section 10c further confers on the Tribunal certain powers which are exercisable by a civil court. The reading of section 10c, which also has been brought on the statute book by the said amending Act, discloses that the Tribunal is clothed with powers of discovery and investigations of the documents, enforcing the attendance of the witnesses, compelling production, of documents, examining witnesses on oath, reception of evidence taken on affidavits and issuing commissions for examining witnesses. The Tribunal has also been empowered to frame regulations regulating its procedure. The regulations which the Tribunal is empowered to prescribe have to be in conformity with the Code of Civil Procedure and the rules framed by the civil courts. The regulations in Chapter 20 disclose that the Tribunal has been clothed with the powers which a civil court can exercise under Orders 18,19 and 26 of the Code of Civil Procedure. Reading of Order 18, which relates to the recording of oral evidence, shows that it confers a right on a party to apply to the court to issue summons to a witness it wants to examine. The provisions of law and the rules framed thereunder leave no doubt that the intention of the legislature is not that evidence on petition should be confined only to affidavits, but, on the other hand, the intention of the legislature as indicated in the amended provisions appears to be that in appropriate cases oral evidence should be recorded. Whether in a given case a party should be permitted to lead oral evidence or ordered to prove facts by filing affidavits would depend on the circumstances of that case( 52 ) THESE observations also do not fully support the appellant in his contention that in petitions founded on fraud, misappropriation, etc. , all the material evidence has to be tendered in the shape of supporting affidavit of the petitioner or the supporting affidavits of other persons at the time of filing of the petition, and failure on the part of the petitioner to do so, would result in the dismissal of the petition in limine, or the contention of the appellant that the only oral evidence which could be accepted at the hearing of the petition is calling the deponents of the affidavits for. The learned judge was dealing with the question of the sufficiency of evidence tendered before him at the time of the disposal of the application finally. It may also be pointed out that the observations do not rule out the acceptance of oral evidence. The observations of the learned judge:The application is disposed of on the basis of the averments in the pleadings, unless the matter is directed to be tried on evidence indicate that the reception of oral evidence in an appropriate case is not rules out( 54 ) IT is indeed true that the aforesaid observations fully support the contention raised by Mr. Mody on behalf of the appellant. With utmost respect, and for the reasons already recorded, we find considerable difficulty in concurring with these observations or taking a similar view as is taken by the learned judge. None of the English decisions, on which Mr. Mody has placed reliance, has gone to the extent the learned judge has gone( 57 ) IN In re Albert David Ltd. (1964) 68 C. W. N. 163. Mr. Justice Mallick held that :er 19, rule 3, Civil Procedure Code, applies to affidavits simpliciter which can be used as evidence in suit. Unless the averments in the affidavit are true to knowledge, they cannot be treated as evidence being hit by hearsay rule. The position is different in the case of a petition, even if the petition initiates a proceeding. It must be verified as laid down in Order 6, rule 15. If order 19, rule 3, is to be applied to a petition, theninterlocutory matters in order 19, rule 3, must be given a very extended meaning, so as to cover not only what is commonly understood as interlocutory application in a suit but also the original proceedings which are initiated by a petition. Such as original petition is required to be verified under the Code in Order 6, rule 15. To construe it otherwise would lead to impossible results.( 58 ) BOTH these decisions were brought to the notice of the learned judge deciding the Clive Mills case [1964] 34 Comp. Cas. 731 and the Bengal Luxmi Cotton Mills case [1965] 35 comp. Cas. 187, and these decisions have been distinguished by him merely by saying that the decisions have no application where the allegations of fraud, misconduct or misappropriation have been made. The distinction drawn, appears to be that a petition not containing allegations allegation of fraud or other grave charges like misconduct or mismanagement, etc. , can be verified by affidavits on information and belief, but a petition containing allegations of fraud or grave charge like misconduct, mismanagement etc. , is required to be verified by an affidavit on personal knowledge or by supporting affidavits of other persons having personal knowledge. With respect we are unable to concur in this view, because it would involve reading the relevant rule 21 framed by the Supreme Court differently( 59 ) TURNING to the facts of the case, it is not in dispute that the affidavit verifying the petition as well as the affidavit supplying further particulars have been sworn in accordance with the provisions of rule 21 of the Supreme Court Rules and the Form prescribed therein, as well as the regulations and the Form prescribed therein. The source of information and the grounds of belief have been with sufficient particularity stated in the affidavit. The petitioner had thus fulfilled the requirements of law and the petition , therefore, for the reasons already stated, is not liable to be dismissed in limine. similarly, for reasons already stated the petition is not liable to be dismissed on merits also at this stage merely on the ground that the affidavit verifying the petition or the affidavit supplying particular have not been sworn on personal having personal knowledge of the fact alleged in the petition( 60 ) WE have already reproduced paragraph 11 of the affidavit furnishing further particular, and in that affidavit Mr. Dang has stated that at the hearing evidence will be led in proof of the facts alleged in the petition. We have pointed out above the various provisions in the amended Act and the Regulations which empower the Tribunal to enforce the attendance of witnesses, examine witnesses on oath, or make orders relating to reception of evidence taken on affidavits. It would be for the Tribunal, after the reply of the respondents has been filed to decide whether it should record the evidence of these witnesses or order receiving evidence taken on affidavits.Mr. Mody however contended that as the Union of India did not state on affidavit that it was not possible for them to file affidavits of other persons who were acquainted with the facts, the union of India should not now be allowed to lead oral evidence. According to Mr. Mody, the union of India was flouting the provisions of law and deliberately avoiding filling of affidavits of persons acquainted with facts even though it was possible for them to doWe are not impressed by this argument. Mr. Mody has not pointed out any express provisions of law or any decision except Bengal Luxmi Cotton Mills case [1965] 35 Comp. Cas. 187, which says that the failure on the part of the petitioners to file supporting affidavits of persons acquainted with facts disentitles him form leading evidence at the hearing of the petition. With the said decision, with respect we have been unable to concur. Further, there is no material on record form which it could be inferred that though it was possible for the Union of India to file affidavits of persons acquainted with the facts of the case, the Union of India is deliberately avoiding to file their affidavits.Mr. Khambatta on behalf of the petitioner had also argued that the appellant respondent No. 2 was not entitled to contend that the petition should be dismissed in limine inasmuch as respondent No. 2 himself has waived this defect in the affidavit in verification of the petition and has taken part in the proceedings of the petition since after its admission. It was urged that the petition was admitted on 12th October, 1964, and thereafter, respondent No. 2 appeared, filed affidavits for interim orders, and thus having taken part in the proceedings has submitted to the orders in applications for interim reliefs. Respondent No. 2 therefore is not entitled to raise the plea that the petition should be dismissed in limine because the affidavit verifying the petition was defective inasmuch as it was not based on personal knowledge.Mr. Mody on, the other hand, contended that the petitioner is not entitled to argue that respondent no. 2 had waived his right to claim that the petition should be dismissed in limine inasmuch as the plea of waiver had not been raised by the petitioner in any of the affidavits which have been allowed to be taken on record.It appears that the Tribunal has allowed the counsel for the petitioner to argue the point of waiver inasmuch as it was of the opinion that the plea of waiver was raised by the counsel on the basis of the records in the petition. In our opinion, Mr. Mody right in his contention that the plea , it should not be allowed to be raised in arguments. However, it is not necessary to go further in this mater inasmuch as the Tribunal has not decided this point, nor has the application been disposed of on his ground. On the other hand, the tribunal has dismissed respondent No. 2 s application on merits. For the reasons already stated, in our opinion, the Tribunal was right in dismissing respondent No. 2s aforesaid application NO. 37 of 1965. | 0 | 15,700 | 5,079 | ### Instruction:
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also the original proceedings which are initiated by a petition. Such as original petition is required to be verified under the Code in Order 6, rule 15. To construe it otherwise would lead to impossible results. ( 58 ) BOTH these decisions were brought to the notice of the learned judge deciding the Clive Mills case [1964] 34 Comp. Cas. 731 and the Bengal Luxmi Cotton Mills case [1965] 35 comp. Cas. 187, and these decisions have been distinguished by him merely by saying that the decisions have no application where the allegations of fraud, misconduct or misappropriation have been made. The distinction drawn, appears to be that a petition not containing allegations allegation of fraud or other grave charges like misconduct or mismanagement, etc. , can be verified by affidavits on information and belief, but a petition containing allegations of fraud or grave charge like misconduct, mismanagement etc. , is required to be verified by an affidavit on personal knowledge or by supporting affidavits of other persons having personal knowledge. With respect we are unable to concur in this view, because it would involve reading the relevant rule 21 framed by the Supreme Court differently. ( 59 ) TURNING to the facts of the case, it is not in dispute that the affidavit verifying the petition as well as the affidavit supplying further particulars have been sworn in accordance with the provisions of rule 21 of the Supreme Court Rules and the Form prescribed therein, as well as the regulations and the Form prescribed therein. The source of information and the grounds of belief have been with sufficient particularity stated in the affidavit. The petitioner had thus fulfilled the requirements of law and the petition , therefore, for the reasons already stated, is not liable to be dismissed in limine. similarly, for reasons already stated the petition is not liable to be dismissed on merits also at this stage merely on the ground that the affidavit verifying the petition or the affidavit supplying particular have not been sworn on personal having personal knowledge of the fact alleged in the petition. ( 60 ) WE have already reproduced paragraph 11 of the affidavit furnishing further particular, and in that affidavit Mr. Dang has stated that at the hearing evidence will be led in proof of the facts alleged in the petition. We have pointed out above the various provisions in the amended Act and the Regulations which empower the Tribunal to enforce the attendance of witnesses, examine witnesses on oath, or make orders relating to reception of evidence taken on affidavits. It would be for the Tribunal, after the reply of the respondents has been filed to decide whether it should record the evidence of these witnesses or order receiving evidence taken on affidavits. Mr. Mody however contended that as the Union of India did not state on affidavit that it was not possible for them to file affidavits of other persons who were acquainted with the facts, the union of India should not now be allowed to lead oral evidence. According to Mr. Mody, the union of India was flouting the provisions of law and deliberately avoiding filling of affidavits of persons acquainted with facts even though it was possible for them to do so. We are not impressed by this argument. Mr. Mody has not pointed out any express provisions of law or any decision except Bengal Luxmi Cotton Mills case [1965] 35 Comp. Cas. 187, which says that the failure on the part of the petitioners to file supporting affidavits of persons acquainted with facts disentitles him form leading evidence at the hearing of the petition. With the said decision, with respect we have been unable to concur. Further, there is no material on record form which it could be inferred that though it was possible for the Union of India to file affidavits of persons acquainted with the facts of the case, the Union of India is deliberately avoiding to file their affidavits. Mr. Khambatta on behalf of the petitioner had also argued that the appellant respondent No. 2 was not entitled to contend that the petition should be dismissed in limine inasmuch as respondent No. 2 himself has waived this defect in the affidavit in verification of the petition and has taken part in the proceedings of the petition since after its admission. It was urged that the petition was admitted on 12th October, 1964, and thereafter, respondent No. 2 appeared, filed affidavits for interim orders, and thus having taken part in the proceedings has submitted to the orders in applications for interim reliefs. Respondent No. 2 therefore is not entitled to raise the plea that the petition should be dismissed in limine because the affidavit verifying the petition was defective inasmuch as it was not based on personal knowledge. Mr. Mody on, the other hand, contended that the petitioner is not entitled to argue that respondent no. 2 had waived his right to claim that the petition should be dismissed in limine inasmuch as the plea of waiver had not been raised by the petitioner in any of the affidavits which have been allowed to be taken on record. It appears that the Tribunal has allowed the counsel for the petitioner to argue the point of waiver inasmuch as it was of the opinion that the plea of waiver was raised by the counsel on the basis of the records in the petition. In our opinion, Mr. Mody right in his contention that the plea , it should not be allowed to be raised in arguments. However, it is not necessary to go further in this mater inasmuch as the Tribunal has not decided this point, nor has the application been disposed of on his ground. On the other hand, the tribunal has dismissed respondent No. 2 s application on merits. For the reasons already stated, in our opinion, the Tribunal was right in dismissing respondent No. 2s aforesaid application NO. 37 of 1965.
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commonly understood as interlocutory application in a suit but also the original proceedings which are initiated by a petition. Such as original petition is required to be verified under the Code in Order 6, rule 15. To construe it otherwise would lead to impossible results.( 58 ) BOTH these decisions were brought to the notice of the learned judge deciding the Clive Mills case [1964] 34 Comp. Cas. 731 and the Bengal Luxmi Cotton Mills case [1965] 35 comp. Cas. 187, and these decisions have been distinguished by him merely by saying that the decisions have no application where the allegations of fraud, misconduct or misappropriation have been made. The distinction drawn, appears to be that a petition not containing allegations allegation of fraud or other grave charges like misconduct or mismanagement, etc. , can be verified by affidavits on information and belief, but a petition containing allegations of fraud or grave charge like misconduct, mismanagement etc. , is required to be verified by an affidavit on personal knowledge or by supporting affidavits of other persons having personal knowledge. With respect we are unable to concur in this view, because it would involve reading the relevant rule 21 framed by the Supreme Court differently( 59 ) TURNING to the facts of the case, it is not in dispute that the affidavit verifying the petition as well as the affidavit supplying further particulars have been sworn in accordance with the provisions of rule 21 of the Supreme Court Rules and the Form prescribed therein, as well as the regulations and the Form prescribed therein. The source of information and the grounds of belief have been with sufficient particularity stated in the affidavit. The petitioner had thus fulfilled the requirements of law and the petition , therefore, for the reasons already stated, is not liable to be dismissed in limine. similarly, for reasons already stated the petition is not liable to be dismissed on merits also at this stage merely on the ground that the affidavit verifying the petition or the affidavit supplying particular have not been sworn on personal having personal knowledge of the fact alleged in the petition( 60 ) WE have already reproduced paragraph 11 of the affidavit furnishing further particular, and in that affidavit Mr. Dang has stated that at the hearing evidence will be led in proof of the facts alleged in the petition. We have pointed out above the various provisions in the amended Act and the Regulations which empower the Tribunal to enforce the attendance of witnesses, examine witnesses on oath, or make orders relating to reception of evidence taken on affidavits. It would be for the Tribunal, after the reply of the respondents has been filed to decide whether it should record the evidence of these witnesses or order receiving evidence taken on affidavits.Mr. Mody however contended that as the Union of India did not state on affidavit that it was not possible for them to file affidavits of other persons who were acquainted with the facts, the union of India should not now be allowed to lead oral evidence. According to Mr. Mody, the union of India was flouting the provisions of law and deliberately avoiding filling of affidavits of persons acquainted with facts even though it was possible for them to doWe are not impressed by this argument. Mr. Mody has not pointed out any express provisions of law or any decision except Bengal Luxmi Cotton Mills case [1965] 35 Comp. Cas. 187, which says that the failure on the part of the petitioners to file supporting affidavits of persons acquainted with facts disentitles him form leading evidence at the hearing of the petition. With the said decision, with respect we have been unable to concur. Further, there is no material on record form which it could be inferred that though it was possible for the Union of India to file affidavits of persons acquainted with the facts of the case, the Union of India is deliberately avoiding to file their affidavits.Mr. Khambatta on behalf of the petitioner had also argued that the appellant respondent No. 2 was not entitled to contend that the petition should be dismissed in limine inasmuch as respondent No. 2 himself has waived this defect in the affidavit in verification of the petition and has taken part in the proceedings of the petition since after its admission. It was urged that the petition was admitted on 12th October, 1964, and thereafter, respondent No. 2 appeared, filed affidavits for interim orders, and thus having taken part in the proceedings has submitted to the orders in applications for interim reliefs. Respondent No. 2 therefore is not entitled to raise the plea that the petition should be dismissed in limine because the affidavit verifying the petition was defective inasmuch as it was not based on personal knowledge.Mr. Mody on, the other hand, contended that the petitioner is not entitled to argue that respondent no. 2 had waived his right to claim that the petition should be dismissed in limine inasmuch as the plea of waiver had not been raised by the petitioner in any of the affidavits which have been allowed to be taken on record.It appears that the Tribunal has allowed the counsel for the petitioner to argue the point of waiver inasmuch as it was of the opinion that the plea of waiver was raised by the counsel on the basis of the records in the petition. In our opinion, Mr. Mody right in his contention that the plea , it should not be allowed to be raised in arguments. However, it is not necessary to go further in this mater inasmuch as the Tribunal has not decided this point, nor has the application been disposed of on his ground. On the other hand, the tribunal has dismissed respondent No. 2 s application on merits. For the reasons already stated, in our opinion, the Tribunal was right in dismissing respondent No. 2s aforesaid application NO. 37 of 1965.
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East India Tobacco Co Vs. State Of Andhra Pradesh | treatment of the respective coals being within the power conceded by the cases to the State it as logical and legal justification and is necessarily, not unreasonable or arbitrary."8.In our judgment the differences which exist between the Virginia and Natu country tobacco, as found by the learned Judges, are materials on which the State could treat Virginia tobacco as forming a class by itself for purpose of taxation, and the impugned legislation must be held to be not obnoxious to Art. 14 of the Constitution.9. (2) It is next argued that the Amendment Act is ultra vires because in reality it imposes a tax on sales in the course of export and that is hit by Art, 286(1)(b). The course of business followed by the appellants has already been set out. It may be assumed for the purpose of the present discussion that the purchases made by the appellants on which the tax is sought to be imposed were made for the purpose of executing specific orders which they had received from their foreign customers. The question is whether even so the sales in question took place in the course of export for the purpose of Art. 286(1)(b). In support of their contention that they did, the appellants rely on the following observations in State of Travancore-Cochin v. Bombay Co. Ltd., Alleppey, 1952 SCR 1112 at p. 1118; (AIR 1952 SC 366 at pp. 367-368):A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction. Of these two integrated activities, which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other."10. Now the contention is that the agreement entered into with the foreign purchasers for sale of the Virginia tobacco, the purchase of the same locally by the appellants for performing the contract and their subsequent export to the foreign purchasers must all be held to form one integrated transaction of sale in the course of export.11. Now the observations quoted above were made in refutation of the contention that the expression "sale in the course of export or import" meant only a sale which takes place while the goods are actually in movement, in the course of export or import, as for example, when shipping documents are endorse and delivered when the goods are in transit. This Court held that this was too narrow an interpretation to put on the words in question and that a sale which actually occasions the export or import would fall within Art. 286(1)(b). The question whether sales which precede export are sales in the course of export within Art. 286(1)(b) arose directly for decision in State of Travancore-Cochin v. Shanmuga vilas Cashew Nut Factory, 1954 SCR 53 : (AIR 1953 SC 333 ) and it was held that they were not. Explaining, in the course of the judgment, the true scope of the observations in State of Travancore-Cochins case, 1952 SCR 1112: (AIR 1952 SC 366 ) quoted above, Patanjali Sastri, C. J. observed:-"The phrase integrated activities was used in the previous decision to denote that such a sale (i.e., a sale which occasions the export cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction. It is in that sense that the two activities - the sale and the export - were said to be integrated. A purchase for the purpose of export like production or manufacture for export, is only an act preparatory to export and cannot, in our opinion, be regarded as an act done in the course of the export of the goods out of the territory of India, and more than the other two activities can be so regarded."12. We may refer to two other decisions of this Court where this question has been considered. In State of Madras v. Gurviah Naidu and Co. Ltd., (S) AIR 1956 SC 158 , the facts were that an assessee secured orders for the supply of untanned hides and skins from London purchasers and then, he purchased them locally in order to implement those orders and exported them, and the question was whether a tax on those purchases was hit by Art. 286 (l)(b). In holding that it was not, this Court observed:-"Such purchases were, it is true, for the purpose of export but such purchases did not themselves occasion the export and consequently did not fall within the exemption of Art. 286(1)(b) of the Constitution as held by this Court in (1952) SCR ll12: (AIR 1952 SC 366 ). Nor did such purchases in the State by the exporter for the purpose of export come within the ambit of Art. 286(1) (b), as held by the decision of the majority in (1954) SCR 53 : (AIR 1953 SC 333 ) "13. The point came up again for consideration before this Court in State of Mysore v. Mysore Spinning and Manufacturing Co., AIR 1958 SC l002 at p. l005 and it was held following the decision cited above that Art. 286(1)(b) could be invoked only in respect of the sale which occasions the export, and not of any sales precedent to it.14. On these authorities the law must be taken to be well settled that it is only the sale under which the export is made that is protected by Art- 286 (1) (b), and that a purchase which precedes such a sale does not fall within its purview though it is made for the purpose of, or with a view to export. The impugned legislation must accordingly be held not to contravene Art. 286 (1)(b). | 0[ds]8.In our judgment the differences which exist between the Virginia and Natu country tobacco, as found by the learned Judges, are materials on which the State could treat Virginia tobacco as forming a class by itself for purpose of taxation, and the impugned legislation must be held to be not obnoxious to Art. 14 of theit will be seen that Virginia tobacco has features which distinguish it from country tobacco, and can be treated as a class in itself. It will therefore be within the power of the State to impose a tax on the sales of Virginia tobacco while exempting the countryare unable to agree with this contention. If a state can validly pick and choose one commodity for taxation and that is not open to attack under Art. 14, the same result must follow when the State picks out one category of goods and subjects it to taxation.Now the observations quoted above were made in refutation of the contention that the expression "sale in the course of export or import" meant only a sale which takes place while the goods are actually in movement, in the course of export or import, as for example, when shipping documents are endorse and delivered when the goods are in transit.On these authorities the law must be taken to be well settled that it is only the sale under which the export is made that is protected by Art- 286 (1) (b), and that a purchase which precedes such a sale does not fall within its purview though it is made for the purpose of, or with a view to export. The impugned legislation must accordingly be held not to contravene Art. 286 (1)(b). | 0 | 3,338 | 314 | ### Instruction:
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treatment of the respective coals being within the power conceded by the cases to the State it as logical and legal justification and is necessarily, not unreasonable or arbitrary."8.In our judgment the differences which exist between the Virginia and Natu country tobacco, as found by the learned Judges, are materials on which the State could treat Virginia tobacco as forming a class by itself for purpose of taxation, and the impugned legislation must be held to be not obnoxious to Art. 14 of the Constitution.9. (2) It is next argued that the Amendment Act is ultra vires because in reality it imposes a tax on sales in the course of export and that is hit by Art, 286(1)(b). The course of business followed by the appellants has already been set out. It may be assumed for the purpose of the present discussion that the purchases made by the appellants on which the tax is sought to be imposed were made for the purpose of executing specific orders which they had received from their foreign customers. The question is whether even so the sales in question took place in the course of export for the purpose of Art. 286(1)(b). In support of their contention that they did, the appellants rely on the following observations in State of Travancore-Cochin v. Bombay Co. Ltd., Alleppey, 1952 SCR 1112 at p. 1118; (AIR 1952 SC 366 at pp. 367-368):A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction. Of these two integrated activities, which together constitute an export sale, whichever first occurs can well be regarded as taking place in the course of the other."10. Now the contention is that the agreement entered into with the foreign purchasers for sale of the Virginia tobacco, the purchase of the same locally by the appellants for performing the contract and their subsequent export to the foreign purchasers must all be held to form one integrated transaction of sale in the course of export.11. Now the observations quoted above were made in refutation of the contention that the expression "sale in the course of export or import" meant only a sale which takes place while the goods are actually in movement, in the course of export or import, as for example, when shipping documents are endorse and delivered when the goods are in transit. This Court held that this was too narrow an interpretation to put on the words in question and that a sale which actually occasions the export or import would fall within Art. 286(1)(b). The question whether sales which precede export are sales in the course of export within Art. 286(1)(b) arose directly for decision in State of Travancore-Cochin v. Shanmuga vilas Cashew Nut Factory, 1954 SCR 53 : (AIR 1953 SC 333 ) and it was held that they were not. Explaining, in the course of the judgment, the true scope of the observations in State of Travancore-Cochins case, 1952 SCR 1112: (AIR 1952 SC 366 ) quoted above, Patanjali Sastri, C. J. observed:-"The phrase integrated activities was used in the previous decision to denote that such a sale (i.e., a sale which occasions the export cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction. It is in that sense that the two activities - the sale and the export - were said to be integrated. A purchase for the purpose of export like production or manufacture for export, is only an act preparatory to export and cannot, in our opinion, be regarded as an act done in the course of the export of the goods out of the territory of India, and more than the other two activities can be so regarded."12. We may refer to two other decisions of this Court where this question has been considered. In State of Madras v. Gurviah Naidu and Co. Ltd., (S) AIR 1956 SC 158 , the facts were that an assessee secured orders for the supply of untanned hides and skins from London purchasers and then, he purchased them locally in order to implement those orders and exported them, and the question was whether a tax on those purchases was hit by Art. 286 (l)(b). In holding that it was not, this Court observed:-"Such purchases were, it is true, for the purpose of export but such purchases did not themselves occasion the export and consequently did not fall within the exemption of Art. 286(1)(b) of the Constitution as held by this Court in (1952) SCR ll12: (AIR 1952 SC 366 ). Nor did such purchases in the State by the exporter for the purpose of export come within the ambit of Art. 286(1) (b), as held by the decision of the majority in (1954) SCR 53 : (AIR 1953 SC 333 ) "13. The point came up again for consideration before this Court in State of Mysore v. Mysore Spinning and Manufacturing Co., AIR 1958 SC l002 at p. l005 and it was held following the decision cited above that Art. 286(1)(b) could be invoked only in respect of the sale which occasions the export, and not of any sales precedent to it.14. On these authorities the law must be taken to be well settled that it is only the sale under which the export is made that is protected by Art- 286 (1) (b), and that a purchase which precedes such a sale does not fall within its purview though it is made for the purpose of, or with a view to export. The impugned legislation must accordingly be held not to contravene Art. 286 (1)(b).
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8.In our judgment the differences which exist between the Virginia and Natu country tobacco, as found by the learned Judges, are materials on which the State could treat Virginia tobacco as forming a class by itself for purpose of taxation, and the impugned legislation must be held to be not obnoxious to Art. 14 of theit will be seen that Virginia tobacco has features which distinguish it from country tobacco, and can be treated as a class in itself. It will therefore be within the power of the State to impose a tax on the sales of Virginia tobacco while exempting the countryare unable to agree with this contention. If a state can validly pick and choose one commodity for taxation and that is not open to attack under Art. 14, the same result must follow when the State picks out one category of goods and subjects it to taxation.Now the observations quoted above were made in refutation of the contention that the expression "sale in the course of export or import" meant only a sale which takes place while the goods are actually in movement, in the course of export or import, as for example, when shipping documents are endorse and delivered when the goods are in transit.On these authorities the law must be taken to be well settled that it is only the sale under which the export is made that is protected by Art- 286 (1) (b), and that a purchase which precedes such a sale does not fall within its purview though it is made for the purpose of, or with a view to export. The impugned legislation must accordingly be held not to contravene Art. 286 (1)(b).
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H. P. Mineral and Industrial Development Corporation Employees and apos; Union Vs. State of Himachal Pradesh and Others | clause (oo) of Section 2 is also subject to the context and the subject-matter. Section 25-F prescribed the conditions precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one months notice indicating the reasons for retrenchment and payment of wages for the period of notice. Section 25-FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workman who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25-F as if the workman had been retrenched. Section 25-FFA provides that sixty days notice must be given of intention to close down any undertaking and Section 25-FFF provides for compensation to workmen in case of closing down of undertakings. Very briefly stated Section 25-FFF which has been already discussed lays down that where an undertaking is closed for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of Section 25-F, as if the workman had been retrenched. 6. From the aforementioned observations it is evident that the definition of retrenchment as defined in Section 2(oo) of the Act has to be read in the context of Sections 25-FF and 25-FFF of the Act and if thus read retrenchment under Section 2(oo) does not cover termination of service as a result of closure or transfer of an undertaking though such termination has been assimilated to retrenchment for certain purposes, namely, the compensation payable to the workmen whose services are terminated as a result of such closure. In that view of the matter Section 25-N which deals with retrenchment cannot apply to the present case where termination of the services of the workmen was brought about as a result of the closure of the undertaking. 7. There is one more reason why Section 25-N cannot be made applicable to the workmen in the present case. Sections 25-N and 25-O were inserted in the Act by Act No. 32 of 1976 whereby Chapter V-B was introduced in the Act. Section 25-N imposed restrictions in the matter of retrenchment of workmen employed in large undertakings while Section 25-O dealt with the procedure for closing down such undertakings. Section 25-O was held to be unconstitutional by this Court in Excel Wear case. The striking down of Section 25-O would not, ipso facto, result in enlargement of the ambit of Section 25-N so as to cover termination of services of workmen as a result of closure which was otherwise outside the ambit of Section 25-N. We are, therefore, unable to uphold the contention of Shri Sharma that Section 25-N was applicable in the present case and it was obligatory for the Management of the responded-Company to give three months notice as required by Section 25-N. Since Section 25-O was not available on account of the said provision having been struck down by this Court the only protection that was available to the workmen whose services were terminated as a result of closure was that contained in Sections 25-FFA and 25-FFF of the Act. It is not disputed that both these provisions have been complied with in the present case. 8. Another contention that has been urged by Shri Sharma was that before the closure of the undertaking the workmen were asked to give their option either for absorption by the State Government in some government departments/public sector undertakings or for having retrenchment benefits by the respondent-Company by order dated 19-7-1983 and that in response to the said order the workmen had given their option for absorption in government service or in the service of any other corporation. The submission is that in view of the fact that the workmen were required to exercise their option in this regard and the workmen having exercised their option for absorption it was obligatory on the part of the State Government to have absorbed the workmen in government service or in the service of some other public sector corporation. In this connection, it may be mentioned that the appellant-Union had earlier filed a writ petition (CWP No. 518 of 1984) in the High Court wherein question of absorption was raised but the said writ petition was dismissed in view of the dispute having been referred to the Tribunal for adjudication. The said order of the High Court in the writ petition has become final insofar as the absorption of the workmen is concerned. Moreover, no direction can be given to the State Government to absorb the workmen in government service or in other public sector corporation because in the order dated 19-7-1983 no specific assurance was given regarding absorption to the workmen. In the said order it was stated : The option will not be taken as granted and the final decision vests with the Management/State Government. The order passed by this Court in G. Govinda Rajulu v. A.P. State Construction Corpn. on which reliance has been placed by Shri Sharma, cannot, therefore, assist the appellant-Union in the present case. 9. Shri Sharma has also invite our attention to the order passed by this Court on 26-7-1991 in (Himachal Worsted Mills Staff Assn. v. State of H.P. [CA No. 2957 of 1991]) wherein it was directed that compensation at the rate of Rs 40, 000 per person in full and final settlement of the claim for compensation should paid to the workmen whose services were terminated on account of closure of the Himachal Worsted Mills Ltd. The said order made in the facts and circumstances of that case cannot be applied to the present case because here we find that the workmen have been paid compensation and the benefits in accordance with the provisions of the Act. | 0[ds]The submission of Shri Sharma is that since termination of services of the workmen constitutes retrenchment under Section 2(oo) of the Act the provisions of SectionN were applicable to the present case and the workmen could be retrenched only by giving three months notice which was not given in this case5. We are unable to accept this contention. It is no doubt true that in Section 2(oo) the expression retrenchment is defined to mean the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and categories referred to in clauses (a) to (c) have been expressly excluded from the ambit of the said definition. But as far back as in 1957 a Constitution Bench of this Court in Hariprasad Shivshankar Shukla v. A.D. Divikar had laid down that retrenchment under Section 2(oo) of the Act would not cover termination of services of all workmen as a result of the closure of the business6. From the aforementioned observations it is evident that the definition of retrenchment as defined in Section 2(oo) of the Act has to be read in the context of SectionsF of the Act and if thus read retrenchment under Section 2(oo) does not cover termination of service as a result of closure or transfer of an undertaking though such termination has been assimilated to retrenchment for certain purposes, namely, the compensation payable to the workmen whose services are terminated as a result of such closure. In that view of the matter SectionN which deals with retrenchment cannot apply to the present case where termination of the services of the workmen was brought about as a result of the closure of the undertakingThe striking down of SectionO would not, ipso facto, result in enlargement of the ambit of SectionN so as to cover termination of services of workmen as a result of closure which was otherwise outside the ambit of Section. We are, therefore, unable to uphold the contention of Shri Sharma that SectionN was applicable in the present case and it was obligatory for the Management of they to give three months notice as required by SectionO was not available on account of the said provision having been struck down by this Court the only protection that was available to the workmen whose services were terminated as a result of closure was that contained in SectionsF of the Act. It is not disputed that both these provisions have been complied with in the present caseThe submission is that in view of the fact that the workmen were required to exercise their option in this regard and the workmen having exercised their option for absorption it was obligatory on the part of the State Government to have absorbed the workmen in government service or in the service of some other public sector corporation. In this connection, it may be mentioned that then had earlier filed a writ petition (CWP No. 518 of 1984) in the High Court wherein question of absorption was raised but the said writ petition was dismissed in view of the dispute having been referred to the Tribunal for adjudication. The said order of the High Court in the writ petition has become final insofar as the absorption of the workmen is concerned. Moreover, no direction can be given to the State Government to absorb the workmen in government service or in other public sector corporation because in the order dated3 no specific assurance was given regarding absorption to the workmen9. Shri Sharma has also invite our attention to the order passed by this Court on1 in (Himachal Worsted Mills Staff Assn. v. State of H.P. [CA No. 2957 of 1991]) wherein it was directed that compensation at the rate of Rs 40, 000 per person in full and final settlement of the claim for compensation should paid to the workmen whose services were terminated on account of closure of the Himachal Worsted Mills Ltd. The said order made in the facts and circumstances of that case cannot be applied to the present case because here we find that the workmen have been paid compensation and the benefits in accordance with the provisions of the Act. | 0 | 2,359 | 763 | ### 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:
clause (oo) of Section 2 is also subject to the context and the subject-matter. Section 25-F prescribed the conditions precedent to a valid retrenchment of workers as discussed earlier. Very briefly, the conditions prescribed are the giving of one months notice indicating the reasons for retrenchment and payment of wages for the period of notice. Section 25-FF provides for compensation to workmen in case of transfer of undertakings. Very briefly, it provides that every workman who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25-F as if the workman had been retrenched. Section 25-FFA provides that sixty days notice must be given of intention to close down any undertaking and Section 25-FFF provides for compensation to workmen in case of closing down of undertakings. Very briefly stated Section 25-FFF which has been already discussed lays down that where an undertaking is closed for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of Section 25-F, as if the workman had been retrenched. 6. From the aforementioned observations it is evident that the definition of retrenchment as defined in Section 2(oo) of the Act has to be read in the context of Sections 25-FF and 25-FFF of the Act and if thus read retrenchment under Section 2(oo) does not cover termination of service as a result of closure or transfer of an undertaking though such termination has been assimilated to retrenchment for certain purposes, namely, the compensation payable to the workmen whose services are terminated as a result of such closure. In that view of the matter Section 25-N which deals with retrenchment cannot apply to the present case where termination of the services of the workmen was brought about as a result of the closure of the undertaking. 7. There is one more reason why Section 25-N cannot be made applicable to the workmen in the present case. Sections 25-N and 25-O were inserted in the Act by Act No. 32 of 1976 whereby Chapter V-B was introduced in the Act. Section 25-N imposed restrictions in the matter of retrenchment of workmen employed in large undertakings while Section 25-O dealt with the procedure for closing down such undertakings. Section 25-O was held to be unconstitutional by this Court in Excel Wear case. The striking down of Section 25-O would not, ipso facto, result in enlargement of the ambit of Section 25-N so as to cover termination of services of workmen as a result of closure which was otherwise outside the ambit of Section 25-N. We are, therefore, unable to uphold the contention of Shri Sharma that Section 25-N was applicable in the present case and it was obligatory for the Management of the responded-Company to give three months notice as required by Section 25-N. Since Section 25-O was not available on account of the said provision having been struck down by this Court the only protection that was available to the workmen whose services were terminated as a result of closure was that contained in Sections 25-FFA and 25-FFF of the Act. It is not disputed that both these provisions have been complied with in the present case. 8. Another contention that has been urged by Shri Sharma was that before the closure of the undertaking the workmen were asked to give their option either for absorption by the State Government in some government departments/public sector undertakings or for having retrenchment benefits by the respondent-Company by order dated 19-7-1983 and that in response to the said order the workmen had given their option for absorption in government service or in the service of any other corporation. The submission is that in view of the fact that the workmen were required to exercise their option in this regard and the workmen having exercised their option for absorption it was obligatory on the part of the State Government to have absorbed the workmen in government service or in the service of some other public sector corporation. In this connection, it may be mentioned that the appellant-Union had earlier filed a writ petition (CWP No. 518 of 1984) in the High Court wherein question of absorption was raised but the said writ petition was dismissed in view of the dispute having been referred to the Tribunal for adjudication. The said order of the High Court in the writ petition has become final insofar as the absorption of the workmen is concerned. Moreover, no direction can be given to the State Government to absorb the workmen in government service or in other public sector corporation because in the order dated 19-7-1983 no specific assurance was given regarding absorption to the workmen. In the said order it was stated : The option will not be taken as granted and the final decision vests with the Management/State Government. The order passed by this Court in G. Govinda Rajulu v. A.P. State Construction Corpn. on which reliance has been placed by Shri Sharma, cannot, therefore, assist the appellant-Union in the present case. 9. Shri Sharma has also invite our attention to the order passed by this Court on 26-7-1991 in (Himachal Worsted Mills Staff Assn. v. State of H.P. [CA No. 2957 of 1991]) wherein it was directed that compensation at the rate of Rs 40, 000 per person in full and final settlement of the claim for compensation should paid to the workmen whose services were terminated on account of closure of the Himachal Worsted Mills Ltd. The said order made in the facts and circumstances of that case cannot be applied to the present case because here we find that the workmen have been paid compensation and the benefits in accordance with the provisions of the Act.
### Response:
0
### Explanation:
The submission of Shri Sharma is that since termination of services of the workmen constitutes retrenchment under Section 2(oo) of the Act the provisions of SectionN were applicable to the present case and the workmen could be retrenched only by giving three months notice which was not given in this case5. We are unable to accept this contention. It is no doubt true that in Section 2(oo) the expression retrenchment is defined to mean the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and categories referred to in clauses (a) to (c) have been expressly excluded from the ambit of the said definition. But as far back as in 1957 a Constitution Bench of this Court in Hariprasad Shivshankar Shukla v. A.D. Divikar had laid down that retrenchment under Section 2(oo) of the Act would not cover termination of services of all workmen as a result of the closure of the business6. From the aforementioned observations it is evident that the definition of retrenchment as defined in Section 2(oo) of the Act has to be read in the context of SectionsF of the Act and if thus read retrenchment under Section 2(oo) does not cover termination of service as a result of closure or transfer of an undertaking though such termination has been assimilated to retrenchment for certain purposes, namely, the compensation payable to the workmen whose services are terminated as a result of such closure. In that view of the matter SectionN which deals with retrenchment cannot apply to the present case where termination of the services of the workmen was brought about as a result of the closure of the undertakingThe striking down of SectionO would not, ipso facto, result in enlargement of the ambit of SectionN so as to cover termination of services of workmen as a result of closure which was otherwise outside the ambit of Section. We are, therefore, unable to uphold the contention of Shri Sharma that SectionN was applicable in the present case and it was obligatory for the Management of they to give three months notice as required by SectionO was not available on account of the said provision having been struck down by this Court the only protection that was available to the workmen whose services were terminated as a result of closure was that contained in SectionsF of the Act. It is not disputed that both these provisions have been complied with in the present caseThe submission is that in view of the fact that the workmen were required to exercise their option in this regard and the workmen having exercised their option for absorption it was obligatory on the part of the State Government to have absorbed the workmen in government service or in the service of some other public sector corporation. In this connection, it may be mentioned that then had earlier filed a writ petition (CWP No. 518 of 1984) in the High Court wherein question of absorption was raised but the said writ petition was dismissed in view of the dispute having been referred to the Tribunal for adjudication. The said order of the High Court in the writ petition has become final insofar as the absorption of the workmen is concerned. Moreover, no direction can be given to the State Government to absorb the workmen in government service or in other public sector corporation because in the order dated3 no specific assurance was given regarding absorption to the workmen9. Shri Sharma has also invite our attention to the order passed by this Court on1 in (Himachal Worsted Mills Staff Assn. v. State of H.P. [CA No. 2957 of 1991]) wherein it was directed that compensation at the rate of Rs 40, 000 per person in full and final settlement of the claim for compensation should paid to the workmen whose services were terminated on account of closure of the Himachal Worsted Mills Ltd. The said order made in the facts and circumstances of that case cannot be applied to the present case because here we find that the workmen have been paid compensation and the benefits in accordance with the provisions of the Act.
|
Competent Authority Vs. Barangore Jute Factory | land in the favour of the Central Government. 12. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under Section 3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under Section 3G has been deposited under Sub-section (1) of Section 3H. In the present case in view of an order dated 3rd April, 2002 passed by the High Court final compensation could not be determined by the Competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under Section 3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of Court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one day?s notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned Counsel for the Acquiring Authority submits that possession was taken on basis of oral observations of the Court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March, 2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI. 13. At this stage we would like to note that the learned Counsel appearing for the writ petitioners made reference to a publication in the nature of a brochure issued by the West Bengal Government wherein it is mentioned that motels/shops/petrol pumps etc. will also come up in the area where the acquired land is situated. On this basis it was sought to be argued that such use of the acquired land would be contrary to the use mentioned in Section 3A of the Act and, therefore, is not permissible. There was lot of controversy on this aspect between the parties particularly, on the ground that this plea was being taken at this belated stage when the respondents had no opportunity to give a proper reply thereto. We have mentioned this only for the reason that the issue has come up during the course of hearing. We do not consider it necessary to go into this aspect, in view of the fact that we have held in this judgment that the basic acquisition notification itself is not in accordance with law. 14. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the Acquiring Authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action. 15. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the land owners are adequately compensated. Reference may be made to: (a) Ujjain Vikas Pradhikaran v. Rajkumar Johri and Others, 1992 (1)SCC 328. (b) Gauri Shankar Gaur & Ors. v. State of UP & Ors., 1994 (1) SCC 92. (c) Haji Saeed Khan & Ors. v. State of UP & Ors., 2001 (9) SCC 513. In that direction the next step is what should be the crucial date in the facts of the present case for determining the quantum of compensation. We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the respondents from the writ petitioners. This date admittedly is 19th February, 2003. | 0[ds]So far as the question whether the impugned Notification meets the requirement of Section 3A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of land in respect of each Mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the lawSo far as the question whether the impugned Notification meets the requirement of Section 3A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of land in respect of each Mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the lawThe Act confers no general right to object, therefore, failure to object becomes irrelevant. The learned Counsel relied on the judgment of this Court in Delhi Administration v. Gurdip Singh Uban & Others, VII (1999) SLT 308=81 (1999) DLT 514 (SC)=(1999) 7 SCC 44. In our view, this judgment has no application in the facts of the present case where right to object is a very limited right. The case cited is a case under the Land Acquisition Act, 1894 which confers a general right to object to acquisition of land under Section 5A. Failure to exercise that right could be said to be acquiescence. The National Highways Act confers no such right. Under this Act there is no right to object to acquisition of land except on the question of its user. Therefore, the present objection has to be decided independently of the right to file objections. De hors the right to file objection, the validity of the Notification has to be considered. Failure to file objection to the notification under Section 3C, therefore, cannot non-suit the writ petitioners in this caseThe Notification in this case fails to meet this requirement. We have held it to be bad in law. It has no legs to stand. The conduct of the opposite party cannot be used to make it stand. Moreover, the writ petitioners have explained the reasons for the delay in filing the writ petition. The Company which owns the lands had been de-registered. It is a company registered in the U.K. It had to be revived. Revival came in mid-2001 whereafter the action was taken. Thus we find no merit in the argument about delay in challenging the Notification rendering the challenge liable to be rejected12. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under Section 3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under Section 3G has been deposited under Sub-section (1) of Section 3H. In the present case in view of an order dated 3rd April, 2002 passed by the High Court final compensation could not be determined by the Competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under Section 3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of Court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one day?s notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned Counsel for the Acquiring Authority submits that possession was taken on basis of oral observations of the Court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March, 2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI13. At this stage we would like to note that the learned Counsel appearing for the writ petitioners made reference to a publication in the nature of a brochure issued by the West Bengal Government wherein it is mentioned that motels/shops/petrol pumps etc. will also come up in the area where the acquired land is situated. On this basis it was sought to be argued that such use of the acquired land would be contrary to the use mentioned in Section 3A of the Act and, therefore, is not permissible. There was lot of controversy on this aspect between the parties particularly, on the ground that this plea was being taken at this belated stage when the respondents had no opportunity to give a proper reply thereto. We have mentioned this only for the reason that the issue has come up during the course of hearing. We do not consider it necessary to go into this aspect, in view of the fact that we have held in this judgment that the basic acquisition notification itself is not in accordance with law14. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the Acquiring Authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of actionWe express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free to exercise the same, if available. | 0 | 5,126 | 1,744 | ### 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:
land in the favour of the Central Government. 12. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under Section 3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under Section 3G has been deposited under Sub-section (1) of Section 3H. In the present case in view of an order dated 3rd April, 2002 passed by the High Court final compensation could not be determined by the Competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under Section 3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of Court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one day?s notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned Counsel for the Acquiring Authority submits that possession was taken on basis of oral observations of the Court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March, 2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI. 13. At this stage we would like to note that the learned Counsel appearing for the writ petitioners made reference to a publication in the nature of a brochure issued by the West Bengal Government wherein it is mentioned that motels/shops/petrol pumps etc. will also come up in the area where the acquired land is situated. On this basis it was sought to be argued that such use of the acquired land would be contrary to the use mentioned in Section 3A of the Act and, therefore, is not permissible. There was lot of controversy on this aspect between the parties particularly, on the ground that this plea was being taken at this belated stage when the respondents had no opportunity to give a proper reply thereto. We have mentioned this only for the reason that the issue has come up during the course of hearing. We do not consider it necessary to go into this aspect, in view of the fact that we have held in this judgment that the basic acquisition notification itself is not in accordance with law. 14. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the Acquiring Authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action. 15. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the land owners are adequately compensated. Reference may be made to: (a) Ujjain Vikas Pradhikaran v. Rajkumar Johri and Others, 1992 (1)SCC 328. (b) Gauri Shankar Gaur & Ors. v. State of UP & Ors., 1994 (1) SCC 92. (c) Haji Saeed Khan & Ors. v. State of UP & Ors., 2001 (9) SCC 513. In that direction the next step is what should be the crucial date in the facts of the present case for determining the quantum of compensation. We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the respondents from the writ petitioners. This date admittedly is 19th February, 2003.
### Response:
0
### Explanation:
the present objection has to be decided independently of the right to file objections. De hors the right to file objection, the validity of the Notification has to be considered. Failure to file objection to the notification under Section 3C, therefore, cannot non-suit the writ petitioners in this caseThe Notification in this case fails to meet this requirement. We have held it to be bad in law. It has no legs to stand. The conduct of the opposite party cannot be used to make it stand. Moreover, the writ petitioners have explained the reasons for the delay in filing the writ petition. The Company which owns the lands had been de-registered. It is a company registered in the U.K. It had to be revived. Revival came in mid-2001 whereafter the action was taken. Thus we find no merit in the argument about delay in challenging the Notification rendering the challenge liable to be rejected12. The aspect of possession of land having been taken by the Competent Authority, is an important issue for consideration in this case. Vesting of land in the Central Government has been held to be not in accordance with the law. The other statutory requirement which needs to be complied before taking possession is deposit of compensation. Under Section 3E(1) possession can be taken only after the land vests in the Central Government and the amount determined by the Competent Authority as compensation under Section 3G has been deposited under Sub-section (1) of Section 3H. In the present case in view of an order dated 3rd April, 2002 passed by the High Court final compensation could not be determined by the Competent Authority. Therefore, there could not be a valid deposit of amount finally determined as required under Section 3E(1) of the Act, which means the possession could not have been taken. But the fact is that possession was taken on 19th February, 2003 on deposit of provisional amount of compensation. The NHAI had in fact applied for permission of Court to take possession of the land under acquisition. But without any order being passed on that application, it hastened to take possession after giving only one day?s notice when the Act requires 60 days notice. Moreover, the possession is to be taken through the Commissioner of Police or the Collector. This was not done. Neither of the three statutory requirements for taking possession were fulfilled. Thus taking of possession of the lands in the present case is in total violation of the statutory provisions. The learned Counsel for the Acquiring Authority submits that possession was taken on basis of oral observations of the Court. This is a totally misconceived plea. Court orders are always in black and white. Oral orders are never passed. Moreover, this plea is wrong because the Division Bench observed in its order dated 27th March, 2003 that it never dealt with question of possession. The result is that taking possession of the land sought to be acquired cannot be said to be in accordance with law in this case and does not improve matters for the NHAI13. At this stage we would like to note that the learned Counsel appearing for the writ petitioners made reference to a publication in the nature of a brochure issued by the West Bengal Government wherein it is mentioned that motels/shops/petrol pumps etc. will also come up in the area where the acquired land is situated. On this basis it was sought to be argued that such use of the acquired land would be contrary to the use mentioned in Section 3A of the Act and, therefore, is not permissible. There was lot of controversy on this aspect between the parties particularly, on the ground that this plea was being taken at this belated stage when the respondents had no opportunity to give a proper reply thereto. We have mentioned this only for the reason that the issue has come up during the course of hearing. We do not consider it necessary to go into this aspect, in view of the fact that we have held in this judgment that the basic acquisition notification itself is not in accordance with law14. Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance, i.e. the construction of a national highway. The construction of national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the Acquiring Authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the land owners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the land owners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the land owners, that is, writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of actionWe express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free to exercise the same, if available.
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Patiraji Vs. Mamta & Others | year only and therefore she was not entitled to the Adhivasi rights. Special Appeal No. 344 of 1956 against that judgment was dismissed by a Division Bench in limine on October 31, 1956. This is an appeal by special leave against that decision.4. The sole foundation of the appellants claim is an entry which appears in the Khasra of 1356F, which is to the following effects-"Ram Adhar Pandey Bakasht Waris Baqa biz Smt. Patraji Motwaffi Bewa Ram Adhar Pandey Tarikh 24-2-49 Se", that is to say "Ram Adhar Pandey in cultivation heir in possession Smt. Patraji widow of deceased Ram Adhar Pandey from 24-2-49".The importance of this entry consists in the special benefit which such entries confer under Section 20 (b) (i) of the Act:20. Every person who..........(b) was recorded as occupant(i) of any land..... in the Khasra or Khatauni of 1356F....... shall........ be called Adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof."None of the four explanations to Section 20 is relevant for the present purpose.5. Looking at the provision contained in Section 20 (b) (i), it seems to us plain that the Adhivasi rights can be claimed by those persons only who are recorded as occupants for the whole of the Fasli year 1356. It is important to remember that the rights conferred by Section 20 (b) (i) are available even and mostly to trespassers. Clearly therefore, there is, in the first instance, no justification for construing the provision with greater liberality than the language warrants. Special rights conferred by the Act ought to be subject to the special limitations imposed by the Act.6. Apart from this aspect, any other view of Section 20 (b) (i) would make it unworkable in practice and would set the pace for lawlessness amongst trespassers. If different persons are in occupation of a land during different parts of the year, whom shall the court recognise as an Adhivasi and by what test shall the court pick and choose? Under the Uttar Pradesh Land Records Manual, the Lekhpal has to make three field-to-field inspections of every village in his halka, beginning respectively on August 15th, January 15th and April 15th of every year. (Rule A-55). On the basis of these inspections, the Lekhpal has to make entries in the Khasra, that is to say in the field-book, in form No. P-A-3 (Rule A-60). If a person other than a tenure-holder as classified in Part I or Part II of the Khatauni, is found to be in actual occupation, his name is to be recorded in the Remarks column (column No. 24) as "baqabza so and so" (Rule A-71, para 3). It may so happen, and decided cases show that it does so happen, that different persons are found to be in possession of a land at the time of the tri-annual inspections. The Lekhpal has to enter their names as occupants, may be in the remarks column, but the picture emerging at the close of the year will reveal that different persons were in occupation of the land-some one during the Kharif season, some one during the Rabi season and some one probably taking charge, on the sly, of a bona vacantia. When the true owner is away, the trespassers will play and the law which governs them is might is right. It cannot be the policy of the Act that everyone of these fleeting trespassers must find recognition and be made eligible for the acquisition of Adhivasi rights. None of them, in our opinion, can qualify for those valuable rights. It was urged that the last entry-holder should be recognised as an occupant to the exclusion of others but there is neither logic nor good sense in such a course. The last holder may have been in possession for a fractional part of the year and such possession may adventitiously coincide with the April visit of the Lekhpal. Besides, such a construction, as said already, will only encourage greater lawlessness amongst trespassers. Every tone, of them will make a frantic attempt to be last in the queue.7.Rightly therefore, the High Court of Allahabad and the Board of Revenue, U. P. have been uniformly taking the view that the right conferred by Section 20 (b) (i) can be availed of by those persons only who are recorded as occupants for the entire Fasli year 1356 and not by those who are recorded as occupants for a part of the year.(See Shyam Sunder Lal v. Mangali, 1963 All LJ 286; Ram Chander v. Chhotu, 1957 All LJ 24 (Rev.) Girdhari v. Raghubir Singh etc. 1958 All LJ 183 (Rev.) ). It would seem that the Board of Revenue struck a discordant note in the instant case only, but it is necessary to point out that the Board rested its decision on the circumstance that the appellant was the "sole heir" of Ram Adhar. In making that assumption the Board was in error, because in the earlier proceedings it was held that the appellant was not the widow of Ram Adhar and she traced no other line of heirship.8. It is clear from the entry on which the appellant relies that her name was entered as an occupant as from February 24, 1949. The Fasli year 1356 commenced on July 1, 1948 and ended on June 30, 1949. As the entry does not show that the appellant was in occupation of the land throughout the year, she is not entitled to the Adhivasi rights under S. 20 (b) (i) of the Act.9. Some attempt was made to contend that the appellant was shown as a joint occupant along with Ram Adhar during the lifetime of the latter and therefore she must be held to have been in possession for the whole year. An uncertified copy of the entry to which counsel drew our attention does not bear out this submission and in fact such a contention was never raised at any earlier stage. | 0[ds]5. Looking at the provision contained in Section 20 (b) (i), it seems to us plain that the Adhivasi rights can be claimed by those persons only who are recorded as occupants for the whole of the Fasli year 1356. It is important to remember that the rights conferred by Section 20 (b) (i) are available even and mostly to trespassers. Clearly therefore, there is, in the first instance, no justification for construing the provision with greater liberality than the language warrants. Special rights conferred by the Act ought to be subject to the special limitations imposed by thetherefore, the High Court of Allahabad and the Board of Revenue, U. P. have been uniformly taking the view that the right conferred by Section 20 (b) (i) can be availed of by those persons only who are recorded as occupants for the entire Fasli year 1356 and not by those who are recorded as occupants for a part of the year.(See Shyam Sunder Lal v. Mangali, 1963 All LJ 286; Ram Chander v. Chhotu, 1957 All LJ 24 (Rev.) Girdhari v. Raghubir Singh etc. 1958 All LJ 183 (Rev.) ). It would seem that the Board of Revenue struck a discordant note in the instant case only, but it is necessary to point out that the Board rested its decision on the circumstance that the appellant was the "sole heir" of Ram Adhar. In making that assumption the Board was in error, because in the earlier proceedings it was held that the appellant was not the widow of Ram Adhar and she traced no other line of heirship.8. It is clear from the entry on which the appellant relies that her name was entered as an occupant as from February 24, 1949. The Fasli year 1356 commenced on July 1, 1948 and ended on June 30, 1949. As the entry does not show that the appellant was in occupation of the land throughout the year, she is not entitled to the Adhivasi rights under S. 20 (b) (i) of the Act.Act.6. Apart from this aspect, any other view of Section 20 (b) (i) would make it unworkable in practice and would set the pace for lawlessness amongst trespassers. If different persons are in occupation of a land during different parts of the year, whom shall the court recognise as an Adhivasi and by what test shall the court pick and choose? Under the Uttar Pradesh Land Records Manual, the Lekhpal has to make threeinspections of every village in his halka, beginning respectively on August 15th, January 15th and April 15th of every year. (RuleOn the basis of these inspections, the Lekhpal has to make entries in the Khasra, that is to say in thein form No.). If a person other than aas classified in Part I or Part II of the Khatauni, is found to be in actual occupation, his name is to be recorded in the Remarks column (column No. 24) as "baqabza so and so" (Rulepara 3). It may so happen, and decided cases show that it does so happen, that different persons are found to be in possession of a land at the time of theinspections. The Lekhpal has to enter their names as occupants, may be in the remarks column, but the picture emerging at the close of the year will reveal that different persons were in occupation of theone during the Kharif season, some one during the Rabi season and some one probably taking charge, on the sly, of a bona vacantia. When the true owner is away, the trespassers will play and the law which governs them is might is right. It cannot be the policy of the Act that everyone of these fleeting trespassers must find recognition and be made eligible for the acquisition of Adhivasi rights. None of them, in our opinion, can qualify for those valuable rights. It was urged that the lastshould be recognised as an occupant to the exclusion of others but there is neither logic nor good sense in such a course. The last holder may have been in possession for a fractional part of the year and such possession may adventitiously coincide with the April visit of the Lekhpal. Besides, such a construction, as said already, will only encourage greater lawlessness amongst trespassers. Every tone, of them will make a frantic attempt to be last in the queue. | 0 | 1,498 | 838 | ### 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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year only and therefore she was not entitled to the Adhivasi rights. Special Appeal No. 344 of 1956 against that judgment was dismissed by a Division Bench in limine on October 31, 1956. This is an appeal by special leave against that decision.4. The sole foundation of the appellants claim is an entry which appears in the Khasra of 1356F, which is to the following effects-"Ram Adhar Pandey Bakasht Waris Baqa biz Smt. Patraji Motwaffi Bewa Ram Adhar Pandey Tarikh 24-2-49 Se", that is to say "Ram Adhar Pandey in cultivation heir in possession Smt. Patraji widow of deceased Ram Adhar Pandey from 24-2-49".The importance of this entry consists in the special benefit which such entries confer under Section 20 (b) (i) of the Act:20. Every person who..........(b) was recorded as occupant(i) of any land..... in the Khasra or Khatauni of 1356F....... shall........ be called Adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof."None of the four explanations to Section 20 is relevant for the present purpose.5. Looking at the provision contained in Section 20 (b) (i), it seems to us plain that the Adhivasi rights can be claimed by those persons only who are recorded as occupants for the whole of the Fasli year 1356. It is important to remember that the rights conferred by Section 20 (b) (i) are available even and mostly to trespassers. Clearly therefore, there is, in the first instance, no justification for construing the provision with greater liberality than the language warrants. Special rights conferred by the Act ought to be subject to the special limitations imposed by the Act.6. Apart from this aspect, any other view of Section 20 (b) (i) would make it unworkable in practice and would set the pace for lawlessness amongst trespassers. If different persons are in occupation of a land during different parts of the year, whom shall the court recognise as an Adhivasi and by what test shall the court pick and choose? Under the Uttar Pradesh Land Records Manual, the Lekhpal has to make three field-to-field inspections of every village in his halka, beginning respectively on August 15th, January 15th and April 15th of every year. (Rule A-55). On the basis of these inspections, the Lekhpal has to make entries in the Khasra, that is to say in the field-book, in form No. P-A-3 (Rule A-60). If a person other than a tenure-holder as classified in Part I or Part II of the Khatauni, is found to be in actual occupation, his name is to be recorded in the Remarks column (column No. 24) as "baqabza so and so" (Rule A-71, para 3). It may so happen, and decided cases show that it does so happen, that different persons are found to be in possession of a land at the time of the tri-annual inspections. The Lekhpal has to enter their names as occupants, may be in the remarks column, but the picture emerging at the close of the year will reveal that different persons were in occupation of the land-some one during the Kharif season, some one during the Rabi season and some one probably taking charge, on the sly, of a bona vacantia. When the true owner is away, the trespassers will play and the law which governs them is might is right. It cannot be the policy of the Act that everyone of these fleeting trespassers must find recognition and be made eligible for the acquisition of Adhivasi rights. None of them, in our opinion, can qualify for those valuable rights. It was urged that the last entry-holder should be recognised as an occupant to the exclusion of others but there is neither logic nor good sense in such a course. The last holder may have been in possession for a fractional part of the year and such possession may adventitiously coincide with the April visit of the Lekhpal. Besides, such a construction, as said already, will only encourage greater lawlessness amongst trespassers. Every tone, of them will make a frantic attempt to be last in the queue.7.Rightly therefore, the High Court of Allahabad and the Board of Revenue, U. P. have been uniformly taking the view that the right conferred by Section 20 (b) (i) can be availed of by those persons only who are recorded as occupants for the entire Fasli year 1356 and not by those who are recorded as occupants for a part of the year.(See Shyam Sunder Lal v. Mangali, 1963 All LJ 286; Ram Chander v. Chhotu, 1957 All LJ 24 (Rev.) Girdhari v. Raghubir Singh etc. 1958 All LJ 183 (Rev.) ). It would seem that the Board of Revenue struck a discordant note in the instant case only, but it is necessary to point out that the Board rested its decision on the circumstance that the appellant was the "sole heir" of Ram Adhar. In making that assumption the Board was in error, because in the earlier proceedings it was held that the appellant was not the widow of Ram Adhar and she traced no other line of heirship.8. It is clear from the entry on which the appellant relies that her name was entered as an occupant as from February 24, 1949. The Fasli year 1356 commenced on July 1, 1948 and ended on June 30, 1949. As the entry does not show that the appellant was in occupation of the land throughout the year, she is not entitled to the Adhivasi rights under S. 20 (b) (i) of the Act.9. Some attempt was made to contend that the appellant was shown as a joint occupant along with Ram Adhar during the lifetime of the latter and therefore she must be held to have been in possession for the whole year. An uncertified copy of the entry to which counsel drew our attention does not bear out this submission and in fact such a contention was never raised at any earlier stage.
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5. Looking at the provision contained in Section 20 (b) (i), it seems to us plain that the Adhivasi rights can be claimed by those persons only who are recorded as occupants for the whole of the Fasli year 1356. It is important to remember that the rights conferred by Section 20 (b) (i) are available even and mostly to trespassers. Clearly therefore, there is, in the first instance, no justification for construing the provision with greater liberality than the language warrants. Special rights conferred by the Act ought to be subject to the special limitations imposed by thetherefore, the High Court of Allahabad and the Board of Revenue, U. P. have been uniformly taking the view that the right conferred by Section 20 (b) (i) can be availed of by those persons only who are recorded as occupants for the entire Fasli year 1356 and not by those who are recorded as occupants for a part of the year.(See Shyam Sunder Lal v. Mangali, 1963 All LJ 286; Ram Chander v. Chhotu, 1957 All LJ 24 (Rev.) Girdhari v. Raghubir Singh etc. 1958 All LJ 183 (Rev.) ). It would seem that the Board of Revenue struck a discordant note in the instant case only, but it is necessary to point out that the Board rested its decision on the circumstance that the appellant was the "sole heir" of Ram Adhar. In making that assumption the Board was in error, because in the earlier proceedings it was held that the appellant was not the widow of Ram Adhar and she traced no other line of heirship.8. It is clear from the entry on which the appellant relies that her name was entered as an occupant as from February 24, 1949. The Fasli year 1356 commenced on July 1, 1948 and ended on June 30, 1949. As the entry does not show that the appellant was in occupation of the land throughout the year, she is not entitled to the Adhivasi rights under S. 20 (b) (i) of the Act.Act.6. Apart from this aspect, any other view of Section 20 (b) (i) would make it unworkable in practice and would set the pace for lawlessness amongst trespassers. If different persons are in occupation of a land during different parts of the year, whom shall the court recognise as an Adhivasi and by what test shall the court pick and choose? Under the Uttar Pradesh Land Records Manual, the Lekhpal has to make threeinspections of every village in his halka, beginning respectively on August 15th, January 15th and April 15th of every year. (RuleOn the basis of these inspections, the Lekhpal has to make entries in the Khasra, that is to say in thein form No.). If a person other than aas classified in Part I or Part II of the Khatauni, is found to be in actual occupation, his name is to be recorded in the Remarks column (column No. 24) as "baqabza so and so" (Rulepara 3). It may so happen, and decided cases show that it does so happen, that different persons are found to be in possession of a land at the time of theinspections. The Lekhpal has to enter their names as occupants, may be in the remarks column, but the picture emerging at the close of the year will reveal that different persons were in occupation of theone during the Kharif season, some one during the Rabi season and some one probably taking charge, on the sly, of a bona vacantia. When the true owner is away, the trespassers will play and the law which governs them is might is right. It cannot be the policy of the Act that everyone of these fleeting trespassers must find recognition and be made eligible for the acquisition of Adhivasi rights. None of them, in our opinion, can qualify for those valuable rights. It was urged that the lastshould be recognised as an occupant to the exclusion of others but there is neither logic nor good sense in such a course. The last holder may have been in possession for a fractional part of the year and such possession may adventitiously coincide with the April visit of the Lekhpal. Besides, such a construction, as said already, will only encourage greater lawlessness amongst trespassers. Every tone, of them will make a frantic attempt to be last in the queue.
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Pravin Vs. The State of Maharashtra | was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul Ronghe (PW-1) is not corroborated by any other evidence. Prosecution has not examined mother of Rahul Ronghe (PW-1).21. Cross-examination of Rahul Ronghe (PW-1) shows that he is not a reliable witness. He has given answers to the material questions evasively. Some of the questions put to him were within his knowledge. But, he intentionally did not admit or deny them specifically. His cross-examination shows that he himself was a mental patient undergoing treatment of a Psychiatrist at Aurangabad. Therefore, the evidence of Rahul Ronghe (PW-1) that he saw blood stains on the face of appellant is not reliable.22. Regarding circumstance concerning discovery of shirt by the appellant (the learned trial Court has relied on this circumstance). It is pertinent to note that Rahul Ronghe (PW-1) has not stated in his evidence that, when appellant came to him in the night, he did not see shirt on his person. He has stated that after 56 days. He was called by police and shown the shirt of appellant and he identified that it was the same shirt which was on his person in the night of incident. Amol Bonde (PW-2) has also stated the same thing.23. It is pertinent to note that Rahul Ronghe (PW-1) should have stated in his evidence that when appellant came to him in the night at about 1.00 a.m., he did not see the same shirt on his person. Therefore, discovery appears to be doubtful. Moreover, on perusal of the Memorandum panchanama and Discovery panchanama, it is clear that Memorandum panchanama was completed at about 12.40 p.m. on 5.6.2014 and Discovery panchanama started at about 12.45 p.m. on the same day. As per the cross-examination of Sachin Sahebrao Kale (PW-4), a panch witness, Police Station, Walgaon is at a distance of 15 minutes from Kalamgaon and 20 minutes are required to go to the spot where the shirt was kept. Ten minutes were required to start to go after execution of Exh.35.24. Exh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kale (PW-4), the shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghe (PW-1) has not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.25. Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per the cross-examination of Sachin Kale (PW-4), more than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.27. The learned trial Court has taken into consideration that the appellant has not explained as to how there were blood stains of blood of deceased on his shirt. It is pertinent to note that prosecution has first to prove its case against the accused beyond reasonable doubt. Thereafter, burden shifts on the accused. In the case of Suresh Vithal Parkar .vs. The State of Maharashtra reported in 2015 ALL MR (Cri) 1287, it is held that prosecution has not established exact time of death nor has it established presence of accused in house at about time when offence was committed. In absence of such evidence, failure of accused to offer any explanation u/s.106 cannot be used as a circumstance against accused nor can a presumption of guilt be drawn on his failure.28. In the present case, as per the evidence of Rahul Ronghe (PW1) (in cross-examination), the appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naidu (PW-5), probable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bonde (PW-2), customers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant. Hence, we allow the appeal and pass the following order. | 1[ds]17. Evidence of Rahul Rongheitself shows that the appellant came at about 1.00 a.m. and slept by his side. As perof Amol Bonde (PW2), there are 24 Dhabas on Amravati road and the customers used to visit Dhabas for dinner. Those Dhabas used to remain open upto 1.00 a.m. It is pertinent to note that, when, as per the evidence of Rahul Ronghe (PW1), the appellant came to him at about 1.00 a.m., it shows that the appellant must have left Dhaba after 12.00 midnight. As per the evidence of Medical Officer, the death was after 2.00 a.m. in the night. Death must have occurred in between 2 a.m. to 6 a.m. Therefore, it is clear that prosecution has miserably failed to prove that appellant was lastly in the company of deceased.18. When the case of prosecution is based on last seen theory, then time of death is very material. Honble Supreme Court in the case of Nizam and another .vs. State of Rajasthan reported in ABC 2015 (II) 276 SC has held that where time gap is long, it would be unsafe to base the convicting on the last seen theory. In the case of Gambhir .vs. State of Maharashtra reported in AIR 1982 SC 1157 Honble Supreme Court has observed that .....it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmis company and the time of death of the deceased. Many more persons might have come in between. Besides there is evidence on the record to show that other persons also used to visit Laxmis house.19. In the present case, there is a long gap between the time of death and the appellant lastly seen in the company of deceased. As per the evidence of Medical Officer Dr.Abhishek Naidu, time of death of deceased was from 8 to 12 hours from the time of post mortem. Post Mortem started at about 2.00 p.m. on 3.6.2014. Incident took place in the night in between 2.6.2014 to 3.6.2014. Therefore, death might be in between 2.00 a.m. to 6.00 a.m. As per the evidence of Rahul Ronghe(PW1), appellant came tohim at about 1.00 a.m. in the night and slept by his side. Therefore, the evidence of last seen adduced by the prosecution is not proved.20. Rahul Ronghehas stated that, early in the morning. his mother woke him up and told that there is blood like stains on the face of appellant. Appellant was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul RongheExh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kalethe shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghehas not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per theof Sachin Kalemore than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.In the present case, as per the evidence of Rahul Ronghe (PW1) (inthe appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naiduprobable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bondecustomers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant | 1 | 3,143 | 1,036 | ### 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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was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul Ronghe (PW-1) is not corroborated by any other evidence. Prosecution has not examined mother of Rahul Ronghe (PW-1).21. Cross-examination of Rahul Ronghe (PW-1) shows that he is not a reliable witness. He has given answers to the material questions evasively. Some of the questions put to him were within his knowledge. But, he intentionally did not admit or deny them specifically. His cross-examination shows that he himself was a mental patient undergoing treatment of a Psychiatrist at Aurangabad. Therefore, the evidence of Rahul Ronghe (PW-1) that he saw blood stains on the face of appellant is not reliable.22. Regarding circumstance concerning discovery of shirt by the appellant (the learned trial Court has relied on this circumstance). It is pertinent to note that Rahul Ronghe (PW-1) has not stated in his evidence that, when appellant came to him in the night, he did not see shirt on his person. He has stated that after 56 days. He was called by police and shown the shirt of appellant and he identified that it was the same shirt which was on his person in the night of incident. Amol Bonde (PW-2) has also stated the same thing.23. It is pertinent to note that Rahul Ronghe (PW-1) should have stated in his evidence that when appellant came to him in the night at about 1.00 a.m., he did not see the same shirt on his person. Therefore, discovery appears to be doubtful. Moreover, on perusal of the Memorandum panchanama and Discovery panchanama, it is clear that Memorandum panchanama was completed at about 12.40 p.m. on 5.6.2014 and Discovery panchanama started at about 12.45 p.m. on the same day. As per the cross-examination of Sachin Sahebrao Kale (PW-4), a panch witness, Police Station, Walgaon is at a distance of 15 minutes from Kalamgaon and 20 minutes are required to go to the spot where the shirt was kept. Ten minutes were required to start to go after execution of Exh.35.24. Exh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kale (PW-4), the shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghe (PW-1) has not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.25. Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per the cross-examination of Sachin Kale (PW-4), more than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.27. The learned trial Court has taken into consideration that the appellant has not explained as to how there were blood stains of blood of deceased on his shirt. It is pertinent to note that prosecution has first to prove its case against the accused beyond reasonable doubt. Thereafter, burden shifts on the accused. In the case of Suresh Vithal Parkar .vs. The State of Maharashtra reported in 2015 ALL MR (Cri) 1287, it is held that prosecution has not established exact time of death nor has it established presence of accused in house at about time when offence was committed. In absence of such evidence, failure of accused to offer any explanation u/s.106 cannot be used as a circumstance against accused nor can a presumption of guilt be drawn on his failure.28. In the present case, as per the evidence of Rahul Ronghe (PW1) (in cross-examination), the appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naidu (PW-5), probable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bonde (PW-2), customers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant. Hence, we allow the appeal and pass the following order.
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17. Evidence of Rahul Rongheitself shows that the appellant came at about 1.00 a.m. and slept by his side. As perof Amol Bonde (PW2), there are 24 Dhabas on Amravati road and the customers used to visit Dhabas for dinner. Those Dhabas used to remain open upto 1.00 a.m. It is pertinent to note that, when, as per the evidence of Rahul Ronghe (PW1), the appellant came to him at about 1.00 a.m., it shows that the appellant must have left Dhaba after 12.00 midnight. As per the evidence of Medical Officer, the death was after 2.00 a.m. in the night. Death must have occurred in between 2 a.m. to 6 a.m. Therefore, it is clear that prosecution has miserably failed to prove that appellant was lastly in the company of deceased.18. When the case of prosecution is based on last seen theory, then time of death is very material. Honble Supreme Court in the case of Nizam and another .vs. State of Rajasthan reported in ABC 2015 (II) 276 SC has held that where time gap is long, it would be unsafe to base the convicting on the last seen theory. In the case of Gambhir .vs. State of Maharashtra reported in AIR 1982 SC 1157 Honble Supreme Court has observed that .....it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmis company and the time of death of the deceased. Many more persons might have come in between. Besides there is evidence on the record to show that other persons also used to visit Laxmis house.19. In the present case, there is a long gap between the time of death and the appellant lastly seen in the company of deceased. As per the evidence of Medical Officer Dr.Abhishek Naidu, time of death of deceased was from 8 to 12 hours from the time of post mortem. Post Mortem started at about 2.00 p.m. on 3.6.2014. Incident took place in the night in between 2.6.2014 to 3.6.2014. Therefore, death might be in between 2.00 a.m. to 6.00 a.m. As per the evidence of Rahul Ronghe(PW1), appellant came tohim at about 1.00 a.m. in the night and slept by his side. Therefore, the evidence of last seen adduced by the prosecution is not proved.20. Rahul Ronghehas stated that, early in the morning. his mother woke him up and told that there is blood like stains on the face of appellant. Appellant was sleeping. When he woke up, they both inquired from him, but the appellant did not disclose anything. He went to bathroom and washed his hands, legs and face. This particular evidence of Rahul RongheExh.35 was completed at 12.40 p.m.. Ten minutes required thereafter means after 12.50 they started to go with the accused. Again twenty minutes were required to reach to the spot means they might have reached to the spot after 1.10 p.m. But Discovery panchanama shows that it started at 12.45 and completed at about 2.15 p.m. Therefore, discovery of clothes itself is doubtful. Moreover, no soil stains were found on the seized shirt of appellant. According to Sachin Kalethe shirt was hidden in the soil. Appellant excavated the soil and discovered/produced the shirt. In such circumstances, there should be some soil stains on the shirt. Therefore, discovery of shirt of appellant is doubtful because Rahul Ronghehas not stated in his evidence that he did not find the said shirt on the person of appellant when he came to him in the night at about 1.00 a.m.Memorandum panchanama and Discovery panchanama show that both were prepared at the same time after a gap of five minutes. As per theof Sachin Kalemore than thirty minutes were required to reach to spot and therefore, Discovery panchanama itself is doubtful. Hence, this circumstance cannot be said to be proved against the appellant.26. The circumstance in respect of C.A. Report showing presence of blood stains of deceased on the shirt of appellant is also doubtful because discovery of shirt by the appellant itself is doubtful. Hence, this circumstance cannot be taken into consideration. Moreover, the evidence of C.A. is not a substantive piece of evidence. It can only be used as a corroborative piece of evidence.In the present case, as per the evidence of Rahul Ronghe (PW1) (inthe appellant was not in the company of deceased at the time of incident. As per his evidence, appellant came to him in the night at about 1.00 a.m. and slept by his side. As per the evidence of Medical Officer Dr.Abhishek Naiduprobable time of death was from 2.00 a.m. to 6 a.m. Appellant must have left dhaba/spot of incident before 1.00 p.m. i.e. after 12.00 midnight. As per evidence of Amol Bondecustomers used to visit dhaba upto 1.00 p.m. And therefore, there is possibility of presence of any other person on the spot of incident. Viscera report shows that the deceased was under the influence of liquor at the time of incident.29. As per the guidelines given by Honble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra , the circumstantial evidence should be of a conclusive nature which only points out guilt towards the accused and none else. In the present case, prosecution has failed to establish that the appellant was lastly in the company of deceased. Evidence in respect of Discovery panchanama of shirt is doubtful. Therefore, C.A. Report is also not helpful to the prosecution. All the evidence on record is not properly considered by the trial Court and wrongly convicted the appellant
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Firm Ishardas Devi Chand & Anr Vs. R. B. Parkash Chand & Anr | the revision filed by the appellants in limine. The appellants having obtained special leave the matter is before us.2. The relevant facts may be shortly stated. Firm Ishar Das Devi Chand and its two partners Devi Chand and Manohar Lal, brought a suit for a permanent injunction restraining R. B. Prakash Chand, respondent before us, from taking possession of the demised premises, namely. No. 1045/II-13, Katra Ahluwalia, Amritsar, in execution of an eviction order obtained by the respondent against the appellants and one Shri Ishar Das, as per Rent Controllers order dated February 22, 1967. It appears that Ishar Das, partner of the firm called Tara Chand Ishar Das, had executed a rent note, dated May 1, 1948, in favour of the respondent. On February 22, 1967, the Rent Controller passed an order of ejectment against the firm Tara Chand Ishar Das and Shri Ishar Das.3. It appears that in the eviction application filed by the respondent the appellants had filed an application under Section 4 of the East Punjab Urban Rent Restriction Act, 1949, which was dismissed. In that application an issue was raised as to whether any relationship of landlord and tenant existed between the appellants and the respondent.4. It was contended before the learned Sub-Judge that the respondent had accepted payment of three cheques, one on March 13, 1963, for Rs. 1,175, second on April 2, 1964, for Rs. 1,875, and the third cheque on June 17, 1965, for Rs. 1,500. According to the appellants, this acceptance of the rent made them tenants under the respondent.5. The learned Sub-Judge went into these facts and came to the conclusion that the appellants had not made out a prima facie case. According to the learned Sub-Judge, even if the payment had been received, as alleged by the appellants, then it would not mean that the landlord accepted the occupiers of the premises as his tenants. Following Hemant Kumar v. Ayodhya Prasad, AIR 1957 Madh Bha 95 an Abdul Hamid Khan v. Tridip Kumar Chandra, AIR 1953 Assam 104 he held that the appellants were sub-tenants, and that the liability to be ejected in execution of a valid order could not be said to be an "injury" within Order XXXIX, Rule 2. The Trial Court thought that the appellants could have other efficacious remedies to obstruct possession under the provisions of Civil Procedure Code. According to the Trial Court, however, unless the ejectment order was set aside its execution could not be an "injury" as contemplated by law.6. It seems to us that this order dated July 20, 1067, was clearly appealable under Order XLIII, Rule 1, Civil Procedure Code. Order XLIII inter alia provides:"Order XLIII, Rule 1. An appeal shall lie from the following orders under the provisions of Section 104, namely:.... .... .... .... .... .... ....(r) an order under Rule 1, Rule 2, Rule 4 or Rule 10, of Order XXXIX."7. It is common ground that the appellants filed an application under Order XXXIX, Rules 1 and 2, and Section 151, C. P. C. The learned Sub-Judge had to consider whether this application was competent or not competent under R. 2, of Order XXXIX. In deciding that no such application lay under Order XXXIX, Rule 2 on the ground thatwhat the appellants were complaining of was not an injury withing Order XXXIX, Rule 2 he was passing an order under O. XXXIX, R. 2 itself. In appeal the appellants could contend that the learned Sub-Judge had misconstrued Order XXXIX, Rule 2, including the word "injury".8. The preliminary objection of the respondent before the learned District Judge that the order dated July 20, 1967, of the Sub-Judge was passed under Section 151, Civil Procedure Code, and not under Order XXXIX, Rules 1 and 2, Civil Procedure Code,is not sound because in holding that Order XXXIX, Rule 2 did not apply the learned Sub-Judge was not exercising his inherent powers. What the learned District Judge seems to have done is to hold that the application for temporary injunction did not fall, within Order XXXIX, Rule 2 and, therefore, no appeal lay. This reasoning is really on the merits of the case and not relevant to the preliminary objection raised by the respondent.9. We must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, date July 20, 1967.10. Two courses are now open to us; one, that we should set aside the order of the District Judge and direct him to decide the appeal on the merits, and the other, that we should dispose of the matter here. We were informed by the learned Counsel for the respondent that the ejectment order dated February 22, 1967, had been set aside and the application for temporary injunction had become infructuous. But the learned Counsel for the appellants says that the High Court, in appeal, might restore that order, and the matter should be remitted to the District Judge.11. If seems to us that in exercise or the powers under Article 136 we should not interfere with the order of the District Judge. On the merits there is not much to be said in favour of issuing a temporary injunction because the appellants have not made out a prima facie case. The application of the appellants under Section 4 of the East Punjab Urban Rent Restriction Act stood dismissed and the order dismissing that application has not been challenged by the appellants up-to-date. In the proceedings the respondent had denied that there was any relationship of landlord and tenant existing between the appellants and the respondent. Further the learned Sub-Judge, after holding that the appellants had been guilty of laches and delays, came to the conclusion that the balance of convenience was more in favour of the respondent than in favour of the appellants. The learned Sub-Judge does not seem to have exercised his discretion capriciously or arbitrarily and no case for interference has been made out. | 0[ds]6. It seems to us that this order dated July 20, 1067, was clearly appealable under Order XLIII, Rule 1, Civil Procedure Code.The preliminary objection of the respondent before the learned District Judge that the order dated July 20, 1967, of the Sub-Judge was passed under Section 151, Civil Procedure Code, and not under Order XXXIX, Rules 1 and 2, Civil Procedurenot sound because in holding that Order XXXIX, Rule 2 did not apply the learned Sub-Judge was not exercising his inherent powers. What the learned District Judge seems to have done is to hold that the application for temporary injunction did not fall, within Order XXXIX, Rule 2 and, therefore, no appeal lay. This reasoning is really on the merits of the case and not relevant to the preliminary objection raised by the respondent.9. We must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, date July 20, 1967.If seems to us that in exercise or the powers under Article 136 we should not interfere with the order of the District Judge. On the merits there is not much to be said in favour of issuing a temporary injunction because the appellants have not made out a prima facie case. The application of the appellants under Section 4 of the East Punjab Urban Rent Restriction Act stood dismissed and the order dismissing that application has not been challenged by the appellants up-to-date. In the proceedings the respondent had denied that there was any relationship of landlord and tenant existing between the appellants and the respondent. Further the learned Sub-Judge, after holding that the appellants had been guilty of laches and delays, came to the conclusion that the balance of convenience was more in favour of the respondent than in favour of the appellants. The learned Sub-Judge does not seem to have exercised his discretion capriciously or arbitrarily and no case for interference has been made out. | 0 | 1,269 | 367 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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the revision filed by the appellants in limine. The appellants having obtained special leave the matter is before us.2. The relevant facts may be shortly stated. Firm Ishar Das Devi Chand and its two partners Devi Chand and Manohar Lal, brought a suit for a permanent injunction restraining R. B. Prakash Chand, respondent before us, from taking possession of the demised premises, namely. No. 1045/II-13, Katra Ahluwalia, Amritsar, in execution of an eviction order obtained by the respondent against the appellants and one Shri Ishar Das, as per Rent Controllers order dated February 22, 1967. It appears that Ishar Das, partner of the firm called Tara Chand Ishar Das, had executed a rent note, dated May 1, 1948, in favour of the respondent. On February 22, 1967, the Rent Controller passed an order of ejectment against the firm Tara Chand Ishar Das and Shri Ishar Das.3. It appears that in the eviction application filed by the respondent the appellants had filed an application under Section 4 of the East Punjab Urban Rent Restriction Act, 1949, which was dismissed. In that application an issue was raised as to whether any relationship of landlord and tenant existed between the appellants and the respondent.4. It was contended before the learned Sub-Judge that the respondent had accepted payment of three cheques, one on March 13, 1963, for Rs. 1,175, second on April 2, 1964, for Rs. 1,875, and the third cheque on June 17, 1965, for Rs. 1,500. According to the appellants, this acceptance of the rent made them tenants under the respondent.5. The learned Sub-Judge went into these facts and came to the conclusion that the appellants had not made out a prima facie case. According to the learned Sub-Judge, even if the payment had been received, as alleged by the appellants, then it would not mean that the landlord accepted the occupiers of the premises as his tenants. Following Hemant Kumar v. Ayodhya Prasad, AIR 1957 Madh Bha 95 an Abdul Hamid Khan v. Tridip Kumar Chandra, AIR 1953 Assam 104 he held that the appellants were sub-tenants, and that the liability to be ejected in execution of a valid order could not be said to be an "injury" within Order XXXIX, Rule 2. The Trial Court thought that the appellants could have other efficacious remedies to obstruct possession under the provisions of Civil Procedure Code. According to the Trial Court, however, unless the ejectment order was set aside its execution could not be an "injury" as contemplated by law.6. It seems to us that this order dated July 20, 1067, was clearly appealable under Order XLIII, Rule 1, Civil Procedure Code. Order XLIII inter alia provides:"Order XLIII, Rule 1. An appeal shall lie from the following orders under the provisions of Section 104, namely:.... .... .... .... .... .... ....(r) an order under Rule 1, Rule 2, Rule 4 or Rule 10, of Order XXXIX."7. It is common ground that the appellants filed an application under Order XXXIX, Rules 1 and 2, and Section 151, C. P. C. The learned Sub-Judge had to consider whether this application was competent or not competent under R. 2, of Order XXXIX. In deciding that no such application lay under Order XXXIX, Rule 2 on the ground thatwhat the appellants were complaining of was not an injury withing Order XXXIX, Rule 2 he was passing an order under O. XXXIX, R. 2 itself. In appeal the appellants could contend that the learned Sub-Judge had misconstrued Order XXXIX, Rule 2, including the word "injury".8. The preliminary objection of the respondent before the learned District Judge that the order dated July 20, 1967, of the Sub-Judge was passed under Section 151, Civil Procedure Code, and not under Order XXXIX, Rules 1 and 2, Civil Procedure Code,is not sound because in holding that Order XXXIX, Rule 2 did not apply the learned Sub-Judge was not exercising his inherent powers. What the learned District Judge seems to have done is to hold that the application for temporary injunction did not fall, within Order XXXIX, Rule 2 and, therefore, no appeal lay. This reasoning is really on the merits of the case and not relevant to the preliminary objection raised by the respondent.9. We must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, date July 20, 1967.10. Two courses are now open to us; one, that we should set aside the order of the District Judge and direct him to decide the appeal on the merits, and the other, that we should dispose of the matter here. We were informed by the learned Counsel for the respondent that the ejectment order dated February 22, 1967, had been set aside and the application for temporary injunction had become infructuous. But the learned Counsel for the appellants says that the High Court, in appeal, might restore that order, and the matter should be remitted to the District Judge.11. If seems to us that in exercise or the powers under Article 136 we should not interfere with the order of the District Judge. On the merits there is not much to be said in favour of issuing a temporary injunction because the appellants have not made out a prima facie case. The application of the appellants under Section 4 of the East Punjab Urban Rent Restriction Act stood dismissed and the order dismissing that application has not been challenged by the appellants up-to-date. In the proceedings the respondent had denied that there was any relationship of landlord and tenant existing between the appellants and the respondent. Further the learned Sub-Judge, after holding that the appellants had been guilty of laches and delays, came to the conclusion that the balance of convenience was more in favour of the respondent than in favour of the appellants. The learned Sub-Judge does not seem to have exercised his discretion capriciously or arbitrarily and no case for interference has been made out.
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### Explanation:
6. It seems to us that this order dated July 20, 1067, was clearly appealable under Order XLIII, Rule 1, Civil Procedure Code.The preliminary objection of the respondent before the learned District Judge that the order dated July 20, 1967, of the Sub-Judge was passed under Section 151, Civil Procedure Code, and not under Order XXXIX, Rules 1 and 2, Civil Procedurenot sound because in holding that Order XXXIX, Rule 2 did not apply the learned Sub-Judge was not exercising his inherent powers. What the learned District Judge seems to have done is to hold that the application for temporary injunction did not fall, within Order XXXIX, Rule 2 and, therefore, no appeal lay. This reasoning is really on the merits of the case and not relevant to the preliminary objection raised by the respondent.9. We must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, date July 20, 1967.If seems to us that in exercise or the powers under Article 136 we should not interfere with the order of the District Judge. On the merits there is not much to be said in favour of issuing a temporary injunction because the appellants have not made out a prima facie case. The application of the appellants under Section 4 of the East Punjab Urban Rent Restriction Act stood dismissed and the order dismissing that application has not been challenged by the appellants up-to-date. In the proceedings the respondent had denied that there was any relationship of landlord and tenant existing between the appellants and the respondent. Further the learned Sub-Judge, after holding that the appellants had been guilty of laches and delays, came to the conclusion that the balance of convenience was more in favour of the respondent than in favour of the appellants. The learned Sub-Judge does not seem to have exercised his discretion capriciously or arbitrarily and no case for interference has been made out.
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State of Madhya Pradesh Through Principal Secretary & Another Vs. Mahendra Gupta & Others | Judge, the latter agreeing. The judgment was delivered on February 22, 1933. But Harrison J. went on leave before signing the judgment, which was signed by Agha Haider J., the Deputy Registrar appending a note that Harrison J. had gone on leave before signing the judgment he delivered.7. Order XLI, Rule 31 requires that the judgment of the appellate Court shall be in writing and shall state various matters, and "shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."8. The Rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the Rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The Rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment, but even so the convenience of the Court and the interest of litigants must prevail. The defect is merely an irregularity. But in truth the difficulty is disposed of by Sections 99 and 108 of the Civil Procedure Code. Section 99 provides that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. That Section conies in the part dealing with appeals from original decrees. But Section 108 applies the same provision to appeals from appellate decrees and it is always in the discretion of the Board to apply the principle on appeal to His Majesty in Council. In their Lordships judgment, the defect here was an irregularity not affecting the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree. "24. Another judgment, which was cited by the appellant was A. Shanta Rao Vs. State Transport Appellate Tribunal, Hyderabad & Ors., AIR 1985 A.P. 256. In the above case, State Transport Appellate Tribunal consisting of Chairman and two members heard the matter. However, the order was issued only with the signature of Chairman. The order was attacked on the ground that the other two members having not signed the order, the order is illegal. Repelling the contention following was stated in Paragraph 9:"“9. On the first question, I am of the view that once the minutes of the State Transport Authority are found to be signed by all the members including the Chairman, the mere fact that the final order is communicated under the signature of the Chairman alone does not amount to any illegality. The Court has to see the substance of the matter and not the mere form, and if it is clear that all the members of the Tribunal have applied their mind to the facts of the case and arrived at a conclusion, it does not matter if the communication is made under the signature of the Chairman. "25. Although, in above two cases, there was concurrence of all the members of Court/Tribunal but all had not signed the order. The present is a case where Chairperson and two members heard the application in meeting dated 16.10.2014 but order was subsequently pronounced on 15.12.2014 and signed by only Chairperson and one member. The third member having been transferred in the meanwhile. As noticed above, there is no pleading in the writ petition as to whether the third member, who was transferred had agreed with the proposed order or did not agree with the decision, which was to be delivered by the State Transport Authority. Had third member agreed, there cannot be any debate in this matter, the issues being covered by judgment of this Court in Ramaswamy Nadar(supra) and judgment of the Privy Council in Gokal Chand Jagan Nath (supra). But there being neither any pleading nor any material to come to the conclusion that the third member has agreed with the opinion, we have proceeded to examine the present case as if, the third member did not agree with the order proposed. We have already noticed the reason for coming to the conclusion that the order issued by the State Transport Authority, signed by the Chairperson and one member is a valid order having been issued with the majority opinion of two out of three, who heard the application on 16.10.2014. Thus, in any view of the matter, no illegality can be attached with the order dated 15.12.2014, which was signed by the Chairperson and one member.26. In view of the foregoing discussion, we are of the opinion that decision dated 15.12.2014 issued with the signatures of Chairperson and one member was a valid decision in spite of the fact that one of the members who was present in the hearing when the meeting took place on 16.10.2014 and had been transferred in the meanwhile did not sign the order. The decision of the State Transport Authority dated 15.12.2014 was fully in accordance with the statutory scheme of the Rules, 1994 and both the learned Single Judge and Division Bench erred in holding the decision as invalid. We, thus, are of the view that judgments of learned Single Judge and Division Bench do not express the correct view of the law. | 1[ds]15. Although Rules, 1994 do not expressly provide that decision of the State Transport Authority shall be taken in accordance with the opinions of the majority but there being no special majority provided for decision to be taken in the meeting of the State Transport Authority, normal, rule that decision by majority of the members present has to be followed. In the present case when three members were present and quorum was complete, the decision taken by majority, i.e., opinion of two members shall form the valid decision of the State Transport Authority.In the instant case there is nothing on record to indicate that the STA with complete quorum heard the matter and before one of the members Shri Sanjay Chaudhry was transferred out any draft order was got approved from the said transferred member.The above observation was made by the Division Bench of the High Court while distinguishing the judgment of this Court in Ramaswamy Nadar v. The State of Madras, AIR 1958 SC 56 . Before we refer to the decision of this Court in Ramaswamy Nadar, it is clear that observation of the Division Bench of the High Court that there is nothing on record to indicate that the quorum of State Transport Authority was complete, is factually wrong. The order of the State Transport Authority dated 15.12.2014 has been brought on record as Annexure P1 and the relevant portion of the order has been extracted above by us which clearly mentions that the hearing took place on 16.10.2014 where the Chairperson and two members were present the quorum being three as per Rule 68(1) was complete. The hearing took place by three members which is noted in the order itself, as extracted above. Thus, observation of the Division Bench of the High Court that quorum was not complete and matter was not heard by three members is not correct.The present is a case where decision by a multimember body is to be taken in the meeting of the Committee as per the statutory Rules. There being no such majority provided for taking a decision, the decision by majority has to be accepted as the opinion of the State Transport Authority.Although, in above two cases, there was concurrence of all the members of Court/Tribunal but all had not signed the order. The present is a case where Chairperson and two members heard the application in meeting dated 16.10.2014 but order was subsequently pronounced on 15.12.2014 and signed by only Chairperson and one member. The third member having been transferred in the meanwhile. As noticed above, there is no pleading in the writ petition as to whether the third member, who was transferred had agreed with the proposed order or did not agree with the decision, which was to be delivered by the State Transport Authority. Had third member agreed, there cannot be any debate in this matter, the issues being covered by judgment of this Court in Ramaswamy Nadar(supra) and judgment of the Privy Council in Gokal Chand Jagan Nath (supra). But there being neither any pleading nor any material to come to the conclusion that the third member has agreed with the opinion, we have proceeded to examine the present case as if, the third member did not agree with the order proposed. We have already noticed the reason for coming to the conclusion that the order issued by the State Transport Authority, signed by the Chairperson and one member is a valid order having been issued with the majority opinion of two out of three, who heard the application on 16.10.2014. Thus, in any view of the matter, no illegality can be attached with the order dated 15.12.2014, which was signed by the Chairperson and one member.26. In view of the foregoing discussion, we are of the opinion that decision dated 15.12.2014 issued with the signatures of Chairperson and one member was a valid decision in spite of the fact that one of the members who was present in the hearing when the meeting took place on 16.10.2014 and had been transferred in the meanwhile did not sign the order. The decision of the State Transport Authority dated 15.12.2014 was fully in accordance with the statutory scheme of the Rules, 1994 and both the learned Single Judge and Division Bench erred in holding the decision as invalid. We, thus, are of the view that judgments of learned Single Judge and Division Bench do not express the correct view of the law. | 1 | 4,921 | 806 | ### Instruction:
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Judge, the latter agreeing. The judgment was delivered on February 22, 1933. But Harrison J. went on leave before signing the judgment, which was signed by Agha Haider J., the Deputy Registrar appending a note that Harrison J. had gone on leave before signing the judgment he delivered.7. Order XLI, Rule 31 requires that the judgment of the appellate Court shall be in writing and shall state various matters, and "shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."8. The Rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the Rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The Rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment, but even so the convenience of the Court and the interest of litigants must prevail. The defect is merely an irregularity. But in truth the difficulty is disposed of by Sections 99 and 108 of the Civil Procedure Code. Section 99 provides that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. That Section conies in the part dealing with appeals from original decrees. But Section 108 applies the same provision to appeals from appellate decrees and it is always in the discretion of the Board to apply the principle on appeal to His Majesty in Council. In their Lordships judgment, the defect here was an irregularity not affecting the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree. "24. Another judgment, which was cited by the appellant was A. Shanta Rao Vs. State Transport Appellate Tribunal, Hyderabad & Ors., AIR 1985 A.P. 256. In the above case, State Transport Appellate Tribunal consisting of Chairman and two members heard the matter. However, the order was issued only with the signature of Chairman. The order was attacked on the ground that the other two members having not signed the order, the order is illegal. Repelling the contention following was stated in Paragraph 9:"“9. On the first question, I am of the view that once the minutes of the State Transport Authority are found to be signed by all the members including the Chairman, the mere fact that the final order is communicated under the signature of the Chairman alone does not amount to any illegality. The Court has to see the substance of the matter and not the mere form, and if it is clear that all the members of the Tribunal have applied their mind to the facts of the case and arrived at a conclusion, it does not matter if the communication is made under the signature of the Chairman. "25. Although, in above two cases, there was concurrence of all the members of Court/Tribunal but all had not signed the order. The present is a case where Chairperson and two members heard the application in meeting dated 16.10.2014 but order was subsequently pronounced on 15.12.2014 and signed by only Chairperson and one member. The third member having been transferred in the meanwhile. As noticed above, there is no pleading in the writ petition as to whether the third member, who was transferred had agreed with the proposed order or did not agree with the decision, which was to be delivered by the State Transport Authority. Had third member agreed, there cannot be any debate in this matter, the issues being covered by judgment of this Court in Ramaswamy Nadar(supra) and judgment of the Privy Council in Gokal Chand Jagan Nath (supra). But there being neither any pleading nor any material to come to the conclusion that the third member has agreed with the opinion, we have proceeded to examine the present case as if, the third member did not agree with the order proposed. We have already noticed the reason for coming to the conclusion that the order issued by the State Transport Authority, signed by the Chairperson and one member is a valid order having been issued with the majority opinion of two out of three, who heard the application on 16.10.2014. Thus, in any view of the matter, no illegality can be attached with the order dated 15.12.2014, which was signed by the Chairperson and one member.26. In view of the foregoing discussion, we are of the opinion that decision dated 15.12.2014 issued with the signatures of Chairperson and one member was a valid decision in spite of the fact that one of the members who was present in the hearing when the meeting took place on 16.10.2014 and had been transferred in the meanwhile did not sign the order. The decision of the State Transport Authority dated 15.12.2014 was fully in accordance with the statutory scheme of the Rules, 1994 and both the learned Single Judge and Division Bench erred in holding the decision as invalid. We, thus, are of the view that judgments of learned Single Judge and Division Bench do not express the correct view of the law.
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15. Although Rules, 1994 do not expressly provide that decision of the State Transport Authority shall be taken in accordance with the opinions of the majority but there being no special majority provided for decision to be taken in the meeting of the State Transport Authority, normal, rule that decision by majority of the members present has to be followed. In the present case when three members were present and quorum was complete, the decision taken by majority, i.e., opinion of two members shall form the valid decision of the State Transport Authority.In the instant case there is nothing on record to indicate that the STA with complete quorum heard the matter and before one of the members Shri Sanjay Chaudhry was transferred out any draft order was got approved from the said transferred member.The above observation was made by the Division Bench of the High Court while distinguishing the judgment of this Court in Ramaswamy Nadar v. The State of Madras, AIR 1958 SC 56 . Before we refer to the decision of this Court in Ramaswamy Nadar, it is clear that observation of the Division Bench of the High Court that there is nothing on record to indicate that the quorum of State Transport Authority was complete, is factually wrong. The order of the State Transport Authority dated 15.12.2014 has been brought on record as Annexure P1 and the relevant portion of the order has been extracted above by us which clearly mentions that the hearing took place on 16.10.2014 where the Chairperson and two members were present the quorum being three as per Rule 68(1) was complete. The hearing took place by three members which is noted in the order itself, as extracted above. Thus, observation of the Division Bench of the High Court that quorum was not complete and matter was not heard by three members is not correct.The present is a case where decision by a multimember body is to be taken in the meeting of the Committee as per the statutory Rules. There being no such majority provided for taking a decision, the decision by majority has to be accepted as the opinion of the State Transport Authority.Although, in above two cases, there was concurrence of all the members of Court/Tribunal but all had not signed the order. The present is a case where Chairperson and two members heard the application in meeting dated 16.10.2014 but order was subsequently pronounced on 15.12.2014 and signed by only Chairperson and one member. The third member having been transferred in the meanwhile. As noticed above, there is no pleading in the writ petition as to whether the third member, who was transferred had agreed with the proposed order or did not agree with the decision, which was to be delivered by the State Transport Authority. Had third member agreed, there cannot be any debate in this matter, the issues being covered by judgment of this Court in Ramaswamy Nadar(supra) and judgment of the Privy Council in Gokal Chand Jagan Nath (supra). But there being neither any pleading nor any material to come to the conclusion that the third member has agreed with the opinion, we have proceeded to examine the present case as if, the third member did not agree with the order proposed. We have already noticed the reason for coming to the conclusion that the order issued by the State Transport Authority, signed by the Chairperson and one member is a valid order having been issued with the majority opinion of two out of three, who heard the application on 16.10.2014. Thus, in any view of the matter, no illegality can be attached with the order dated 15.12.2014, which was signed by the Chairperson and one member.26. In view of the foregoing discussion, we are of the opinion that decision dated 15.12.2014 issued with the signatures of Chairperson and one member was a valid decision in spite of the fact that one of the members who was present in the hearing when the meeting took place on 16.10.2014 and had been transferred in the meanwhile did not sign the order. The decision of the State Transport Authority dated 15.12.2014 was fully in accordance with the statutory scheme of the Rules, 1994 and both the learned Single Judge and Division Bench erred in holding the decision as invalid. We, thus, are of the view that judgments of learned Single Judge and Division Bench do not express the correct view of the law.
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Daroga Rai Vs. State of West Bengal | Bhagwati, J.1. The petitioner challenges an order of detention made by the District Magistrate, 24-Paraganas-under subsection (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. The order of detention made on 17th August, 1972 and pursuant to the order of detention the petitioner was arrested on 22nd August, 1972. The grounds of detention served on the petitioner at the tune of his arrest referred only to one incident which was in the following terms:"1. That on 6-6-72 at 02.45 hrs. you and your associates being armed with weapons and ballast broke open wagon No. SB-23416 loaded with rice on line No. 4 at Sealdah Marshalling Yard. On being challenged by duty RPF Patrol party you and your associates attacked them violently, when to save lives and Government properties RPF 6188 Nisith Ranjan Haldar fired 2 rounds in self defence from his rifle and as a result you sustained injuries but you with your associates fled away leaving two bags of rice at the P.O. You were subsequently arrested.Your actions affected services and supplies there then."The formalities required by the provisions of the Act were thereafter complied with within the prescribed time limits and the order of detention was ultimately confirmed by the State Government.2. The first contention urged on behalf of the petitioner against the validity of the order of detention was that the grounds of detention were not communicated to the petitioner as required by Section 8 (1) of the Act, as the petitioner was illiterate and mere service of grounds of detention on him was not sufficient compliance with the requirement of the section. This contention stands completely answered by the supplementary affidavit filed by Shanti Ranjan Aich on behalf of the State Government. Shanti Ranjan Aich was at the material time Sub-Inspector of Police attached to the Sealdah Police Station and in the supplementary affidavit made by him he stated that on 22nd August, 1972 he served "a true copy of the order of detention and a true copy of the grounds of detention together with the vernacular Translation thereof after explaining the contents of the said order of detention and the grounds of detention to the detenu-petitioner in Hindi which is his mother tongue". The record of the case produced before us on behalf of the State Government also showed the endorsement made by Shanti Ranjan Aich recording inter alia the fact that the contents of the grounds of detention were explained to the petitioner in his mother tongue Hindi. There was, therefore, communication of the rounds of detention to the petitioner as required by Section 8 (1) of the Act and this contention must be rejected.3. The petitioner then contended that the grounds of detention supplied to him were vague inasmuch as they did not state the names of the associates who participated with the petitioner in the incident set out in the rounds of detention. But this contention is also futile.It is now well settled by the decision of this Court in D. S. Roy v. State of West Bengal AIR 1972 S. C. 1924 that merely because the names of the associates of the detenu have not been specified in the grounds of detention, they cannot be said to suffer from the vice of vagueness. Jaganmohan Reddy, J., speaking on behalf of the Court, pointed out:"Not only the dates and the time in each of the grounds have been mentioned but the acts of the Petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal."This contention must also, therefore, fail and be rejected. | 0[ds]It is now well settled by the decision of this Court in D. S. Roy v. State of West Bengal AIR 1972 S. C. 1924 that merely because the names of the associates of the detenu have not been specified in the grounds of detention, they cannot be said to suffer from the vice of vagueness. Jaganmohan Reddy, J., speaking on behalf of the Court, pointed out:"Not only the dates and the time in each of the grounds have been mentioned but the acts of the Petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal."This contention must also, therefore, fail and be rejected. | 0 | 727 | 196 | ### Instruction:
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Bhagwati, J.1. The petitioner challenges an order of detention made by the District Magistrate, 24-Paraganas-under subsection (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. The order of detention made on 17th August, 1972 and pursuant to the order of detention the petitioner was arrested on 22nd August, 1972. The grounds of detention served on the petitioner at the tune of his arrest referred only to one incident which was in the following terms:"1. That on 6-6-72 at 02.45 hrs. you and your associates being armed with weapons and ballast broke open wagon No. SB-23416 loaded with rice on line No. 4 at Sealdah Marshalling Yard. On being challenged by duty RPF Patrol party you and your associates attacked them violently, when to save lives and Government properties RPF 6188 Nisith Ranjan Haldar fired 2 rounds in self defence from his rifle and as a result you sustained injuries but you with your associates fled away leaving two bags of rice at the P.O. You were subsequently arrested.Your actions affected services and supplies there then."The formalities required by the provisions of the Act were thereafter complied with within the prescribed time limits and the order of detention was ultimately confirmed by the State Government.2. The first contention urged on behalf of the petitioner against the validity of the order of detention was that the grounds of detention were not communicated to the petitioner as required by Section 8 (1) of the Act, as the petitioner was illiterate and mere service of grounds of detention on him was not sufficient compliance with the requirement of the section. This contention stands completely answered by the supplementary affidavit filed by Shanti Ranjan Aich on behalf of the State Government. Shanti Ranjan Aich was at the material time Sub-Inspector of Police attached to the Sealdah Police Station and in the supplementary affidavit made by him he stated that on 22nd August, 1972 he served "a true copy of the order of detention and a true copy of the grounds of detention together with the vernacular Translation thereof after explaining the contents of the said order of detention and the grounds of detention to the detenu-petitioner in Hindi which is his mother tongue". The record of the case produced before us on behalf of the State Government also showed the endorsement made by Shanti Ranjan Aich recording inter alia the fact that the contents of the grounds of detention were explained to the petitioner in his mother tongue Hindi. There was, therefore, communication of the rounds of detention to the petitioner as required by Section 8 (1) of the Act and this contention must be rejected.3. The petitioner then contended that the grounds of detention supplied to him were vague inasmuch as they did not state the names of the associates who participated with the petitioner in the incident set out in the rounds of detention. But this contention is also futile.It is now well settled by the decision of this Court in D. S. Roy v. State of West Bengal AIR 1972 S. C. 1924 that merely because the names of the associates of the detenu have not been specified in the grounds of detention, they cannot be said to suffer from the vice of vagueness. Jaganmohan Reddy, J., speaking on behalf of the Court, pointed out:"Not only the dates and the time in each of the grounds have been mentioned but the acts of the Petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal."This contention must also, therefore, fail and be rejected.
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It is now well settled by the decision of this Court in D. S. Roy v. State of West Bengal AIR 1972 S. C. 1924 that merely because the names of the associates of the detenu have not been specified in the grounds of detention, they cannot be said to suffer from the vice of vagueness. Jaganmohan Reddy, J., speaking on behalf of the Court, pointed out:"Not only the dates and the time in each of the grounds have been mentioned but the acts of the Petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal."This contention must also, therefore, fail and be rejected.
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Chhedi Lal Yadav and Ors Vs. Hari Kishore Yadav (D) thr. L.Rs. and Ors | was moved after 16 years on 09.08.1999 and was allowed without notice to the Respondents. Eventually, the Additional Collector on 27.12.2000, allowed the restoration of the disputed land in favour of the Appellants.6. A Writ Petition filed by the Respondents was dismissed by the learned, Single Judge on 25.03.2004. A Letters Patent Appeal preferred by the Respondents was, however, allowed. That judgment is in appeal before us at the instance of the Appellants who had been denied the restoration of land. It is obvious from the periods of time mentioned above that even after the Act was passed in 1951, the Appellants filed a petition for restoration of the disputed land on 04.05.1975, i.e., after a period of about 24 years. Thereafter, when the appeal filed by them was dismissed on 23.08.1983, the Appellants applied for restoration on 09.08.1999 after a period of 16 years of such dismissal.7. We find that there is inordinate, unexplained and unjustified delay on the part of the Appellants in firstly, making an application for restoration of land after a period of 24 years after such a right is said to have accrued to them and, then in making an application for restoration after a period of 16 years when the matter was dismissed in default.8. Learned Counsel appearing for the Appellants vehemently submitted that the delay must be overlooked because the Act is a beneficial piece of legislation intended to bring relief to farmers who had been dispossessed during the proscribed period. The reliance was placed on a judgment of this Court in the case of New India Assurance Co. Ltd. v. C. Padma and Anr. reported in (2003) 7 SCC 713 where this Court held that in a motor accident which took place on 18.12.1989, a Claim Petition barred by time but filed on 02.11.1995, after limitation itself was removed from the Statute was maintainable. This Court held that there could be no resort to Article 137 of the Limitation Act, 1963 even though no period of limitation was prescribed. Accordingly, the Court held that the Claim Petition could not be rejected at the threshold on the ground of limitation, after the deletion of Sub-section (3), of Section 166 of the Motor Vehicles Act, 1988 which had provided a period of six months. This view was taken having regard to the purpose of the Statute. We, however, find that the judgment relied on has no application to the present case. It is a settled law where the Statute does not provide for a period of limitation, the provisions of the Statute must be invoked within a reasonable time. In Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn. reasonable time is explained as follows:That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.Thus time must be reckoned reasonably, not only in order to preserve rights and advantages a party possesses, but equally to protect each party from the losses he ought not to suffer. Thus whether an action has been taken within a reasonable time must also be viewed from the point of view of the party who might suffer losses.9. In the instant case, we find that the High Court had observed as follows:The auction sale took place in 1942, the application for restoration of the lands was first made in 1975 and the appeal from it was dismissed for default in 1983. In the meanwhile the disputed lands changed hands twice and were in the possession of the Appellants-writ Petitioners from 1962 and 1986. Such a long settled position could only be up-set for some very compelling reasons and on making out an extremely strong case for restoration of the appeal. There is nothing on record to suggest anything remotely like that. Secondly, the action of the Addl. Collector in restoring the appeal even without any notice to the Appellants-writ Petitioners was clearly illegal and in contravention of Sections 4 & 5 of the Act.The High Court was clearly right in the view it had taken. It is argued on behalf of the Appellants that power of the Additional Collector for restoration of lands could have been exercised suo motu and since no limitation was prescribed for exercise of such power, the delay in this case may be overlooked. This submission presupposes that where the power can be exercised suo motu, such exercise may be undertaken at any time. The submission is directly contrary to a decision of this Court in the case of Joint Collector Ranga Reddy District and Anr. v. D. Narsing Rao and Ors. (Civil Appeal Nos. 325-326 of 2015) and connected matter reported in (2015) 3 SCC 695 where this Court affirmed the view of the Andhra Pradesh High Court. Paragraph 17 of the judgment reads as follows:...that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law.Thus we have no hesitation in rejecting this contention.10. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the Statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights.11. We are of the view that merely because the legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay as observed by this Court in the case of Situ Sahu and Ors. v. State of Jharkhand reported in (2004) 8 SCC 340. | 0[ds]It is obvious from the periods of time mentioned above that even after the Act was passed in 1951, the Appellants filed a petition for restoration of the disputed land on 04.05.1975, i.e., after a period of about 24 years. Thereafter, when the appeal filed by them was dismissed on 23.08.1983, the Appellants applied for restoration on 09.08.1999 after a period of 16 years of such dismissal7. We find that there is inordinate, unexplained and unjustified delay on the part of the Appellants in firstly, making an application for restoration of land after a period of 24 years after such a right is said to have accrued to them and, then in making an application for restoration after a period of 16 years when the matter was dismissed in defaultWe, however, find that the judgment relied on has no application to the present case. It is a settled law where the Statute does not provide for a period of limitation, the provisions of the Statute must be invoked within a reasonable time10. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the Statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights11. We are of the view that merely because the legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay as observed by this Court in the case of Situ Sahu and Ors. v. State of Jharkhand reported in (2004) 8 SCC 340. | 0 | 1,456 | 363 | ### Instruction:
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was moved after 16 years on 09.08.1999 and was allowed without notice to the Respondents. Eventually, the Additional Collector on 27.12.2000, allowed the restoration of the disputed land in favour of the Appellants.6. A Writ Petition filed by the Respondents was dismissed by the learned, Single Judge on 25.03.2004. A Letters Patent Appeal preferred by the Respondents was, however, allowed. That judgment is in appeal before us at the instance of the Appellants who had been denied the restoration of land. It is obvious from the periods of time mentioned above that even after the Act was passed in 1951, the Appellants filed a petition for restoration of the disputed land on 04.05.1975, i.e., after a period of about 24 years. Thereafter, when the appeal filed by them was dismissed on 23.08.1983, the Appellants applied for restoration on 09.08.1999 after a period of 16 years of such dismissal.7. We find that there is inordinate, unexplained and unjustified delay on the part of the Appellants in firstly, making an application for restoration of land after a period of 24 years after such a right is said to have accrued to them and, then in making an application for restoration after a period of 16 years when the matter was dismissed in default.8. Learned Counsel appearing for the Appellants vehemently submitted that the delay must be overlooked because the Act is a beneficial piece of legislation intended to bring relief to farmers who had been dispossessed during the proscribed period. The reliance was placed on a judgment of this Court in the case of New India Assurance Co. Ltd. v. C. Padma and Anr. reported in (2003) 7 SCC 713 where this Court held that in a motor accident which took place on 18.12.1989, a Claim Petition barred by time but filed on 02.11.1995, after limitation itself was removed from the Statute was maintainable. This Court held that there could be no resort to Article 137 of the Limitation Act, 1963 even though no period of limitation was prescribed. Accordingly, the Court held that the Claim Petition could not be rejected at the threshold on the ground of limitation, after the deletion of Sub-section (3), of Section 166 of the Motor Vehicles Act, 1988 which had provided a period of six months. This view was taken having regard to the purpose of the Statute. We, however, find that the judgment relied on has no application to the present case. It is a settled law where the Statute does not provide for a period of limitation, the provisions of the Statute must be invoked within a reasonable time. In Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn. reasonable time is explained as follows:That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.Thus time must be reckoned reasonably, not only in order to preserve rights and advantages a party possesses, but equally to protect each party from the losses he ought not to suffer. Thus whether an action has been taken within a reasonable time must also be viewed from the point of view of the party who might suffer losses.9. In the instant case, we find that the High Court had observed as follows:The auction sale took place in 1942, the application for restoration of the lands was first made in 1975 and the appeal from it was dismissed for default in 1983. In the meanwhile the disputed lands changed hands twice and were in the possession of the Appellants-writ Petitioners from 1962 and 1986. Such a long settled position could only be up-set for some very compelling reasons and on making out an extremely strong case for restoration of the appeal. There is nothing on record to suggest anything remotely like that. Secondly, the action of the Addl. Collector in restoring the appeal even without any notice to the Appellants-writ Petitioners was clearly illegal and in contravention of Sections 4 & 5 of the Act.The High Court was clearly right in the view it had taken. It is argued on behalf of the Appellants that power of the Additional Collector for restoration of lands could have been exercised suo motu and since no limitation was prescribed for exercise of such power, the delay in this case may be overlooked. This submission presupposes that where the power can be exercised suo motu, such exercise may be undertaken at any time. The submission is directly contrary to a decision of this Court in the case of Joint Collector Ranga Reddy District and Anr. v. D. Narsing Rao and Ors. (Civil Appeal Nos. 325-326 of 2015) and connected matter reported in (2015) 3 SCC 695 where this Court affirmed the view of the Andhra Pradesh High Court. Paragraph 17 of the judgment reads as follows:...that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law.Thus we have no hesitation in rejecting this contention.10. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the Statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights.11. We are of the view that merely because the legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay as observed by this Court in the case of Situ Sahu and Ors. v. State of Jharkhand reported in (2004) 8 SCC 340.
### Response:
0
### Explanation:
It is obvious from the periods of time mentioned above that even after the Act was passed in 1951, the Appellants filed a petition for restoration of the disputed land on 04.05.1975, i.e., after a period of about 24 years. Thereafter, when the appeal filed by them was dismissed on 23.08.1983, the Appellants applied for restoration on 09.08.1999 after a period of 16 years of such dismissal7. We find that there is inordinate, unexplained and unjustified delay on the part of the Appellants in firstly, making an application for restoration of land after a period of 24 years after such a right is said to have accrued to them and, then in making an application for restoration after a period of 16 years when the matter was dismissed in defaultWe, however, find that the judgment relied on has no application to the present case. It is a settled law where the Statute does not provide for a period of limitation, the provisions of the Statute must be invoked within a reasonable time10. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the Statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights11. We are of the view that merely because the legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay as observed by this Court in the case of Situ Sahu and Ors. v. State of Jharkhand reported in (2004) 8 SCC 340.
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M/S. NANDHINI DELUXE Vs. M/S. KARNATAKA COOPERATIVE MILK PRODUCERS FEDERATION LTD. REP. BY ITS MANAGING DIRECTOR | Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act. 48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules. 31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods. 32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant. 33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect. | 1[ds]3. Before we proceed further, it is pertinent to mention at this stage that the milk and milk products, which are sold by the respondent under the trade mark of NANDINI, fall under Class 29 and Class 30 as per classification under Schedule IV to the Trade Marks Rules, 2002. On the other hand, various kinds of foodstuffs sold by the appellant in its restaurants also fall under Class 29 and 30 as well as other Classes.We proceed on the presumption that the trade mark NANDHINI, which is registered in the name of the appellant has acquired distinctiveness though the appellant disputes the same. Otherwise also there is no challenge to the registration of this name in favour of the respondent.(A) Respondent started using trade mark in respect of its products, namely, milk and milk products in the year 1985. As against that, the appellant adopted trade mark NANDHINI in respect of its goods in the year 1989.(B) Though, the respondent is a prior user, the appellant also had been using this trade mark NANDHINI for 12-13 years before it applied for registration of these trade marks in respect of its products.(C) The goods of the appellant as well as respondent fall under the same Classes 29 and 30. Notwithstanding the same, the goods of the appellant are different from that of the respondent. Whereas the respondent is producing and selling only milk and milk products the goods of the appellant are fish, meat, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, edible oils and fats, salad dressings, preserves etc. and it has given up its claim qua milk and milk products.(D) Insofar as application for registration of the milk and milk products is concerned, it was not granted by the trade mark registry. In fact, the same was specifically rejected. The appellant was directed to file the affidavit and Form 16 in this behalf to delete the goods milk and milk products which affidavit was filed by the appellant. Further concession is already recorded above.(E) NANDINI/NANDHINI is a generic, it represents the name of Goddess and a cow in Hindu Mythology. It is not an invented or coined word of the respondent.(F) The nature and style of the business of the appellant and the respondent are altogether different. Whereas respondent is a Cooperative Federation of Milk Producers of Karnataka and is producing and selling milk and milk products under the mark NANDINI, the business of the appellant is that of running restaurants and the registration of mark NANDHINI as sought by the appellant is in respect of various foodstuffs sold by it in its restaurants.(G) Though there is a phonetic similarity insofar as the words NANDHINI/NANDINI are concerned, the trade mark with logo adopted by the two parties are altogether different. The manner in which the appellant has written NANDHINI as its mark is totally different from the style adopted by the respondent for its mark NANDINI. Further, the appellant has used and added the word Deluxe and, thus, its mark is NANDHINI DELUXE. It is followed by the words the real spice of life. There is device of lamp with the word NANDHINI. In contrast, the respondent has used only one word, namely, NANDINI which is not prefixed or suffixed by any word. In its mark Cow as a logo is used beneath which the word NANDINI is written, it is encircled by egg shape circle. A bare perusal of the two marks would show that there is hardly any similarity of the appellants mark with that of the respondent when these marks are seen in totality.25. When we examine the matter keeping in mind the aforesaid salient features, it is difficult to sustain the conclusion of the IPAB in its order dated 4th October, 2011 as well in the impugned order of the High Court that the mark adopted by the appellant will cause any confusion in the mind of consumers, what to talk of deception. We do not find that the the two marks are deceptively similar.26. We are of further opinion that the earlier order dated 20th April, 2010 of IPAB approached the subject matter in correct perspective. The test laid down in Polaroid Corporation vs. Polarad Electronics Corporation, 11 287 F.2d 492 (1961) is as follows:The problem of determining how far a valid trademark shall be protected with respect to goods other than those to which its owner has applied it, has long been vexing and does not become easier of solution with the years. Neither of our recent decisions so heavily relied upon by the parties, Harold F. Ritchie, Inc. v. Chesebrough-Ponds, Inc., 2 Cir., 1960, 281 F.2d 755, by plaintiff, and Avon Shoe Co., Inc. v. David Crystal, Inc., 2 Cir., 1960, 279 F.2d 607 by defendant, affords much assistance, since in the Ritchie case there was confusion as to the identical product and the defendant in the Avon case had adopted its mark without knowledge of the plaintiffs prior use, at page 611. Where the products are different, the prior owners chance of success is a function of many variables: the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendants good faith in adopting its own mark, the quality of defendants product, and the sophistication of the buyers. Even this extensive catalogue does not exhaust the possibilities the court may have to take still other variables into account. American Law Institute, Restatement of Torts, 729, 730, 731. Here plaintiffs mark is a strong one and the similarity between the two names is great, but the evidence of actual confusion, when analyzed, is not impressive. The filter seems to be the only case where defendant has sold, but not manufactured, a product serving a function similar to any of plaintiffs, and plaintiffs sales of this item have been highly irregular, varying, e. g., from $2,300 in 1953 to $303,000 in 1955, and $48,000 in 1956.27. This Court in National Sewing Thread Co. Ltd. vs. James Chadwick and Bros., (1953) AIR SC 357 accepted the following principles which are to be applied in such cases:22. The principles of law applicable to such cases are well settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of Section 8 and therefore it should be registered. Moreover in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.28. Applying the aforesaid principles to the instant case, when we find that not only visual appearance of the two marks is different, they even relate to different products. Further, the manner in which they are traded by the appellant and respondent respectively, highlighted above, it is difficult to imagine that an average man of ordinary intelligence would associate the goods of the appellant as that of the respondent.29. One other significant factor which is lost sight of by the IPAB as well as the High Court is that the appellant is operating a restaurant under the trademark NANDHINI and it had applied the trademark in respect of goods like coffee, tea, cocoa, sugar, rice, rapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry, spices, bill books, visiting cards, meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces, etc. which are used in the products/services of restaurant business. The aforesaid items do not belong to Class 29 or 30. Likewise, stationery items used by the appellant in the aid of its restaurant services are relatable to Class 16. In these circumstances, there was hardly any question of confusion or deception.30. Having arrived at the aforesaid conclusion, the reasoning of the High Court that the goods belonging to the appellant and the respondent (though the nature of goods is different) belong to same class and, therefore, it would be impermissible for the appellant to have the registration of the concerned trade mark in its favour, would be meaningless. That apart, there is no such principle of law. On the contrary, this Court in Vishnudas Trading as Vishnudas Kushandas2 has decided otherwise as can be seen from the reading of para 47 of the said judgment:-47. The respondent Company got registration of its brand name Charminar under the broad classification manufactured tobacco. So long such registration remains operative, the respondent Company is entitled to claim exclusive use of the said brand name in respect of articles made of tobacco coming under the said broad classification manufactured tobacco. Precisely for the said reason, when the appellant made application for registration of quiwam and zarda under the same brand name Charminar, such prayer for registration was not allowed. The appellant, therefore, made application for rectification of the registration made in favour of the respondent Company so that the said registration is limited only in respect of the articles being manufactured and marketed by the respondent Company, namely, cigarettes. In our view, if a trader or manufacturer actually trades in or manufactures only one or some of the articles coming under a broad classification and such trader or manufacturer has no bona fide intention to trade in or manufacture other goods or articles which also fall under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under such broad classification and by that process preclude the other traders or manufacturers from getting registration of separate and distinct goods which may also be grouped under the broad classification. If registration has been given generally in respect of all the articles coming under the broad classification and if it is established that the trader or manufacturer who got such registration had not intended to use any other article except the articles being used by such trader or manufacturer, the registration of such trader is liable to be rectified by limiting the ambit of registration and confining such registration to the specific article or articles which really concern the trader or manufacturer enjoying the registration made in his favour. In our view, if rectification in such circumstances is not allowed, the trader or manufacturer by virtue of earlier registration will be permitted to enjoy the mischief of trafficking in trade mark. Looking to the scheme of the registration of trade mark as envisaged in the Trade Marks Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act.48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules.31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods.32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant.33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect. | 1 | 10,877 | 3,185 | ### 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:
Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act. 48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules. 31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods. 32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant. 33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect.
### Response:
1
### Explanation:
Trade Marks Act and the Rules framed thereunder, it appears to us that registration of a trade mark cannot be held to be absolute, perpetual and invariable under all circumstances. Section 12 of the Trade Marks Act prohibits registration of identical or deceptively similar trade marks in respect of goods and description of goods which is identical or deceptively similar to the trade mark already registered. For prohibiting registration under Section 12(1), goods in respect of which subsequent registration is sought for, must be (i) in respect of goods or description of goods being same or similar and covered by earlier registration and (ii) trade mark claimed for such goods must be same or deceptively similar to the trade mark already registered. It may be noted here that under sub-section (3) of Section 12 of the Trade Marks Act, in an appropriate case of honest concurrent use and/or of other special circumstances, same and deceptively similar trade marks may be permitted to another by the Registrar, subject to such conditions as may deem just and proper to the Registrar. It is also to be noted that the expression goods and description of goods appearing in Section 12(1) of the Trade Marks Act indicate that registration may be made in respect of one or more goods or of all goods conforming a general description. The Trade Marks Act has noted distinction between description of goods forming a genus and separate and distinctly identifiable goods under the genus in various other sections e.g. goods of same description in Section 46, Sections 12 and 34 and class of goods in Section 18, Rules 12 and 26 read with Fourth Schedule to the Rules framed under the Act.48. The class mentioned in the Fourth Schedule may subsume or comprise a number of goods or articles which are separately identifiable and vendible and which are not goods of the same description as commonly understood in trade or in common parlance. Manufactured tobacco is a class mentioned in Class 34 of Fourth Schedule of the Rules but within the said class, there are a number of distinctly identifiable goods which are marketed separately and also used differently. In our view, it is not only permissible but it will be only just and proper to register one or more articles under a class or genus if in reality registration only in respect of such articles is intended, by specifically mentioning the names of such articles and by indicating the class under which such article or articles are to be comprised. It is, therefore, permissible to register only cigarette or some other specific products made of manufactured tobacco as mentioned in Class 34 of Fourth Schedule of the Rules. In our view, the contention of Mr Vaidyanathan that in view of change in the language of Section 8 of the Trade Marks Act as compared to Section 5 of the Trade Marks Act, 1940, registration of trade mark is to be made only in respect of class or genus and not in respect of articles of different species under the genus is based on incorrect appreciation of Section 8 of the Trade Marks Act and Fourth Schedule of the Rules.31. We may mention that the aforesaid principle of law while interpreting the provisions of Trade and Merchandise Act, 1958 is equally applicable as it is unaffected by the Trade Marks Act, 1999 inasmuch as the main object underlying the said principle is that the proprietor of a trade mark cannot enjoy monopoly over the entire class of goods and, particularly, when he is not using the said trade mark in respect of certain goods falling under the same class. In this behalf, we may usefully refer to Section 11 of the Act which prohibits the registration of the mark in respect of the similar goods or different goods but the provisions of this Section do not cover the same class of goods.32. The aforesaid discussion leads us to hold that all the ingredients laid down in Section 11(2) of the Act, as explained by the Delhi High Court in Nestle India Ltd., have not been satisfied. We are not persuaded to hold, on the facts of this case, that the appellant has adopted the trade mark to take unfair advantage of the trade mark of the respondent. We also hold that use of NANDHINI by appellant in respect of its different goods would not be detrimental to the purported distinctive character or repute of the trade mark of the respondent. It is to be kept in mind that the appellant had adopted the trade mark in respect of items sold in its restaurants way back in the year 1989 which was soon after the respondent had started using the trade mark NANDINI. There is no document or material produced by the respondent to show that by the year 1989 the respondent had acquired distinctiveness in respect of this trade mark, i.e., within four years of the adoption thereof. It, therefore, appears to be a case of concurrent user of trade mark by the appellant.33. There is some force in the argument of learned counsel for the appellant that IPAB while passing orders dated 4th October, 2011 ignored its earlier order, of a Coordinate Bench, passed on 20th April, 2010. Appeal in which order dated 20th April, 2010 was passed was between the same parties on identical issue. The IPAB had dismissed the said appeal of the respondent and that order had attained finality. Prima facie, this would act as an issue of estoppel between the parties (see the Bhanu Kumar Jain vs. Archana Kumar and Anr., (2005) 1 SCC 787 ; Hope Plantations Ltd. vs. Taluk Land Board, Peermade and Another, (1999) 5 SCC 590 ). However, as we are holding that the impugned orders of the IPAB and High Court are not sustainable in law and have decided these appeals on merits it is not necessary to make any further comments on the aforesaid aspect.
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P. Krishna Menon Vs. The Commissioner Of Income-Tax, Mysore, Travancore-Coch | properly be called the carrying on of a vocation by him. 11. Then the other point to be decided is, whether the payments made by Levy were income received by the appellant from his vocation of teaching Vedanta. A very large number of authorities, both Indian and English, have been pressed upon us in the course of the argument. These cases illustrate the application of the well settled principle that in the case of a voluntary payment, no tax can be levied on it if it had been made for reasons purely personal to the donee and unconnected with his office or vocation while it will be taxable if it was made because of the office or vocation of the donee. We do not consider it profitable to discuss them in this case. Also it seems to us that the present case it too plain to require any authority. The only point is, whether the moneys were received by the appellant by virtue of his vocation. Mr. Sastri contended that the facts showed that the payments were purely personal gifts. He drew our attention to the affidavit of Levy where it is stated "all sums of money paid into his account by me have been gifts to mark my esteem and affection for him and for no other reason". But Levy also there said, "I have had the benefit of his teachings on Vedanta." It is important to remember however that the point is not what the donor thought he was doing but why the donee received it. So Collins M. R. in Herbert v. McQuade, 1902-2 KB 631, referring to Inland Revenue v. Strang, (1878) 1 Tax Cas 207, said at p. 649,"Now that judgment, whether or not the particular facts justified it, is certainly an affirmation of a principle of law that a payment may be liable to income-tax although it is voluntary on the part of the persons who made it, and that the test is whether, from the standpoint of the person who receives it, it accrues to him in virtue of his office; if it does, it does not matter whether it was voluntary or whether it was compulsory on the part of the persons who paid it.That seems to me to be the test; and if we once get to this - that the money has come to or accrued to, a person by virtue of his office - it seems to me that the liability to income-tax is not negatived merely by reason of the fact that there was no legal obligation on the part of the persons who contributed the money to pay it." 12. It is well established that in cases of this kind the real question is, as Rowlatt J. put it in Reed v. Seymour, 1926-1 KB 588, "But is it in the nature of a personal gift or is it a remuneration?", an observation which was quoted with approval by Viscount Cave, L. C. when the case went up to the House of Lords with the addition "If the latter, it is subject to the tax; if the former, it is not": see Seymour v. Reed, 1927 AC 554. We find it impossible to hold in this case that the payments to the appellant had not been made in consideration of the teaching imparted by him. Levy admitted that he had received benefit from the teaching of the appellant. It is plain to us that it was because of the teaching that the gift had been made. It is true that Levy said that he made the gifts to mark his esteem and affection for the appellant. But such emotions and therefore the gifts, were clearly the result of the teaching imparted by the appellant. Mr. Sastri contends that that may be so, but we have no right to follow the successive causes and as a result thereof link the gift with the teaching. An argument of this kind seems to have been advanced in Blakiston v. Cooper, 1909 AC 104 and dealt with by Lord Ashbourne in the following words :"It was suggested that the offerings were made as personal gifts to the vicar as marks of esteem and respect. Such reasons no doubt played their part in obtaining and increasing the amount of the offerings, but I cannot doubt that they were given to the vicar as vicar and that they formed part of the profits accruing by reason of his office." We have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non.The payments were repeated and came with the same regularity as Levys visits to the appellant for receiving instructions in Vedanta. We do not feel impressed by Mr. Sastris contention that the first payment of Rs. 2,41,103-11-3 was too large a sum to be paid as consideration. In any case we are not concerned in this case with that payment. We are concerned with payments which are of much smaller amounts and as to which it has not been said that they were too large to be a consideration for the teaching. And one must not forget that these are cases of voluntary payments and the question of the appraisement of the value of the teaching received in terms of money is not very material. If the first payment was too big to have been paid for the teaching received, it was too big to have been given purely by way of gift. 13. In the view that we take, namely, that the payments with which we are concerned, were income arising from the vocation of the appellant as a teacher of Vedanta, no question of exemption under S. 4(3) (vii) of the Act arises. In order that a payment may be exempted under that Section, it has to be shown that it did not arise from the exercise of a vocation. 1 | 0[ds]8. We find no difficulty in thinking that teaching is a vocation if not a profession. It is plainly so and it is not necessary to discuss the various meanings of the word vocation for the purpose or to cite authorities to support this view. Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is not. It is just as much teaching, and therefore, a vocation, as any other teaching. It is said that in teaching Vedanta the appellant was only practising religion. We are unable to see why teaching of Vedanta as a matter of religion is not carrying on of a vocation. In any case the question does not really arise, for whether the appellant was, in teaching Vedanta, practicing religion, is of course a finding of fact. It may be that Vedanta could be taught as a practice of religion but it could of course also be taught as any other philosophy or school of thought. The statement of case in this case does not contain any finding that in teaching Vedanta the appellant was practising religionWe think that these contentions lack substance.We do not appreciate the significance of saying that in order to become a vocation an activity must be organised. If by that a continuous, or as was said, a systematic activity, is meant, we have to point out that it is well known that a single act may amount to the carrying on of it business or profession.It is unnecessary to discuss this question further as we find no want of system or continuity in the activity of the appellant. He had gathered a large number of disciples around him and was instructing them in Vedanta regularly. Levy came all the way from England at regular intervals to obtain such instructions. All this clearly indicates organisation and system10. Again, it is well established that it is not the motive of the person doing an act which decides whether the act done by him is the carrying on of a business, profession or vocation. If any business, profession or vocation in fact produces an income, that is taxable income and none the less because it was carried on without the motive of producing any income.This, we believe, is too well established on the authorities now to be questioned4. We find it impossible to hold in this case that the payments to the appellant had not been made in consideration of the teaching imparted by him. Levy admitted that he had received benefit from the teaching of the appellant. It is plain to us that it was because of the teaching that the gift had been made. It is true that Levy said that he made the gifts to mark his esteem and affection for the appellant. But such emotions and therefore the gifts, were clearly the result of the teaching imparted by the appellantWe have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non.The payments were repeated and came with the same regularity as Levys visits to the appellant for receiving instructions in Vedanta. We do not feel impressed by Mr. Sastris contention that the first payment of Rs. 2,41,103-11-3 was too large a sum to be paid as consideration. In any case we are not concerned in this case with that payment13. In the view that we take, namely, that the payments with which we are concerned, were income arising from the vocation of the appellant as a teacher of Vedanta, no question of exemption under S. 4(3) (vii) of the Act arises. In order that a payment may be exempted under that Section, it has to be shown that it did not arise from the exercise of a vocation. | 0 | 3,036 | 704 | ### Instruction:
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properly be called the carrying on of a vocation by him. 11. Then the other point to be decided is, whether the payments made by Levy were income received by the appellant from his vocation of teaching Vedanta. A very large number of authorities, both Indian and English, have been pressed upon us in the course of the argument. These cases illustrate the application of the well settled principle that in the case of a voluntary payment, no tax can be levied on it if it had been made for reasons purely personal to the donee and unconnected with his office or vocation while it will be taxable if it was made because of the office or vocation of the donee. We do not consider it profitable to discuss them in this case. Also it seems to us that the present case it too plain to require any authority. The only point is, whether the moneys were received by the appellant by virtue of his vocation. Mr. Sastri contended that the facts showed that the payments were purely personal gifts. He drew our attention to the affidavit of Levy where it is stated "all sums of money paid into his account by me have been gifts to mark my esteem and affection for him and for no other reason". But Levy also there said, "I have had the benefit of his teachings on Vedanta." It is important to remember however that the point is not what the donor thought he was doing but why the donee received it. So Collins M. R. in Herbert v. McQuade, 1902-2 KB 631, referring to Inland Revenue v. Strang, (1878) 1 Tax Cas 207, said at p. 649,"Now that judgment, whether or not the particular facts justified it, is certainly an affirmation of a principle of law that a payment may be liable to income-tax although it is voluntary on the part of the persons who made it, and that the test is whether, from the standpoint of the person who receives it, it accrues to him in virtue of his office; if it does, it does not matter whether it was voluntary or whether it was compulsory on the part of the persons who paid it.That seems to me to be the test; and if we once get to this - that the money has come to or accrued to, a person by virtue of his office - it seems to me that the liability to income-tax is not negatived merely by reason of the fact that there was no legal obligation on the part of the persons who contributed the money to pay it." 12. It is well established that in cases of this kind the real question is, as Rowlatt J. put it in Reed v. Seymour, 1926-1 KB 588, "But is it in the nature of a personal gift or is it a remuneration?", an observation which was quoted with approval by Viscount Cave, L. C. when the case went up to the House of Lords with the addition "If the latter, it is subject to the tax; if the former, it is not": see Seymour v. Reed, 1927 AC 554. We find it impossible to hold in this case that the payments to the appellant had not been made in consideration of the teaching imparted by him. Levy admitted that he had received benefit from the teaching of the appellant. It is plain to us that it was because of the teaching that the gift had been made. It is true that Levy said that he made the gifts to mark his esteem and affection for the appellant. But such emotions and therefore the gifts, were clearly the result of the teaching imparted by the appellant. Mr. Sastri contends that that may be so, but we have no right to follow the successive causes and as a result thereof link the gift with the teaching. An argument of this kind seems to have been advanced in Blakiston v. Cooper, 1909 AC 104 and dealt with by Lord Ashbourne in the following words :"It was suggested that the offerings were made as personal gifts to the vicar as marks of esteem and respect. Such reasons no doubt played their part in obtaining and increasing the amount of the offerings, but I cannot doubt that they were given to the vicar as vicar and that they formed part of the profits accruing by reason of his office." We have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non.The payments were repeated and came with the same regularity as Levys visits to the appellant for receiving instructions in Vedanta. We do not feel impressed by Mr. Sastris contention that the first payment of Rs. 2,41,103-11-3 was too large a sum to be paid as consideration. In any case we are not concerned in this case with that payment. We are concerned with payments which are of much smaller amounts and as to which it has not been said that they were too large to be a consideration for the teaching. And one must not forget that these are cases of voluntary payments and the question of the appraisement of the value of the teaching received in terms of money is not very material. If the first payment was too big to have been paid for the teaching received, it was too big to have been given purely by way of gift. 13. In the view that we take, namely, that the payments with which we are concerned, were income arising from the vocation of the appellant as a teacher of Vedanta, no question of exemption under S. 4(3) (vii) of the Act arises. In order that a payment may be exempted under that Section, it has to be shown that it did not arise from the exercise of a vocation. 1
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8. We find no difficulty in thinking that teaching is a vocation if not a profession. It is plainly so and it is not necessary to discuss the various meanings of the word vocation for the purpose or to cite authorities to support this view. Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is not. It is just as much teaching, and therefore, a vocation, as any other teaching. It is said that in teaching Vedanta the appellant was only practising religion. We are unable to see why teaching of Vedanta as a matter of religion is not carrying on of a vocation. In any case the question does not really arise, for whether the appellant was, in teaching Vedanta, practicing religion, is of course a finding of fact. It may be that Vedanta could be taught as a practice of religion but it could of course also be taught as any other philosophy or school of thought. The statement of case in this case does not contain any finding that in teaching Vedanta the appellant was practising religionWe think that these contentions lack substance.We do not appreciate the significance of saying that in order to become a vocation an activity must be organised. If by that a continuous, or as was said, a systematic activity, is meant, we have to point out that it is well known that a single act may amount to the carrying on of it business or profession.It is unnecessary to discuss this question further as we find no want of system or continuity in the activity of the appellant. He had gathered a large number of disciples around him and was instructing them in Vedanta regularly. Levy came all the way from England at regular intervals to obtain such instructions. All this clearly indicates organisation and system10. Again, it is well established that it is not the motive of the person doing an act which decides whether the act done by him is the carrying on of a business, profession or vocation. If any business, profession or vocation in fact produces an income, that is taxable income and none the less because it was carried on without the motive of producing any income.This, we believe, is too well established on the authorities now to be questioned4. We find it impossible to hold in this case that the payments to the appellant had not been made in consideration of the teaching imparted by him. Levy admitted that he had received benefit from the teaching of the appellant. It is plain to us that it was because of the teaching that the gift had been made. It is true that Levy said that he made the gifts to mark his esteem and affection for the appellant. But such emotions and therefore the gifts, were clearly the result of the teaching imparted by the appellantWe have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non.The payments were repeated and came with the same regularity as Levys visits to the appellant for receiving instructions in Vedanta. We do not feel impressed by Mr. Sastris contention that the first payment of Rs. 2,41,103-11-3 was too large a sum to be paid as consideration. In any case we are not concerned in this case with that payment13. In the view that we take, namely, that the payments with which we are concerned, were income arising from the vocation of the appellant as a teacher of Vedanta, no question of exemption under S. 4(3) (vii) of the Act arises. In order that a payment may be exempted under that Section, it has to be shown that it did not arise from the exercise of a vocation.
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Rikhu Dev, Chela Bawa Harjug Dass Vs. Som Dass (Deceased) Through His Chela Shiamdass | appellant was entitled to be in possession of the properties. As already stated the contention of the defendant was that though the properties belonged to the Dera, he was its lawfully appointed mahant and that the appellant had no right to recover possession of the property of the Dera. When Som Dass died, the interest which was the subject matter of the suit, devolved upon Shiam Das as he was elected to be the Mahant of the Dera and the appeal could be continued under Q. 22, r. 10, of the Civil Procedure Code against the person upon whom the interest had devolved.6. Order 22, rule 10 reads:"R. 10(1) In other cases of an assignment, creation or devolution of any interest during the pendency of suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.(2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."This rule is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the Court. When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, rule 10 and not rule 3 or 4, whether the devolution takes place as a consequence of death or for any other reason. Order 22, rule 10, is not confined to devolution of interest of a party by death, it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office. In such a case the successor to the head of the mutt or to the manager of the temple may be substituted as a party under this rule. The word interest which is mentioned in this rule means interest in the property i.e., the subject matter of the suit and the interest is the interest of the person who was the party to the suit.7. It was, however, contended on behalf of the respondent that there was no devolution of the interest in the subject matter of the suit on the death of Som Dass, since there was no certainty as to the person who would be elected as mahant to succeed him. The argument was that it was uncertain on the death of Som Dass as to who would become the mahant by election, that it was only when a person succeeded to the mahantship on the death of a previous mahant by virtue of law or custom that there would be devolution of interest in the subject matter of the suit and, therefore, Order 22, rule 10, would not be attracted. We see no force in this argument. We are of the view that devolution of the interest in the subject matter of the suit took place when Shiam Dass was elected as mahant of the Dera after the death of Som Dass.Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera. Som Dass contended that he was lawfully appointed as mahant of the Dera. He never set up any claim which was adverse to the Dera or its properties. The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant. In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant. The fact that it was after Som Dass died that Shiam Dass was elected to be the mahant of the Dera can make no difference when we are dealing with the question whether the interest in the subject matter of the suit devolved upon him. The subject matter of the suit was t he interest of Som Dass in the Dera and its properties and it devolved upon shiam Dass by virtue of his election as mahant subsequent to the death of Som Dass. And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Shiam Dass, Order 22, rule 10 will apply(1). In Thirumalai v. Arunachella (2) the Court held that a succeeding trustee of a trustee who filed a suit and thereafter died during its pendency was not legal representative of the predecessor in office. The Court said that where some of the trustees die or retire during the pendency of a suit and new persons are elected to fill their place, it is a case of devolution of interest during the pendency of a suit and the elected persons can be added as parties under Order 22, rule 10 notwithstanding that the period of limitation for impleading them had expired.8. In Roshan Lal v. Kapur Chand the Court took the view that newly appointed trustees are not legal representatives of the trustees who had filed the suit and thereafter died during the pendency of the suit, that they can be added as parties under Order 22, rule 10 notwithstanding the fact that the period of limitation for an application to impleaded them under Order 22, rule 3 had elapsed. The Court said (at p. 384):"Such an application is obviously not an application under O. 22, R. 3 Civil Procedure Code."9. We also see no reason why the High Court should not have granted leave to the appellant to prosecute the appeal.10. | 1[ds]We do not think that the view of the High Court was correct. The suit was filed on the basis that the appellant as the lawfully appointed mahant was entitled to manage the properties of the Dera at Landeke, that the defendant was unlawfully claiming to be the mahant of the Dera and entitled to manage the properties of the D era, and that the appellant was entitled to be in possession of the properties. As already stated the contention of the defendant was that though the properties belonged to the Dera, he was its lawfully appointed mahant and that the appellant had no right to recover possession of the property of the Dera. When Som Dass died, the interest which was the subject matter of the suit, devolved upon Shiam Das as he was elected to be the Mahant of the Dera and the appeal could be continued under Q. 22, r. 10, of the Civil Procedure Code against the person upon whom the interest hadsee no force in this argument. We are of the view that devolution of the interest in the subject matter of the suit took place when Shiam Dass was elected as mahant of the Dera after the death of Som Dass.Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera. Som Dass contended that he was lawfully appointed as mahant of the Dera. He never set up any claim which was adverse to the Dera or its properties. The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant. In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant. The fact that it was after Som Dass died that Shiam Dass was elected to be the mahant of the Dera can make no difference when we are dealing with the question whether the interest in the subject matter of the suit devolved upon him. The subject matter of the suit was t he interest of Som Dass in the Dera and its properties and it devolved upon shiam Dass by virtue of his election as mahant subsequent to the death of Som Dass. And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Shiam Dass, Order 22, rule 10 willalso see no reason why the High Court should not have granted leave to the appellant to prosecute the appeal. | 1 | 1,669 | 483 | ### Instruction:
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appellant was entitled to be in possession of the properties. As already stated the contention of the defendant was that though the properties belonged to the Dera, he was its lawfully appointed mahant and that the appellant had no right to recover possession of the property of the Dera. When Som Dass died, the interest which was the subject matter of the suit, devolved upon Shiam Das as he was elected to be the Mahant of the Dera and the appeal could be continued under Q. 22, r. 10, of the Civil Procedure Code against the person upon whom the interest had devolved.6. Order 22, rule 10 reads:"R. 10(1) In other cases of an assignment, creation or devolution of any interest during the pendency of suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.(2) The attachment of a decree pending an appeal there from shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)."This rule is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the Court. When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, rule 10 and not rule 3 or 4, whether the devolution takes place as a consequence of death or for any other reason. Order 22, rule 10, is not confined to devolution of interest of a party by death, it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office. In such a case the successor to the head of the mutt or to the manager of the temple may be substituted as a party under this rule. The word interest which is mentioned in this rule means interest in the property i.e., the subject matter of the suit and the interest is the interest of the person who was the party to the suit.7. It was, however, contended on behalf of the respondent that there was no devolution of the interest in the subject matter of the suit on the death of Som Dass, since there was no certainty as to the person who would be elected as mahant to succeed him. The argument was that it was uncertain on the death of Som Dass as to who would become the mahant by election, that it was only when a person succeeded to the mahantship on the death of a previous mahant by virtue of law or custom that there would be devolution of interest in the subject matter of the suit and, therefore, Order 22, rule 10, would not be attracted. We see no force in this argument. We are of the view that devolution of the interest in the subject matter of the suit took place when Shiam Dass was elected as mahant of the Dera after the death of Som Dass.Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera. Som Dass contended that he was lawfully appointed as mahant of the Dera. He never set up any claim which was adverse to the Dera or its properties. The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant. In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant. The fact that it was after Som Dass died that Shiam Dass was elected to be the mahant of the Dera can make no difference when we are dealing with the question whether the interest in the subject matter of the suit devolved upon him. The subject matter of the suit was t he interest of Som Dass in the Dera and its properties and it devolved upon shiam Dass by virtue of his election as mahant subsequent to the death of Som Dass. And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Shiam Dass, Order 22, rule 10 will apply(1). In Thirumalai v. Arunachella (2) the Court held that a succeeding trustee of a trustee who filed a suit and thereafter died during its pendency was not legal representative of the predecessor in office. The Court said that where some of the trustees die or retire during the pendency of a suit and new persons are elected to fill their place, it is a case of devolution of interest during the pendency of a suit and the elected persons can be added as parties under Order 22, rule 10 notwithstanding that the period of limitation for impleading them had expired.8. In Roshan Lal v. Kapur Chand the Court took the view that newly appointed trustees are not legal representatives of the trustees who had filed the suit and thereafter died during the pendency of the suit, that they can be added as parties under Order 22, rule 10 notwithstanding the fact that the period of limitation for an application to impleaded them under Order 22, rule 3 had elapsed. The Court said (at p. 384):"Such an application is obviously not an application under O. 22, R. 3 Civil Procedure Code."9. We also see no reason why the High Court should not have granted leave to the appellant to prosecute the appeal.10.
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We do not think that the view of the High Court was correct. The suit was filed on the basis that the appellant as the lawfully appointed mahant was entitled to manage the properties of the Dera at Landeke, that the defendant was unlawfully claiming to be the mahant of the Dera and entitled to manage the properties of the D era, and that the appellant was entitled to be in possession of the properties. As already stated the contention of the defendant was that though the properties belonged to the Dera, he was its lawfully appointed mahant and that the appellant had no right to recover possession of the property of the Dera. When Som Dass died, the interest which was the subject matter of the suit, devolved upon Shiam Das as he was elected to be the Mahant of the Dera and the appeal could be continued under Q. 22, r. 10, of the Civil Procedure Code against the person upon whom the interest hadsee no force in this argument. We are of the view that devolution of the interest in the subject matter of the suit took place when Shiam Dass was elected as mahant of the Dera after the death of Som Dass.Som Dass was sued in his capacity as a person who claimed (though illegally according to the appellant) as mahant of the Dera. Som Dass contended that he was lawfully appointed as mahant of the Dera. He never set up any claim which was adverse to the Dera or its properties. The suit against Som Dass was not in his personal capacity but in his capacity as de facto mahant. In other words, the suit was for possession and management of the Dera and the properties appertaining to it by the appellant purporting to be the de jure mahant against Som Dass as de facto mahant. The fact that it was after Som Dass died that Shiam Dass was elected to be the mahant of the Dera can make no difference when we are dealing with the question whether the interest in the subject matter of the suit devolved upon him. The subject matter of the suit was t he interest of Som Dass in the Dera and its properties and it devolved upon shiam Dass by virtue of his election as mahant subsequent to the death of Som Dass. And, as it was in a representative capacity that Som Dass was sued and as it was in the same representative capacity that the appeal was sought to be continued against Shiam Dass, Order 22, rule 10 willalso see no reason why the High Court should not have granted leave to the appellant to prosecute the appeal.
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New India Assurance Co.Ltd Vs. Yadu Sambhaji More | to be an accident arising out of the use of a motor vehicle. Paragraph 4 of the judgment reads as under: "4. Shri G.L. Sanghi, the learned Counsel appearing for the petitioners, has urged that in the instant case, it cannot be said that the explosion and fire in the petrol tanker which occurred at about 7.15 A.M., i.e., nearly four and half hours after the collision involving the petrol tanker and the other truck, was an accident arising out of the use of a motor vehicle and therefore, the claim petition filed by the respondent could not be entertained under Section 92-A of the Act. Shri Sanghi has made a three-fold submission in this regard. In the first place, he has submitted that the petrol tanker was not a motor vehicle as defined in Section 2(18) of the Act at the time when the explosion and fire took place because at that time the petrol tanker was lying turtle and was not capable of movement on the road. The second submission of Shri Sanghi is that since before the explosion and fire the petrol tanker was lying immobile it could not be said that the petrol tanker, even if it be assumed that it was a motor vehicle, was in use as a motor vehicle at the time of the explosion and fire. Thirdly, it has been submitted by Shri Sanghi that even if it is found that the petrol tanker was in use as a motor vehicle at the time of the explosion and fire, there was no causal relationship between the collision which took place between the petrol tanker and the truck at about 3 A.M. and the explosion and fire in the petrol tanker which took place about four and half hours later and it cannot, therefore, be said that explosion and fire in the petrol tanker was an accident arising out of the use of a motor vehicle." 14. After having considered each of the 3 limbs of Mr. Sanghis arguments and having rejected all of them, the Court, in paragraph 37 of the judgment, held and observed as follows: "37. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on the sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker No. MKL 7461." 15. We have examined the evidences of the OWs adduced before the Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the driver of the ill-fated petrol tanker who was examined as OW2. We have also gone through the judgment of the Tribunal. In the evidences of the OWs, there was no new material fact that wasnt already before this Court in Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite party, no new points were raised before the Claims Tribunal, that can be said to have not been raised before this Court in Shivaji Dayanu Patil. The High Court was, therefore, perfectly justified in observing in paragraph 26 of the judgment coming under appeal as follows: "... But whether the vehicle was in use or not was a question before the Supreme Court and even after evidence that aspect has not changed. Time at which the accident occurred, viz. catching the fire by the petrol has remained the same. The circumstances preceding this particular point have also remained the same. The manner in which the petrol tanker came near the spot and how it was hit by a vehicle or truck coming from opposite direction also remained the same even after evidence and therefore when facts which were before the Supreme Court have not at all changed inspite of the full trial and evidence, the judgment of the Supreme Court has to be accepted and taken as a concluded judgment so far as the issue as to whether the vehicle was "in use" or "arising out of the use of the motor vehicle", fully and concluding. Secondly, questions before the Supreme Court was about the interpretation of the words "arising out of use of motor vehicle". The situation namely occurring explosion to the petrol tanker has not changed so far as this particular aspect is concerned...." 16. In light of the discussions made above, it must be held that in the facts and circumstances of the present case, The issue framed by the High Court is answered accordingly. The decision rendered in Shivaji Dayanu Patil was completely binding on the Claims Tribunal and it was not open to the Claims Tribunal to come to any finding inconsistent with the aforesaid decision of this Court. ? | 0[ds]15. We have examined the evidences of the OWs adduced before the Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the driver of the ill-fated petrol tanker who was examined as OW2. We have also gone through the judgment of the Tribunal. In the evidences of the OWs, there was no new material fact that wasnt already before this Court in Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite party, no new points were raised before the Claims Tribunal, that can be said to have not been raised before this Court in Shivaji Dayanu Patil. The High Court was, therefore, perfectly justified in observing in paragraph 26 of the judgment coming under appeal asBut whether the vehicle was in use or not was a question before the Supreme Court and even after evidence that aspect has not changed. Time at which the accident occurred, viz. catching the fire by the petrol has remained the same. The circumstances preceding this particular point have also remained the same. The manner in which the petrol tanker came near the spot and how it was hit by a vehicle or truck coming from opposite direction also remained the same even after evidence and therefore when facts which were before the Supreme Court have not at all changed inspite of the full trial and evidence, the judgment of the Supreme Court has to be accepted and taken as a concluded judgment so far as the issue as to whether the vehicle was "in use" or "arising out of the use of the motor vehicle", fully and concluding. Secondly, questions before the Supreme Court was about the interpretation of the words "arising out of use of motor vehicle". The situation namely occurring explosion to the petrol tanker has not changed so far as this particular aspect isdecision rendered in Shivaji Dayanu Patil was completely binding on the Claims Tribunal and it was not open to the Claims Tribunal to come to any finding inconsistent with the aforesaid decision of this Court. | 0 | 3,620 | 391 | ### 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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to be an accident arising out of the use of a motor vehicle. Paragraph 4 of the judgment reads as under: "4. Shri G.L. Sanghi, the learned Counsel appearing for the petitioners, has urged that in the instant case, it cannot be said that the explosion and fire in the petrol tanker which occurred at about 7.15 A.M., i.e., nearly four and half hours after the collision involving the petrol tanker and the other truck, was an accident arising out of the use of a motor vehicle and therefore, the claim petition filed by the respondent could not be entertained under Section 92-A of the Act. Shri Sanghi has made a three-fold submission in this regard. In the first place, he has submitted that the petrol tanker was not a motor vehicle as defined in Section 2(18) of the Act at the time when the explosion and fire took place because at that time the petrol tanker was lying turtle and was not capable of movement on the road. The second submission of Shri Sanghi is that since before the explosion and fire the petrol tanker was lying immobile it could not be said that the petrol tanker, even if it be assumed that it was a motor vehicle, was in use as a motor vehicle at the time of the explosion and fire. Thirdly, it has been submitted by Shri Sanghi that even if it is found that the petrol tanker was in use as a motor vehicle at the time of the explosion and fire, there was no causal relationship between the collision which took place between the petrol tanker and the truck at about 3 A.M. and the explosion and fire in the petrol tanker which took place about four and half hours later and it cannot, therefore, be said that explosion and fire in the petrol tanker was an accident arising out of the use of a motor vehicle." 14. After having considered each of the 3 limbs of Mr. Sanghis arguments and having rejected all of them, the Court, in paragraph 37 of the judgment, held and observed as follows: "37. Was the accident involving explosion and fire in the petrol tanker connected with the use of tanker as a motor vehicle? In our view, in the facts and circumstances of the present case, this question must be answered in the affirmative. The High Court has found that the tanker in question was carrying petrol which is a highly combustible and volatile material and after the collision with the other motor vehicle the tanker had fallen on one of its sides on the sloping ground resulting in escape of highly inflammable petrol and that there was grave risk of explosion and fire from the petrol coming out of the tanker. In the light of the aforesaid circumstances the learned Judges of the High Court have rightly concluded that the collision between the tanker and the other vehicle which had occurred earlier and the escape of petrol from the tanker which ultimately resulted in the explosion and fire were not unconnected but related events and merely because there was interval of about four to four and half hours between the said collision and the explosion and fire in the tanker, it cannot be necessarily inferred that there was no causal relation between explosion and fire. In the circumstances, it must be held that the explosion and fire resulting in the injuries which led to the death of Deepak Uttam More was due to an accident arising out of the use of the motor vehicle viz. the petrol tanker No. MKL 7461." 15. We have examined the evidences of the OWs adduced before the Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the driver of the ill-fated petrol tanker who was examined as OW2. We have also gone through the judgment of the Tribunal. In the evidences of the OWs, there was no new material fact that wasnt already before this Court in Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite party, no new points were raised before the Claims Tribunal, that can be said to have not been raised before this Court in Shivaji Dayanu Patil. The High Court was, therefore, perfectly justified in observing in paragraph 26 of the judgment coming under appeal as follows: "... But whether the vehicle was in use or not was a question before the Supreme Court and even after evidence that aspect has not changed. Time at which the accident occurred, viz. catching the fire by the petrol has remained the same. The circumstances preceding this particular point have also remained the same. The manner in which the petrol tanker came near the spot and how it was hit by a vehicle or truck coming from opposite direction also remained the same even after evidence and therefore when facts which were before the Supreme Court have not at all changed inspite of the full trial and evidence, the judgment of the Supreme Court has to be accepted and taken as a concluded judgment so far as the issue as to whether the vehicle was "in use" or "arising out of the use of the motor vehicle", fully and concluding. Secondly, questions before the Supreme Court was about the interpretation of the words "arising out of use of motor vehicle". The situation namely occurring explosion to the petrol tanker has not changed so far as this particular aspect is concerned...." 16. In light of the discussions made above, it must be held that in the facts and circumstances of the present case, The issue framed by the High Court is answered accordingly. The decision rendered in Shivaji Dayanu Patil was completely binding on the Claims Tribunal and it was not open to the Claims Tribunal to come to any finding inconsistent with the aforesaid decision of this Court. ?
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15. We have examined the evidences of the OWs adduced before the Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the driver of the ill-fated petrol tanker who was examined as OW2. We have also gone through the judgment of the Tribunal. In the evidences of the OWs, there was no new material fact that wasnt already before this Court in Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite party, no new points were raised before the Claims Tribunal, that can be said to have not been raised before this Court in Shivaji Dayanu Patil. The High Court was, therefore, perfectly justified in observing in paragraph 26 of the judgment coming under appeal asBut whether the vehicle was in use or not was a question before the Supreme Court and even after evidence that aspect has not changed. Time at which the accident occurred, viz. catching the fire by the petrol has remained the same. The circumstances preceding this particular point have also remained the same. The manner in which the petrol tanker came near the spot and how it was hit by a vehicle or truck coming from opposite direction also remained the same even after evidence and therefore when facts which were before the Supreme Court have not at all changed inspite of the full trial and evidence, the judgment of the Supreme Court has to be accepted and taken as a concluded judgment so far as the issue as to whether the vehicle was "in use" or "arising out of the use of the motor vehicle", fully and concluding. Secondly, questions before the Supreme Court was about the interpretation of the words "arising out of use of motor vehicle". The situation namely occurring explosion to the petrol tanker has not changed so far as this particular aspect isdecision rendered in Shivaji Dayanu Patil was completely binding on the Claims Tribunal and it was not open to the Claims Tribunal to come to any finding inconsistent with the aforesaid decision of this Court.
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Charan Lal Sahu Vs. Nandkishore Bhatt & Ors | but is a creature of statute or special law and must be subject to the limitations imposed by it. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency l952 SCR 218 = (AIR 1952 SC 64 ) it was pointed out that strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.4. On behalf of the appellant the case of K. Kamaraja Nadar v Kunju Thevar, 1959 SCR 583 = (AIR 1958 SC 687 ) has been relied upon in support of the submission that the provisions of Section 117 of the Act are directory and not mandatory in their character. An examination of this decision does not support this contention of the appellant. That was a case under the unamended S. 117 of the Act under which the petitioner was required to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. The petitioner therein had deposited Rs. 1000/- but had not mentioned the complete head of account in the Government Treasury receipt nor was the deposit made in favour of the Secretary to the Election Commission as laid down in the aforesaid section. The Election Commission discussed this defect and left the question to the Tribunal to decide after hearing the parties whether the defect could be treated as fatal or one that could be cured by fresh deposit or otherwise so as to secure the costs of the candidate if eventually awarded to him The Tribunal held that there was no defect in the matter of the head of account and was further of opinion that non-mention of the fact that the deposit was made in favour of the Secretary to the Election Commission was immaterial in that it was taken to have been made in favour of the Election Commission at whose disposal the fund was placed, and accordingly there was sufficient compliance with the requirements of S. 117 of the Act. In that case this Court after examining in detail the procedure relating to the filing of the election petition observed at p. 606 :"It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of Section 117 and would involve a dismissal of the petition under Section 85 or Section 90 (3). The above illustration is sufficient to demonstrate that the words in favour of the Secretary to the Election Commission" used in Section 117 are directory and not mandatory in their character. What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else."This decision, therefore, cannot come to the rescue of a petitioner who has failed to deposit the security as required under Section 117 of the Act or has paid less than the amount specified therein. The decision in Lalaram v. -The Supreme Court of India AIR 1967 SC 847 has no relevance to the matter in issue because as pointed out by the High Court that case relates to security being furnished for filing a review petition under the Supreme Court Rules, which, stands on a different footing.5. The argument of the appellants advocate that in view of the marginal note to Section 86 election petition can only be dismissed after the trial has commenced by the issue of a notice to the respondent is equally without substance. Amended S. 86 apart from sub-sec (1) provides for several matters in sub-sections (2) to (7) such as for reference of the election petition or election petitions, where there is more than one in respect of the same election, to a Judge, the ordering of security for costs in case of the application by a candidate who is not already a respondent being made a respondent, the permission to amend or amplify particulars of an corrupt practice alleged in the petition, the continuance of the trial of the election petition from day to day and its expeditious trial to be concluded as far as possible within six months from the presentation of the petition to the High Court. The reference to Trial is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent. The marginal note of Section 36, namely, "Trial of election petitions can not indicate that under sub-sec. (l) of Section 86 an election petition cannot be dismissed for non-compliance with the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evident from sub-s. (1) of Section 86, the marginal note cannot be read to control that power. | 0[ds]Presentation of the petition under the repealed S. 81, beyond the period prescribed for its presentation could be condoned by the Election Commission in its discretion under the proviso to the repealed S. 85 of the Act, but there is nothing in Section 85 which permits the Election Commission to condone the non-compliance with the provisions of Section 117. Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it under S. 85 for non-compliance with the requirements of Ss. 81, 83 and 117, it has to appoint an Election Tribunal for the trial of the petition. The trial by the Tribunal therefore is only after compliance with the mandatory provisions prescribed in Sections 81, 83 and 117 so that the trial is unrelated to the non-compliance by the petitioner with the requirements of Section 117. After the amendment, the jurisdiction of both the Election Commission and the Tribunal in respect of election disputes has been abolished and the High Courts of respective States have been vested with the jurisdiction in this regard. But the conferment of jurisdiction to entertain try and determine an election petition has not in any was materially affected the position stated by us, as will be presentlyare unable to appreciate how the repealed Section 85 of the Act furthers the submission of the petitioner or has any relevance. It is apparent that prior to repeal by Act 47 of 1966, Section 81 provided for the presentation of the election petition by any candidate aggrieved by the result of the election to the Election Commission; Section 83 prescribed what the contents of the petition shouldexamination of this decision does not support this contention of the appellant. That was a case under the unamended S. 117 of the Act under which the petitioner was required to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of thedecision, therefore, cannot come to the rescue of a petitioner who has failed to deposit the security as required under Section 117 of the Act or has paid less than the amount specified therein. The decision in Lalaram v.The Supreme Court of India AIR 1967 SC 847 has no relevance to the matter in issue because as pointed out by the High Court that case relates to security being furnished for filing a review petition under the Supreme Court Rules, which, stands on a different footing.5. The argument of the appellants advocate that in view of the marginal note to Section 86 election petition can only be dismissed after the trial has commenced by the issue of a notice to the respondent is equally without substance. Amended S. 86 apart from(1) provides for several matters in(2) to (7) such as for reference of the election petition or election petitions, where there is more than one in respect of the same election, to a Judge, the ordering of security for costs in case of the application by a candidate who is not already a respondent being made a respondent, the permission to amend or amplify particulars of an corrupt practice alleged in the petition, the continuance of the trial of the election petition from day to day and its expeditious trial to be concluded as far as possible within six months from the presentation of the petition to the High Court. The reference to Trial is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent. The marginal note of Section 36, namely, "Trial of election petitions can not indicate that under(l) of Section 86 an election petition cannot be dismissed forwith the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evident from(1) of Section 86, the marginal note cannot be read to control that power. | 0 | 2,150 | 769 | ### 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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but is a creature of statute or special law and must be subject to the limitations imposed by it. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency l952 SCR 218 = (AIR 1952 SC 64 ) it was pointed out that strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.4. On behalf of the appellant the case of K. Kamaraja Nadar v Kunju Thevar, 1959 SCR 583 = (AIR 1958 SC 687 ) has been relied upon in support of the submission that the provisions of Section 117 of the Act are directory and not mandatory in their character. An examination of this decision does not support this contention of the appellant. That was a case under the unamended S. 117 of the Act under which the petitioner was required to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. The petitioner therein had deposited Rs. 1000/- but had not mentioned the complete head of account in the Government Treasury receipt nor was the deposit made in favour of the Secretary to the Election Commission as laid down in the aforesaid section. The Election Commission discussed this defect and left the question to the Tribunal to decide after hearing the parties whether the defect could be treated as fatal or one that could be cured by fresh deposit or otherwise so as to secure the costs of the candidate if eventually awarded to him The Tribunal held that there was no defect in the matter of the head of account and was further of opinion that non-mention of the fact that the deposit was made in favour of the Secretary to the Election Commission was immaterial in that it was taken to have been made in favour of the Election Commission at whose disposal the fund was placed, and accordingly there was sufficient compliance with the requirements of S. 117 of the Act. In that case this Court after examining in detail the procedure relating to the filing of the election petition observed at p. 606 :"It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of Section 117 and would involve a dismissal of the petition under Section 85 or Section 90 (3). The above illustration is sufficient to demonstrate that the words in favour of the Secretary to the Election Commission" used in Section 117 are directory and not mandatory in their character. What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else."This decision, therefore, cannot come to the rescue of a petitioner who has failed to deposit the security as required under Section 117 of the Act or has paid less than the amount specified therein. The decision in Lalaram v. -The Supreme Court of India AIR 1967 SC 847 has no relevance to the matter in issue because as pointed out by the High Court that case relates to security being furnished for filing a review petition under the Supreme Court Rules, which, stands on a different footing.5. The argument of the appellants advocate that in view of the marginal note to Section 86 election petition can only be dismissed after the trial has commenced by the issue of a notice to the respondent is equally without substance. Amended S. 86 apart from sub-sec (1) provides for several matters in sub-sections (2) to (7) such as for reference of the election petition or election petitions, where there is more than one in respect of the same election, to a Judge, the ordering of security for costs in case of the application by a candidate who is not already a respondent being made a respondent, the permission to amend or amplify particulars of an corrupt practice alleged in the petition, the continuance of the trial of the election petition from day to day and its expeditious trial to be concluded as far as possible within six months from the presentation of the petition to the High Court. The reference to Trial is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent. The marginal note of Section 36, namely, "Trial of election petitions can not indicate that under sub-sec. (l) of Section 86 an election petition cannot be dismissed for non-compliance with the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evident from sub-s. (1) of Section 86, the marginal note cannot be read to control that power.
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### Explanation:
Presentation of the petition under the repealed S. 81, beyond the period prescribed for its presentation could be condoned by the Election Commission in its discretion under the proviso to the repealed S. 85 of the Act, but there is nothing in Section 85 which permits the Election Commission to condone the non-compliance with the provisions of Section 117. Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it under S. 85 for non-compliance with the requirements of Ss. 81, 83 and 117, it has to appoint an Election Tribunal for the trial of the petition. The trial by the Tribunal therefore is only after compliance with the mandatory provisions prescribed in Sections 81, 83 and 117 so that the trial is unrelated to the non-compliance by the petitioner with the requirements of Section 117. After the amendment, the jurisdiction of both the Election Commission and the Tribunal in respect of election disputes has been abolished and the High Courts of respective States have been vested with the jurisdiction in this regard. But the conferment of jurisdiction to entertain try and determine an election petition has not in any was materially affected the position stated by us, as will be presentlyare unable to appreciate how the repealed Section 85 of the Act furthers the submission of the petitioner or has any relevance. It is apparent that prior to repeal by Act 47 of 1966, Section 81 provided for the presentation of the election petition by any candidate aggrieved by the result of the election to the Election Commission; Section 83 prescribed what the contents of the petition shouldexamination of this decision does not support this contention of the appellant. That was a case under the unamended S. 117 of the Act under which the petitioner was required to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of thedecision, therefore, cannot come to the rescue of a petitioner who has failed to deposit the security as required under Section 117 of the Act or has paid less than the amount specified therein. The decision in Lalaram v.The Supreme Court of India AIR 1967 SC 847 has no relevance to the matter in issue because as pointed out by the High Court that case relates to security being furnished for filing a review petition under the Supreme Court Rules, which, stands on a different footing.5. The argument of the appellants advocate that in view of the marginal note to Section 86 election petition can only be dismissed after the trial has commenced by the issue of a notice to the respondent is equally without substance. Amended S. 86 apart from(1) provides for several matters in(2) to (7) such as for reference of the election petition or election petitions, where there is more than one in respect of the same election, to a Judge, the ordering of security for costs in case of the application by a candidate who is not already a respondent being made a respondent, the permission to amend or amplify particulars of an corrupt practice alleged in the petition, the continuance of the trial of the election petition from day to day and its expeditious trial to be concluded as far as possible within six months from the presentation of the petition to the High Court. The reference to Trial is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent. The marginal note of Section 36, namely, "Trial of election petitions can not indicate that under(l) of Section 86 an election petition cannot be dismissed forwith the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evident from(1) of Section 86, the marginal note cannot be read to control that power.
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P. V. Raghava Reddi And Another Vs. Commissioner Of Income-Tax | years in question, and the appellant firm could be treated as an assessee for purposes of S. 42. What was contended was that the view of the Tribunal of S. 4 (1) is the right view of the law. Section 4 (1) prior to its amendment in 1950 by the Adaptation of Laws Order, 1950, read :"4. (1) . Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which -(a) are received or are deemed to be received in British India in such year by or on behalf of such person, or(b) if such person is resident in British India during such year,-(i) accrue or arise or are deemed to accrue or arise to him in British India during such year, or(ii) accrue or arise to him without British India during such year, or(iii) having accrued or arisen to him without British India before the beginning of such year and after the 1st day of April 1933, are brought into or received in British India by him during such year, or(c) if such person is not resident in British India during such year, accrue or arise or are deemed to accrue or arise to him in British India during such year :"6. The contention is that this income cannot be deemed to be received in the taxable territories (then British India) in the year of account. It is urged that the Japaneses Company did not actually receive it in British India, and that there was only a relation of debtor and creditor between the assessee firm and the Japanese Company. Till the money was actually paid over to the Japanese Company, a mere entry in the account books of the firm was not a receipt by the Japanese Company, and mere entry of an item in the account books has not been deemed to be a receipt by any provision of the Act, which it is said, always states clearly when a fiction is to be applied. It is also argued that cl. (a) of S.4 (1) is delimited by cl. (c).7. Clauses (a) (c) of S. 4 (1) are not interdependent. In Turner Morrisons case, 1953-28 ITR 152 : (AIR 1953 SC 140 ), it was observed by this Court that,"the whole object of trial section (S. 42) is to make certain income, profits and gains to be deemed to arise in India so as to bring them to charge. The receipt of income, profits and gains being one of the rests of liability, where the income, profits and gains are actually received in India it is no longer necessary for the revenue authorities to have recourse to the fiction".After referring to certain authorities in which this was so held, this Court pointed out:"Section 4(1)(a) in terms is, unlike Section 4 (1) (b) or 4 (1)(c), not confined in its application, to any particular category of assessees. Section 4(1)(a) is general and applies to a resident or a non-resident person."It was rightly pointed out by the High Court in the judgment under appeal that :"Actual or deemed receipt of income in the taxable territories by or on behalf of non-residents attracts tax under S. 4 (1) (a) even though the income may not be chargeable under S. 4 (1) (c) by reason of its having accrued or arisen outside. Receipt of income within the taxable territories by itself attracts tax whether the recipient is a resident or non-resident and whether the income accrued or arose within the taxable territories or outside. So much is plain on the language of S. 4(1)(a) and (c).8. In our opinion, as (a) and (c) of S. 4 (1) can be read disjunctively, and cl. (a), which provides for receipt of income, profits and gains in the taxable territories cannot be subjected to the limitation that the income must also accrue or arise in the taxable territories. To make cl. (a) depend on cl. (c) is to make the "accrual" the test, while cl. (a) only considers receipt in the taxable territories sufficient. The clauses are capable of being read independently, though, sometimes, they may operate together.9. This leaves over the question which was earnestly argued, namely, whether the amounts in the two account years can be said to be received by the Japanese Company in the taxable territories. The argument is that the money was not actually received, but the assessee firm was a debtor in, respect of that amount and unless the entry can be deemed to be a payment or receipt, cl. (a) cannot apply. We need not consider the fiction, for it is not necessary to go to the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company. Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal. The character of the money changed from a debt to a deposit in much the same way as if it was credited in a Bank to account of the Company. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of S. 4 (1) (a). Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court was right in answering the question against the assessee. | 0[ds]4. Under S. 42, all income, profits or gains accruing or arising, whether directly or indirectly, through or from any business connection in the taxable territories are deemed to be income accruing or arising within the taxable territories, and if the person entitled to the income, profits or gains is not resident in the taxable territories, it is chargeable to income-tax either in his name or in the name of his agent, and in the latter case, such agent is deemed to be, far all the purposes of the Act, the assessee in respect of such income-tax. The provisos to the section enable the application of S. 18, and the tax may be recovered by deduction under that section and the agent or any person who apprehends that may be assessed as such an agent is also enabled to retain out of the money." payable to the non-resident person a sum equal to his estimated liability. The section thus creates a vicarious liability in so far as the agent is concerned, for, the tax which the non-resident has to pay; but as a safeguard for him, he is enabled to retain from the money he has to pay, a sum equal to his own liability in the event of his being treated as the assessee. Section 43 lays down who can be deemed to be an agent, and it is provided that any person having any business connection with a nonresident person or through whom the nonresident is in receipt of any income profits or gains is to be deemed to be such an agent, if the Income-tax Officer has caused a notice to be served of his intention of treating him as the agent of the non-resident person. Such persons are conveniently described as "statutory agents".In our opinion, as (a) and (c) of S. 4 (1) can be read disjunctively, and cl. (a), which provides for receipt of income, profits and gains in the taxable territories cannot be subjected to the limitation that the income must also accrue or arise in the taxable territories. To make cl. (a) depend on cl. (c) is to make the "accrual" the test, while cl. (a) only considers receipt in the taxable territories sufficient. The clauses are capable of being read independently, though, sometimes, they may operateargument is that the money was not actually received, but the assessee firm was a debtor in, respect of that amount and unless the entry can be deemed to be a payment or receipt, cl. (a) cannot apply. We need not consider the fiction, for it is not necessary to go to the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company. Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal. The character of the money changed from a debt to a deposit in much the same way as if it was credited in a Bank to account of the Company. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of S. 4 (1) (a). Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court was right in answering the question against the assessee. | 0 | 2,527 | 747 | ### Instruction:
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years in question, and the appellant firm could be treated as an assessee for purposes of S. 42. What was contended was that the view of the Tribunal of S. 4 (1) is the right view of the law. Section 4 (1) prior to its amendment in 1950 by the Adaptation of Laws Order, 1950, read :"4. (1) . Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which -(a) are received or are deemed to be received in British India in such year by or on behalf of such person, or(b) if such person is resident in British India during such year,-(i) accrue or arise or are deemed to accrue or arise to him in British India during such year, or(ii) accrue or arise to him without British India during such year, or(iii) having accrued or arisen to him without British India before the beginning of such year and after the 1st day of April 1933, are brought into or received in British India by him during such year, or(c) if such person is not resident in British India during such year, accrue or arise or are deemed to accrue or arise to him in British India during such year :"6. The contention is that this income cannot be deemed to be received in the taxable territories (then British India) in the year of account. It is urged that the Japaneses Company did not actually receive it in British India, and that there was only a relation of debtor and creditor between the assessee firm and the Japanese Company. Till the money was actually paid over to the Japanese Company, a mere entry in the account books of the firm was not a receipt by the Japanese Company, and mere entry of an item in the account books has not been deemed to be a receipt by any provision of the Act, which it is said, always states clearly when a fiction is to be applied. It is also argued that cl. (a) of S.4 (1) is delimited by cl. (c).7. Clauses (a) (c) of S. 4 (1) are not interdependent. In Turner Morrisons case, 1953-28 ITR 152 : (AIR 1953 SC 140 ), it was observed by this Court that,"the whole object of trial section (S. 42) is to make certain income, profits and gains to be deemed to arise in India so as to bring them to charge. The receipt of income, profits and gains being one of the rests of liability, where the income, profits and gains are actually received in India it is no longer necessary for the revenue authorities to have recourse to the fiction".After referring to certain authorities in which this was so held, this Court pointed out:"Section 4(1)(a) in terms is, unlike Section 4 (1) (b) or 4 (1)(c), not confined in its application, to any particular category of assessees. Section 4(1)(a) is general and applies to a resident or a non-resident person."It was rightly pointed out by the High Court in the judgment under appeal that :"Actual or deemed receipt of income in the taxable territories by or on behalf of non-residents attracts tax under S. 4 (1) (a) even though the income may not be chargeable under S. 4 (1) (c) by reason of its having accrued or arisen outside. Receipt of income within the taxable territories by itself attracts tax whether the recipient is a resident or non-resident and whether the income accrued or arose within the taxable territories or outside. So much is plain on the language of S. 4(1)(a) and (c).8. In our opinion, as (a) and (c) of S. 4 (1) can be read disjunctively, and cl. (a), which provides for receipt of income, profits and gains in the taxable territories cannot be subjected to the limitation that the income must also accrue or arise in the taxable territories. To make cl. (a) depend on cl. (c) is to make the "accrual" the test, while cl. (a) only considers receipt in the taxable territories sufficient. The clauses are capable of being read independently, though, sometimes, they may operate together.9. This leaves over the question which was earnestly argued, namely, whether the amounts in the two account years can be said to be received by the Japanese Company in the taxable territories. The argument is that the money was not actually received, but the assessee firm was a debtor in, respect of that amount and unless the entry can be deemed to be a payment or receipt, cl. (a) cannot apply. We need not consider the fiction, for it is not necessary to go to the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company. Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal. The character of the money changed from a debt to a deposit in much the same way as if it was credited in a Bank to account of the Company. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of S. 4 (1) (a). Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court was right in answering the question against the assessee.
### Response:
0
### Explanation:
4. Under S. 42, all income, profits or gains accruing or arising, whether directly or indirectly, through or from any business connection in the taxable territories are deemed to be income accruing or arising within the taxable territories, and if the person entitled to the income, profits or gains is not resident in the taxable territories, it is chargeable to income-tax either in his name or in the name of his agent, and in the latter case, such agent is deemed to be, far all the purposes of the Act, the assessee in respect of such income-tax. The provisos to the section enable the application of S. 18, and the tax may be recovered by deduction under that section and the agent or any person who apprehends that may be assessed as such an agent is also enabled to retain out of the money." payable to the non-resident person a sum equal to his estimated liability. The section thus creates a vicarious liability in so far as the agent is concerned, for, the tax which the non-resident has to pay; but as a safeguard for him, he is enabled to retain from the money he has to pay, a sum equal to his own liability in the event of his being treated as the assessee. Section 43 lays down who can be deemed to be an agent, and it is provided that any person having any business connection with a nonresident person or through whom the nonresident is in receipt of any income profits or gains is to be deemed to be such an agent, if the Income-tax Officer has caused a notice to be served of his intention of treating him as the agent of the non-resident person. Such persons are conveniently described as "statutory agents".In our opinion, as (a) and (c) of S. 4 (1) can be read disjunctively, and cl. (a), which provides for receipt of income, profits and gains in the taxable territories cannot be subjected to the limitation that the income must also accrue or arise in the taxable territories. To make cl. (a) depend on cl. (c) is to make the "accrual" the test, while cl. (a) only considers receipt in the taxable territories sufficient. The clauses are capable of being read independently, though, sometimes, they may operateargument is that the money was not actually received, but the assessee firm was a debtor in, respect of that amount and unless the entry can be deemed to be a payment or receipt, cl. (a) cannot apply. We need not consider the fiction, for it is not necessary to go to the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company. Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal. The character of the money changed from a debt to a deposit in much the same way as if it was credited in a Bank to account of the Company. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of S. 4 (1) (a). Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court was right in answering the question against the assessee.
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Smt. Kalawati Vs. Bisheshwar | recognised as such bhumidhar and it would be she who would be entitled to the rights of compensation and rehabilitation grant under Chapters III and IV as an intermediary, the right to retain possession of the property and to evict a tenant therefrom. That is the simple position emerging from Sections 4, 18 and 23 (1) (b). 11. In the earlier part of its judgment the Division Bench expressed its inability to appreciate as to why the legislature went out of its way to enact Clause (b). For it did not matter to the State as to whether it was the transferor or the transferee who became the bhumidhar. But the legislature had a clear purpose in enacting Clause (b) and it is because the learned Judges failed to appreciate that purpose that they allowed themselves to deviate from the true construction and object of that clause. The legislature was aware that transfers of zamindari properties had taken place before the Act came into force and as a result it would be the transferees thereunder who would be the intermediaries and therefore bhumidhars under Section 18 with rights inter alia to compensation and rehabilitation grant. The purpose of the legislature however was to recognise the original owners that is, the transferors as persons entitled to the rights of bhumidhars and therefore provided in Clause (b) that no such transfer is to be recognised "for any purpose whatsoever".Though therefore such a transfer made the transferee an intermediary and therefore a bhumidhar under Section 18 clause (b) laid down a bar against its recognition. The words "any purpose whatsoever" were used in cl. (b) as Clause (a) of Section 23 (1) provided that a transfer made on or after July 1, 1948 was not to be recognised for the purpose only of assessing rehabilitation grant payable to an intermediary. But there are purposes under the Act other than payment of rehabilitation grant such as compensation payable under Chapter III and other rights of a bhumidhar provided in other parts of the Act. When Section 23 (1) is read as a whole it is clear that with respect to transfers made after July 7, 1949 the legislature wanted to lay down a bar against its recognition for all these purposes also and hence advisedly used the words "for any purpose whatsoever", that is, for all purposes under the Act. The Division Bench therefore was not right in saying that Cl. (b) did not serve any useful purpose and that it did not appreciate why the legislature had enacted that clause. It is because this was the purpose of enacting Cl. (b) that the legislature also enacted a deeming provision under which the estate is to be deemed to continue to vest in the transferor. The impact of Cl. (b) on the transfer made after July 7, 1949 is that though the transferee by reason of such transfer becomes the intermediary and a bhumidhar under Section 18, it hers recognition of his rights as such bhumidhar for any of the purposes of the Act whatsoever. Instead, as a result of the deeming provision in the clause, the transferor continues to have those rights notwithstanding the transfer. If the clause had rendered such a transfer void and therefore non-existent the transferor would have remained the owner of the property and would have the rights of a bhumidhar under Section 18 and there would not have been any necessity of enacting the deeming provision under which the property though transferred is deemed to continue to vest in such transferor. 12. In this view the sale in favour of the appellant was not void but a valid sale. It was she who became the intermediary and it was her rights as such intermediary which Section 4 abolished. By virtue of the combined effect of Sections 4 and 18 she became the bhumidhar. But for Clause (b) her rights as such bhumidhar would have been recognised and she would have been entitled to the rights as such bhumidhar under the Act. But by reason of the bar against recognition of the sale no court can recognise and give effect to those rights. As the property is deemed to continue to vest in the transferor it is he who can exercise those rights.As a result of the deletion of Clause (b) as from October 10, 1954 the bar against recognition is removed and the transferee can enforce his rights as from that date. The deletion of Clause (b) by Act 20 of 1954 was however prospective. Therefore, for the period between July 1, 1952 and October 10, 1954 the rights of the transferee under the Act such as the right to compensation and rehabilitation grant would still not be recognised. To remove this difficulty the legislature by Section 3 of the Amendment Act 1956 made the deletion of Clause (b) retrospective from the date of the commencement of the Act with regard to the right of the transferee to compensation and rehabilitation grant. 13. The position which emerges from this discussion is that when the suit was filed though the appellant was the intermediary and the bhumidhar under Sec. 18, her right to evict the respondent could not be recognised. As the estate was deemed to continue to vest in the transferor, Kapurthala Estate had to join in the suit as a co-plaintiff.From October 10, 1954 the bar was removed and the appellant became entitled to maintain the suit in her own right and the withdrawal of Kapurthala Estate as plaintiff No. 1 did not affect the maintainability of the suit.The contention of Mr. Shukla that the withdrawal must be deemed to date back to the institution of the suit has in our view no force. No such order was made by the Trial Court which ordered the withdrawal. The withdrawal therefore took place after the bar under Cl. (b) against recognition of the appellants rights was deleted and the appellant therefore lad the right to maintain the suit. | 1[ds]Leaving aside for the time being Clause (b) of Section 23 (1) there is otherwise nothing in the Act which provides that a transfer validly effected prior to July 1, 1952 shall be void and will have no effect. There is also nothing in the Act touching the consequence of such a transfer under the Transfer of Property Act9. There is a clear distinction between a transaction being void that is, non-existent from its very inception and a ban against its recognition. Indeed when it is said that such a transaction is not to be recognized for any purpose whatsoever it postulates that the transaction does, exist and is valid but is not to be recognisedThere is thus a clear distinction between a transaction being void and one though valid and existent which is not to be recognised or acknowledged. The legislature also appears to be fully aware of the distinction between a void transaction and one which is not to be recognised. In Sections 24 and 166 the legislature has declared certain transactions therein set out void and of no effect as against Clause (b) of Section 23 (1) where it provides only a bar against recognition. That being so it is impossible to say that the bar of recognition in Clause (b) to a transfer made after July 7, 1949 means that such a transfer is void. The sale in favour of the appellant was therefore valid and did have the effect of conveying and vesting the ownership of the property in the appellantThe sale in favour of the appellant transferred all rights of ownership of the Kapurthala Estate in the appellant and therefore the appellant became the zamindar in respect of that property. Section 4 of the Act abolished zamindari rights and vested those rights in the State Under S. 18 the zamindar who is the intermediary would become the bhumidhar and therefore by reason of the sale in her favour it was the appellant who became entitled to the bhumidhars rights. But for Clause (b) of Section 23 (1) it would be the appellant who would have to be recognised as such bhumidhar and it would be she who would be entitled to the rights of compensation and rehabilitation grant under Chapters III and IV as an intermediary, the right to retain possession of the property and to evict a tenant therefrom. That is the simple position emerging from Sections 4, 18 and 23 (1) (b)11. In the earlier part of its judgment the Division Bench expressed its inability to appreciate as to why the legislature went out of its way to enact Clause (b). For it did not matter to the State as to whether it was the transferor or the transferee who became the bhumidhar. But the legislature had a clear purpose in enacting Clause (b) and it is because the learned Judges failed to appreciate that purpose that they allowed themselves to deviate from the true construction and object of that clause. The legislature was aware that transfers of zamindari properties had taken place before the Act came into force and as a result it would be the transferees thereunder who would be the intermediaries and therefore bhumidhars under Section 18 with rights inter alia to compensation and rehabilitation grant. The purpose of the legislature however was to recognise the original owners that is, the transferors as persons entitled to the rights of bhumidhars and therefore provided in Clause (b) that no such transfer is to be recognised "for any purpose whatsoever".Though therefore such a transfer made the transferee an intermediary and therefore a bhumidhar under Section 18 clause (b) laid down a bar against its recognition. The words "any purpose whatsoever" were used in cl. (b) as Clause (a) of Section 23 (1) provided that a transfer made on or after July 1, 1948 was not to be recognised for the purpose only of assessing rehabilitation grant payable to an intermediary. But there are purposes under the Act other than payment of rehabilitation grant such as compensation payable under Chapter III and other rights of a bhumidhar provided in other parts of the Act. When Section 23 (1) is read as a whole it is clear that with respect to transfers made after July 7, 1949 the legislature wanted to lay down a bar against its recognition for all these purposes also and hence advisedly used the words "for any purpose whatsoever", that is, for all purposes under the ActThe Division Bench therefore was not right in saying that Cl. (b) did not serve any useful purpose and that it did not appreciate why the legislature had enacted that clause. It is because this was the purpose of enacting Cl. (b) that the legislature also enacted a deeming provision under which the estate is to be deemed to continue to vest in the transferor. The impact of Cl. (b) on the transfer made after July 7, 1949 is that though the transferee by reason of such transfer becomes the intermediary and a bhumidhar under Section 18, it hers recognition of his rights as such bhumidhar for any of the purposes of the Act whatsoever. Instead, as a result of the deeming provision in the clause, the transferor continues to have those rights notwithstanding the transfer. If the clause had rendered such a transfer void and therefore non-existent the transferor would have remained the owner of the property and would have the rights of a bhumidhar under Section 18 and there would not have been any necessity of enacting the deeming provision under which the property though transferred is deemed to continue to vest in such transferor13. The position which emerges from this discussion is that when the suit was filed though the appellant was the intermediary and the bhumidhar under Sec. 18, her right to evict the respondent could not be recognised. As the estate was deemed to continue to vest in the transferor, Kapurthala Estate had to join in the suit as a co-plaintiff.From October 10, 1954 the bar was removed and the appellant became entitled to maintain the suit in her own right and the withdrawal of Kapurthala Estate as plaintiff No. 1 did not affect the maintainability of the suit.The contention of Mr. Shukla that the withdrawal must be deemed to date back to the institution of the suit has in our view no force. No such order was made by the Trial Court which ordered the withdrawal. The withdrawal therefore took place after the bar under Cl. (b) against recognition of the appellants rights was deleted and the appellant therefore lad the right to maintain the suit | 1 | 3,697 | 1,214 | ### Instruction:
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recognised as such bhumidhar and it would be she who would be entitled to the rights of compensation and rehabilitation grant under Chapters III and IV as an intermediary, the right to retain possession of the property and to evict a tenant therefrom. That is the simple position emerging from Sections 4, 18 and 23 (1) (b). 11. In the earlier part of its judgment the Division Bench expressed its inability to appreciate as to why the legislature went out of its way to enact Clause (b). For it did not matter to the State as to whether it was the transferor or the transferee who became the bhumidhar. But the legislature had a clear purpose in enacting Clause (b) and it is because the learned Judges failed to appreciate that purpose that they allowed themselves to deviate from the true construction and object of that clause. The legislature was aware that transfers of zamindari properties had taken place before the Act came into force and as a result it would be the transferees thereunder who would be the intermediaries and therefore bhumidhars under Section 18 with rights inter alia to compensation and rehabilitation grant. The purpose of the legislature however was to recognise the original owners that is, the transferors as persons entitled to the rights of bhumidhars and therefore provided in Clause (b) that no such transfer is to be recognised "for any purpose whatsoever".Though therefore such a transfer made the transferee an intermediary and therefore a bhumidhar under Section 18 clause (b) laid down a bar against its recognition. The words "any purpose whatsoever" were used in cl. (b) as Clause (a) of Section 23 (1) provided that a transfer made on or after July 1, 1948 was not to be recognised for the purpose only of assessing rehabilitation grant payable to an intermediary. But there are purposes under the Act other than payment of rehabilitation grant such as compensation payable under Chapter III and other rights of a bhumidhar provided in other parts of the Act. When Section 23 (1) is read as a whole it is clear that with respect to transfers made after July 7, 1949 the legislature wanted to lay down a bar against its recognition for all these purposes also and hence advisedly used the words "for any purpose whatsoever", that is, for all purposes under the Act. The Division Bench therefore was not right in saying that Cl. (b) did not serve any useful purpose and that it did not appreciate why the legislature had enacted that clause. It is because this was the purpose of enacting Cl. (b) that the legislature also enacted a deeming provision under which the estate is to be deemed to continue to vest in the transferor. The impact of Cl. (b) on the transfer made after July 7, 1949 is that though the transferee by reason of such transfer becomes the intermediary and a bhumidhar under Section 18, it hers recognition of his rights as such bhumidhar for any of the purposes of the Act whatsoever. Instead, as a result of the deeming provision in the clause, the transferor continues to have those rights notwithstanding the transfer. If the clause had rendered such a transfer void and therefore non-existent the transferor would have remained the owner of the property and would have the rights of a bhumidhar under Section 18 and there would not have been any necessity of enacting the deeming provision under which the property though transferred is deemed to continue to vest in such transferor. 12. In this view the sale in favour of the appellant was not void but a valid sale. It was she who became the intermediary and it was her rights as such intermediary which Section 4 abolished. By virtue of the combined effect of Sections 4 and 18 she became the bhumidhar. But for Clause (b) her rights as such bhumidhar would have been recognised and she would have been entitled to the rights as such bhumidhar under the Act. But by reason of the bar against recognition of the sale no court can recognise and give effect to those rights. As the property is deemed to continue to vest in the transferor it is he who can exercise those rights.As a result of the deletion of Clause (b) as from October 10, 1954 the bar against recognition is removed and the transferee can enforce his rights as from that date. The deletion of Clause (b) by Act 20 of 1954 was however prospective. Therefore, for the period between July 1, 1952 and October 10, 1954 the rights of the transferee under the Act such as the right to compensation and rehabilitation grant would still not be recognised. To remove this difficulty the legislature by Section 3 of the Amendment Act 1956 made the deletion of Clause (b) retrospective from the date of the commencement of the Act with regard to the right of the transferee to compensation and rehabilitation grant. 13. The position which emerges from this discussion is that when the suit was filed though the appellant was the intermediary and the bhumidhar under Sec. 18, her right to evict the respondent could not be recognised. As the estate was deemed to continue to vest in the transferor, Kapurthala Estate had to join in the suit as a co-plaintiff.From October 10, 1954 the bar was removed and the appellant became entitled to maintain the suit in her own right and the withdrawal of Kapurthala Estate as plaintiff No. 1 did not affect the maintainability of the suit.The contention of Mr. Shukla that the withdrawal must be deemed to date back to the institution of the suit has in our view no force. No such order was made by the Trial Court which ordered the withdrawal. The withdrawal therefore took place after the bar under Cl. (b) against recognition of the appellants rights was deleted and the appellant therefore lad the right to maintain the suit.
### Response:
1
### Explanation:
valid but is not to be recognisedThere is thus a clear distinction between a transaction being void and one though valid and existent which is not to be recognised or acknowledged. The legislature also appears to be fully aware of the distinction between a void transaction and one which is not to be recognised. In Sections 24 and 166 the legislature has declared certain transactions therein set out void and of no effect as against Clause (b) of Section 23 (1) where it provides only a bar against recognition. That being so it is impossible to say that the bar of recognition in Clause (b) to a transfer made after July 7, 1949 means that such a transfer is void. The sale in favour of the appellant was therefore valid and did have the effect of conveying and vesting the ownership of the property in the appellantThe sale in favour of the appellant transferred all rights of ownership of the Kapurthala Estate in the appellant and therefore the appellant became the zamindar in respect of that property. Section 4 of the Act abolished zamindari rights and vested those rights in the State Under S. 18 the zamindar who is the intermediary would become the bhumidhar and therefore by reason of the sale in her favour it was the appellant who became entitled to the bhumidhars rights. But for Clause (b) of Section 23 (1) it would be the appellant who would have to be recognised as such bhumidhar and it would be she who would be entitled to the rights of compensation and rehabilitation grant under Chapters III and IV as an intermediary, the right to retain possession of the property and to evict a tenant therefrom. That is the simple position emerging from Sections 4, 18 and 23 (1) (b)11. In the earlier part of its judgment the Division Bench expressed its inability to appreciate as to why the legislature went out of its way to enact Clause (b). For it did not matter to the State as to whether it was the transferor or the transferee who became the bhumidhar. But the legislature had a clear purpose in enacting Clause (b) and it is because the learned Judges failed to appreciate that purpose that they allowed themselves to deviate from the true construction and object of that clause. The legislature was aware that transfers of zamindari properties had taken place before the Act came into force and as a result it would be the transferees thereunder who would be the intermediaries and therefore bhumidhars under Section 18 with rights inter alia to compensation and rehabilitation grant. The purpose of the legislature however was to recognise the original owners that is, the transferors as persons entitled to the rights of bhumidhars and therefore provided in Clause (b) that no such transfer is to be recognised "for any purpose whatsoever".Though therefore such a transfer made the transferee an intermediary and therefore a bhumidhar under Section 18 clause (b) laid down a bar against its recognition. The words "any purpose whatsoever" were used in cl. (b) as Clause (a) of Section 23 (1) provided that a transfer made on or after July 1, 1948 was not to be recognised for the purpose only of assessing rehabilitation grant payable to an intermediary. But there are purposes under the Act other than payment of rehabilitation grant such as compensation payable under Chapter III and other rights of a bhumidhar provided in other parts of the Act. When Section 23 (1) is read as a whole it is clear that with respect to transfers made after July 7, 1949 the legislature wanted to lay down a bar against its recognition for all these purposes also and hence advisedly used the words "for any purpose whatsoever", that is, for all purposes under the ActThe Division Bench therefore was not right in saying that Cl. (b) did not serve any useful purpose and that it did not appreciate why the legislature had enacted that clause. It is because this was the purpose of enacting Cl. (b) that the legislature also enacted a deeming provision under which the estate is to be deemed to continue to vest in the transferor. The impact of Cl. (b) on the transfer made after July 7, 1949 is that though the transferee by reason of such transfer becomes the intermediary and a bhumidhar under Section 18, it hers recognition of his rights as such bhumidhar for any of the purposes of the Act whatsoever. Instead, as a result of the deeming provision in the clause, the transferor continues to have those rights notwithstanding the transfer. If the clause had rendered such a transfer void and therefore non-existent the transferor would have remained the owner of the property and would have the rights of a bhumidhar under Section 18 and there would not have been any necessity of enacting the deeming provision under which the property though transferred is deemed to continue to vest in such transferor13. The position which emerges from this discussion is that when the suit was filed though the appellant was the intermediary and the bhumidhar under Sec. 18, her right to evict the respondent could not be recognised. As the estate was deemed to continue to vest in the transferor, Kapurthala Estate had to join in the suit as a co-plaintiff.From October 10, 1954 the bar was removed and the appellant became entitled to maintain the suit in her own right and the withdrawal of Kapurthala Estate as plaintiff No. 1 did not affect the maintainability of the suit.The contention of Mr. Shukla that the withdrawal must be deemed to date back to the institution of the suit has in our view no force. No such order was made by the Trial Court which ordered the withdrawal. The withdrawal therefore took place after the bar under Cl. (b) against recognition of the appellants rights was deleted and the appellant therefore lad the right to maintain the suit
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MOHD. ASIF NASEER Vs. WEST WATCH COMPANY THROUGH ITS PROPERTIER | as required under Section 21 of the Rent Control Act, had been sent by the appellant (landlord) and received by the respondent (tenant), which is fully justified in law. Such finding of fact was duly affirmed by the Appellate Authority. In our view, such finding of fact (which was not merely a presumption of service based solely on notice having been sent under postal certificate), having been arrived at on the basis of valid reasons in the facts of the case, ought not to have been upset by the Writ Court. 16. Learned Counsel for the respondent-tenant has, in support of his submissions, relied on the decision of this Court in the case of Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681, which would not be of much relevance, as the same relates to a criminal trial where the issue of determining the age of juvenile was under consideration. The same was under the provisions of Juvenile Justice Act, where the Evidence Act was clearly applicable, which is not so in matters under the Rent Control Act, where evidence can also be led on affidavit. The other case of U.Sree vs. U.Srinivas (2013) 2 SCC 114, relates to Hindu Marriage Act, where also the Evidence Act is applicable. The question there was with regard to certain document, which had been filed and not proved. The same was filed without being accompanied by an affidavit, whereas in the case at hand, the receipt under certificate of posting was filed along with an affidavit, which is permissible under Section 34 of the Rent Control Act. The other case of Shiv Kumar vs. State of Haryana (1994) 4 SCC 445, relates to Industrial Disputes Act. In the said case, this Court held that in the facts of that case, where reliance was placed only on service under certificate of posting without any other circumstances and proof, there could be no presumption of service of notice. Reliance was placed on Rule 76 A(2) of the Industrial Rules which provided for a specific manner of service. Such is not the position in the present case, where the Act provides for notice to be given, without providing the manner in which it is to be given. As such, this case will also not be of direct relevance to the case at hand. 17. On the contrary, in the case of Sumitra Devi vs. Sampuran Singh (2011) 3 SCC 556, which has been relied upon by learned Senior Counsel for the Appellant, this Court has held that it will all depend on the facts of each case whether the presumption of service of notice sent under postal certificate should be drawn. It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such presumption is expected to be drawn even in the case of a letter sent under postal certificate. Considering the facts and circumstances of that case, this Court held the notice sent under certificate of posting to be sufficient service. In the case of Ranju vs. Rekha Ghosh (2007) 14 SCC 81, this court was considering a case where one months notice was to be given to the tenant for eviction. After considering the provisions of the relevant Tenancy Act, Transfer of Property Act and the Bengal General Clauses Act, it was held that clause (6) provides mere one months notice; in such event, the said notice can be served in any manner and it cannot be claimed that the same should be served only by registered post with acknowledgement due. In the facts of that case, it was held that service of notice sent under certificate of posting was sufficient. Similar is the case at hand, where the Act provides for that the landlord has given a notice…, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service. While considering a case of service of notice under the Companies Act, this Court, in the case of V.S. Krishnan vs. Westfort Hi-Tech Hospitals (2008) 3 SCC 363, has held that service of notice sent under certificate of posting would be sufficient where there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. 18. It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits filing of a document (receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as have been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact. 19. Further, the Prescribed Authority as well as the Appellate Authority have given clear finding of fact that the hardship of the appellant (landlord) was greater than that of the respondent (tenant) and, thus, allowed the release application, which finding has not been specifically considered or categorically upset by the Writ Court. Such finding of fact also does not require any interference by this Court. | 1[ds]10. From the perusal of the judgment of the High Court, it is clear that the primary reason for allowing the Writ Petition was that there could be no presumption of service of notice as required under the Proviso to Section 21(1)(a) of the Rent Control Act. The finding of the fact with regard to comparative hardship of the landlord being higher than that of the tenant, as recorded by the Prescribed Authority and the Appellate Authority, has not been disturbed by the High Court, except for a mere mention in passing in the later part of the judgment, which cannot be considered to have upset the finding of fact with regard to comparative hardship, as recorded by the Authorities12. From the perusal of the aforesaid Proviso to the said Section, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that the landlord has given a notice in that behalf to the tenant13. The Prescribed Authority, while recording the finding that the tenant was given notice for eviction, has considered the various facts leading to the recording of such finding. It is not that the Prescribed Authority has drawn a presumption of the notice having been served merely because it was said to have been sent under certificate of posting. The Prescribed Authority has held that the respondent (tenant) while admitting the applicant as landlord had filed the application under Section 30(1) to deposit the rent in the Court . The Prescribed Authority recorded that it was after the notice had been sent in the year 2006 (on 25.07.2006) that an application under Section 30(1) of the Rent Control Act was filed by the respondent (tenant) in the year 2007 for deposit of rent in Court, after which, the suit was filed by the appellant in the year 2008. The said suit was admittedly after three years of the Sale Deed, which was executed on 29.10.2004. It was in this factual background that the Prescribed Authority held that the notice of six months required under Section 21 of the Rent Control Act was duly given by the landlord to the tenant before filing of the suit in the year 2008. The respondent-tenant had admitted the appellant as his landlord and filed an application to deposit rent in Court in the year 2007. It is not disputed that photocopy of the receipt dated 25.07.2006 of having sent the notice under certificate of posting was filed by the appellant (landlord) along with an affidavit before the Prescribed Authority; and the application of the respondent (tenant) for filing the carbon copy (instead of photocopy) of the receipt of under certificate of posting, was rejected by the Prescribed Authority on 21.04.2011, which Order had become final, as the same had not been challenged by the tenant and, thus, there was no occasion for the appellant to file the carbon copy of the receipt of under certificate of posting15. In view of the aforesaid, it is clear that evidence adduced on affidavit was admissible before the Prescribed Authority. In the facts of the present case, when the appellant (landlord) had filed the photocopy of the receipt of having sent the notice under certificate of posting, along with an affidavit, which was accepted by the Prescribed Authority, and coupled with the attending circumstances as noticed by the Prescribed Authority, a specific finding of fact was recorded that due notice, as required under Section 21 of the Rent Control Act, had been sent by the appellant (landlord) and received by the respondent (tenant), which is fully justified in law. Such finding of fact was duly affirmed by the Appellate Authority. In our view, such finding of fact (which was not merely a presumption of service based solely on notice having been sent under postal certificate), having been arrived at on the basis of valid reasons in the facts of the case, ought not to have been upset by the Writ CourtSuch is not the position in the present case, where the Act provides for notice to be given, without providing the manner in which it is to be given. As such, this case will also not be of direct relevance to the case at handSimilar is the case at hand, where the Act provides for that the landlord has given a notice…, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service18. It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits filing of a document (receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as have been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact19. Further, the Prescribed Authority as well as the Appellate Authority have given clear finding of fact that the hardship of the appellant (landlord) was greater than that of the respondent (tenant) and, thus, allowed the release application, which finding has not been specifically considered or categorically upset by the Writ Court. Such finding of fact also does not require any interference by this Court. | 1 | 3,568 | 1,173 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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as required under Section 21 of the Rent Control Act, had been sent by the appellant (landlord) and received by the respondent (tenant), which is fully justified in law. Such finding of fact was duly affirmed by the Appellate Authority. In our view, such finding of fact (which was not merely a presumption of service based solely on notice having been sent under postal certificate), having been arrived at on the basis of valid reasons in the facts of the case, ought not to have been upset by the Writ Court. 16. Learned Counsel for the respondent-tenant has, in support of his submissions, relied on the decision of this Court in the case of Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681, which would not be of much relevance, as the same relates to a criminal trial where the issue of determining the age of juvenile was under consideration. The same was under the provisions of Juvenile Justice Act, where the Evidence Act was clearly applicable, which is not so in matters under the Rent Control Act, where evidence can also be led on affidavit. The other case of U.Sree vs. U.Srinivas (2013) 2 SCC 114, relates to Hindu Marriage Act, where also the Evidence Act is applicable. The question there was with regard to certain document, which had been filed and not proved. The same was filed without being accompanied by an affidavit, whereas in the case at hand, the receipt under certificate of posting was filed along with an affidavit, which is permissible under Section 34 of the Rent Control Act. The other case of Shiv Kumar vs. State of Haryana (1994) 4 SCC 445, relates to Industrial Disputes Act. In the said case, this Court held that in the facts of that case, where reliance was placed only on service under certificate of posting without any other circumstances and proof, there could be no presumption of service of notice. Reliance was placed on Rule 76 A(2) of the Industrial Rules which provided for a specific manner of service. Such is not the position in the present case, where the Act provides for notice to be given, without providing the manner in which it is to be given. As such, this case will also not be of direct relevance to the case at hand. 17. On the contrary, in the case of Sumitra Devi vs. Sampuran Singh (2011) 3 SCC 556, which has been relied upon by learned Senior Counsel for the Appellant, this Court has held that it will all depend on the facts of each case whether the presumption of service of notice sent under postal certificate should be drawn. It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such presumption is expected to be drawn even in the case of a letter sent under postal certificate. Considering the facts and circumstances of that case, this Court held the notice sent under certificate of posting to be sufficient service. In the case of Ranju vs. Rekha Ghosh (2007) 14 SCC 81, this court was considering a case where one months notice was to be given to the tenant for eviction. After considering the provisions of the relevant Tenancy Act, Transfer of Property Act and the Bengal General Clauses Act, it was held that clause (6) provides mere one months notice; in such event, the said notice can be served in any manner and it cannot be claimed that the same should be served only by registered post with acknowledgement due. In the facts of that case, it was held that service of notice sent under certificate of posting was sufficient. Similar is the case at hand, where the Act provides for that the landlord has given a notice…, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service. While considering a case of service of notice under the Companies Act, this Court, in the case of V.S. Krishnan vs. Westfort Hi-Tech Hospitals (2008) 3 SCC 363, has held that service of notice sent under certificate of posting would be sufficient where there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. 18. It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits filing of a document (receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as have been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact. 19. Further, the Prescribed Authority as well as the Appellate Authority have given clear finding of fact that the hardship of the appellant (landlord) was greater than that of the respondent (tenant) and, thus, allowed the release application, which finding has not been specifically considered or categorically upset by the Writ Court. Such finding of fact also does not require any interference by this Court.
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Rent Control Act. The finding of the fact with regard to comparative hardship of the landlord being higher than that of the tenant, as recorded by the Prescribed Authority and the Appellate Authority, has not been disturbed by the High Court, except for a mere mention in passing in the later part of the judgment, which cannot be considered to have upset the finding of fact with regard to comparative hardship, as recorded by the Authorities12. From the perusal of the aforesaid Proviso to the said Section, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that the landlord has given a notice in that behalf to the tenant13. The Prescribed Authority, while recording the finding that the tenant was given notice for eviction, has considered the various facts leading to the recording of such finding. It is not that the Prescribed Authority has drawn a presumption of the notice having been served merely because it was said to have been sent under certificate of posting. The Prescribed Authority has held that the respondent (tenant) while admitting the applicant as landlord had filed the application under Section 30(1) to deposit the rent in the Court . The Prescribed Authority recorded that it was after the notice had been sent in the year 2006 (on 25.07.2006) that an application under Section 30(1) of the Rent Control Act was filed by the respondent (tenant) in the year 2007 for deposit of rent in Court, after which, the suit was filed by the appellant in the year 2008. The said suit was admittedly after three years of the Sale Deed, which was executed on 29.10.2004. It was in this factual background that the Prescribed Authority held that the notice of six months required under Section 21 of the Rent Control Act was duly given by the landlord to the tenant before filing of the suit in the year 2008. The respondent-tenant had admitted the appellant as his landlord and filed an application to deposit rent in Court in the year 2007. It is not disputed that photocopy of the receipt dated 25.07.2006 of having sent the notice under certificate of posting was filed by the appellant (landlord) along with an affidavit before the Prescribed Authority; and the application of the respondent (tenant) for filing the carbon copy (instead of photocopy) of the receipt of under certificate of posting, was rejected by the Prescribed Authority on 21.04.2011, which Order had become final, as the same had not been challenged by the tenant and, thus, there was no occasion for the appellant to file the carbon copy of the receipt of under certificate of posting15. In view of the aforesaid, it is clear that evidence adduced on affidavit was admissible before the Prescribed Authority. In the facts of the present case, when the appellant (landlord) had filed the photocopy of the receipt of having sent the notice under certificate of posting, along with an affidavit, which was accepted by the Prescribed Authority, and coupled with the attending circumstances as noticed by the Prescribed Authority, a specific finding of fact was recorded that due notice, as required under Section 21 of the Rent Control Act, had been sent by the appellant (landlord) and received by the respondent (tenant), which is fully justified in law. Such finding of fact was duly affirmed by the Appellate Authority. In our view, such finding of fact (which was not merely a presumption of service based solely on notice having been sent under postal certificate), having been arrived at on the basis of valid reasons in the facts of the case, ought not to have been upset by the Writ CourtSuch is not the position in the present case, where the Act provides for notice to be given, without providing the manner in which it is to be given. As such, this case will also not be of direct relevance to the case at handSimilar is the case at hand, where the Act provides for that the landlord has given a notice…, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service18. It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits filing of a document (receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as have been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact19. Further, the Prescribed Authority as well as the Appellate Authority have given clear finding of fact that the hardship of the appellant (landlord) was greater than that of the respondent (tenant) and, thus, allowed the release application, which finding has not been specifically considered or categorically upset by the Writ Court. Such finding of fact also does not require any interference by this Court.
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R.C. Jal and Another Vs. Union of India | a fee and not a tax or duty and secondly, that the consignee was a non-resident and therefore the Ordinance not having extra-territorial operation could not reach him. 9. Counsel on behalf of the appellant contended that the, appellant was at the material time a resident of Indore and was therefore not bound by the revenue law of the then British India and no suit could be filed for enforcing recovery of revenue dues against the appellant. Reliance was placed in support of the contention on the decision of the House of Lords in Government of India, Ministry of Finance v. Taylor and Anr.([1955] A.C. 491; 27 I.T.R. 356.). In Taylors case the Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income-tax including capital gains tax, which arose on the sale of the companys undertaking in India. It was held by the majority opinion that although under section 302 of the English Companies Act, 1948 a liquidator was required to provide in the liquidation of the company for liabilities of the company the tax claims would not be a liability within the meaning of section 302 of the English Companies Act. The unanimous opinion was that the revenue claims would not be enforceable in relation to assets in England. The ratio of the decision in Taylors(2) case is that India being a foreign Government could not sue tile liquidator taylor in England for income tax levied and declared to be payable under the Indian law. A foreign State cannot enforce a claim for revenues against a foreigner in his home country. The reason is that a foreign court will not be an agency for tax gathering.The decision in Taylors case([1955] A-C 491) is of no aid to the appellant in the present case. The Union in the present case did not either sue or enforce any revenue law in a foreign court. 10. The Coal Production Cess was levied on coal despatched from collieries in the then British India. Under the Rules the excise duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination. The fact found in the present case was that the coal was despatched from the collieries within the then British India. The appellant was the consignee. Freight charges were to be collected at the station of destination, namely, Indore. The appellant also paid the freight charges on the consignments. 11. The levy of cess which is the taxable event happened within the then British India. The duty of excise is determined by reference to goods despatched from collieries. The tax is on the production of coal. The liability to pay cess is on the goods. The cess is a tax on goods and not on the sale of goods. This Court examined the true character of the cess in Jalls([1962] Supp. 3 S.C. P. 43 6.) case and Subba Rao, J. speaking for the Court said at page 451 of the Report: "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the t axing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost. The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience............... A perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence excise duty and there is a rational connection between the said tax and the person on whom it is imposed". The ruling in galls(2) case establishes two propositions. First, that the cess is a duty on the manufacture or production of coal and secondly, the method of collection does not affect the essence of the excise duty.The transaction of sale is a composite transaction consisting of agreement of sale, passing of title, delivery of goods and payment of price and costs charges of transportation. The cess formed surcharge on the freight. The appellant being the consignee was liable for the same. The cess became a part of the freight for purposes of collection but in essence the cess remained a tax o n goods. The machinery for collection of the duty is not to be confused with the duty itself. Once the duty attaches to the goods these became impressed with the liability and the purchaser, namely, the consignee in the present case was affixed with the liability to pay. The liability arose at the colliery. The collection was to be at Indore. The appellant became liable to pay the cess along with the payment of the freight charges. 12. The suit was filed in the year 1953 when Indore was within India and the right of the Union to claim as well as the liability of the appellant to pay the cess was valid and subsisting. The Union was therefore entitled to a decree against the appellant. 13. Counsel on behalf of the appellant sought to raise an additional ground that there was no cause of action against appellant No. 2. Notice of the application for urging additional ground was given on 22 January, 1972. We did not allow this additional ground to be raised at this late stage. If the appellant had raised this question at the trial of the suit the respondent would have dealt with the same. We therefore thought that it would not be fair and proper to allow this ground to be raised.14. | 0[ds]The validity of the Ordinance came up for consideration by this Court in R. C. fall v. Union of India([1962] Supp. 3 S.C.R. 436.). In that case suit was filed in the year 1953 at Chhindwara for recovery of coal cess on 3 consignments, of coal despatched from collieries in the then British India in the months of January/February, 1947 to the consignee at Indore. This Court held that coal cess was levied and collected with the authority of law. This Court however did not decide two contentions sought to be raised in that case. These were first, that coal cess is a fee and not a tax or duty and secondly, that the consignee was a non-resident and therefore the Ordinance not having extra-territorial operation could not reach himThe Coal Production Cess was levied on coal despatched from collieries in the then British India. Under the Rules the excise duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination. The fact found in the present case was that the coal was despatched from the collieries within the then British India. The appellant was the consignee. Freight charges were to be collected at the station of destination, namely, Indore. The appellant also paid the freight charges on the consignmentsThe levy of cess which is the taxable event happened within the then British India. The duty of excise is determined by reference to goods despatched from collieries. The tax is on the production of coal. The liability to pay cess is on the goods. The cess is a tax on goods and not on the sale of goods. This Court examined the true character of the cess in Jalls([1962] Supp. 3 S.C. P. 43 6.) case and Subba Rao, J. speaking for the Court said at page 451 of the Report: "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the t axing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost. The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience............... A perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence excise duty and there is a rational connection between the said tax and the person on whom it is imposed". The ruling in galls(2) case establishes two propositions. First, that the cess is a duty on the manufacture or production of coal and secondly, the method of collection does not affect the essence of the excise duty.The transaction of sale is a composite transaction consisting of agreement of sale, passing of title, delivery of goods and payment of price and costs charges of transportation. The cess formed surcharge on the freight. The appellant being the consignee was liable for the same. The cess became a part of the freight for purposes of collection but in essence the cess remained a tax o n goods. The machinery for collection of the duty is not to be confused with the duty itself. Once the duty attaches to the goods these became impressed with the liability and the purchaser, namely, the consignee in the present case was affixed with the liability to pay. The liability arose at the colliery. The collection was to be at Indore. The appellant became liable to pay the cess along with the payment of the freight chargesThe suit was filed in the year 1953 when Indore was within India and the right of the Union to claim as well as the liability of the appellant to pay the cess was valid and subsisting. The Union was therefore entitled to a decree against the appellant. | 0 | 2,177 | 774 | ### Instruction:
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a fee and not a tax or duty and secondly, that the consignee was a non-resident and therefore the Ordinance not having extra-territorial operation could not reach him. 9. Counsel on behalf of the appellant contended that the, appellant was at the material time a resident of Indore and was therefore not bound by the revenue law of the then British India and no suit could be filed for enforcing recovery of revenue dues against the appellant. Reliance was placed in support of the contention on the decision of the House of Lords in Government of India, Ministry of Finance v. Taylor and Anr.([1955] A.C. 491; 27 I.T.R. 356.). In Taylors case the Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income-tax including capital gains tax, which arose on the sale of the companys undertaking in India. It was held by the majority opinion that although under section 302 of the English Companies Act, 1948 a liquidator was required to provide in the liquidation of the company for liabilities of the company the tax claims would not be a liability within the meaning of section 302 of the English Companies Act. The unanimous opinion was that the revenue claims would not be enforceable in relation to assets in England. The ratio of the decision in Taylors(2) case is that India being a foreign Government could not sue tile liquidator taylor in England for income tax levied and declared to be payable under the Indian law. A foreign State cannot enforce a claim for revenues against a foreigner in his home country. The reason is that a foreign court will not be an agency for tax gathering.The decision in Taylors case([1955] A-C 491) is of no aid to the appellant in the present case. The Union in the present case did not either sue or enforce any revenue law in a foreign court. 10. The Coal Production Cess was levied on coal despatched from collieries in the then British India. Under the Rules the excise duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination. The fact found in the present case was that the coal was despatched from the collieries within the then British India. The appellant was the consignee. Freight charges were to be collected at the station of destination, namely, Indore. The appellant also paid the freight charges on the consignments. 11. The levy of cess which is the taxable event happened within the then British India. The duty of excise is determined by reference to goods despatched from collieries. The tax is on the production of coal. The liability to pay cess is on the goods. The cess is a tax on goods and not on the sale of goods. This Court examined the true character of the cess in Jalls([1962] Supp. 3 S.C. P. 43 6.) case and Subba Rao, J. speaking for the Court said at page 451 of the Report: "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the t axing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost. The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience............... A perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence excise duty and there is a rational connection between the said tax and the person on whom it is imposed". The ruling in galls(2) case establishes two propositions. First, that the cess is a duty on the manufacture or production of coal and secondly, the method of collection does not affect the essence of the excise duty.The transaction of sale is a composite transaction consisting of agreement of sale, passing of title, delivery of goods and payment of price and costs charges of transportation. The cess formed surcharge on the freight. The appellant being the consignee was liable for the same. The cess became a part of the freight for purposes of collection but in essence the cess remained a tax o n goods. The machinery for collection of the duty is not to be confused with the duty itself. Once the duty attaches to the goods these became impressed with the liability and the purchaser, namely, the consignee in the present case was affixed with the liability to pay. The liability arose at the colliery. The collection was to be at Indore. The appellant became liable to pay the cess along with the payment of the freight charges. 12. The suit was filed in the year 1953 when Indore was within India and the right of the Union to claim as well as the liability of the appellant to pay the cess was valid and subsisting. The Union was therefore entitled to a decree against the appellant. 13. Counsel on behalf of the appellant sought to raise an additional ground that there was no cause of action against appellant No. 2. Notice of the application for urging additional ground was given on 22 January, 1972. We did not allow this additional ground to be raised at this late stage. If the appellant had raised this question at the trial of the suit the respondent would have dealt with the same. We therefore thought that it would not be fair and proper to allow this ground to be raised.14.
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The validity of the Ordinance came up for consideration by this Court in R. C. fall v. Union of India([1962] Supp. 3 S.C.R. 436.). In that case suit was filed in the year 1953 at Chhindwara for recovery of coal cess on 3 consignments, of coal despatched from collieries in the then British India in the months of January/February, 1947 to the consignee at Indore. This Court held that coal cess was levied and collected with the authority of law. This Court however did not decide two contentions sought to be raised in that case. These were first, that coal cess is a fee and not a tax or duty and secondly, that the consignee was a non-resident and therefore the Ordinance not having extra-territorial operation could not reach himThe Coal Production Cess was levied on coal despatched from collieries in the then British India. Under the Rules the excise duty was to be collected by the railway administration as a surcharge on freight and was to be recovered from the consignee if the freight charges were to be collected at the destination. The fact found in the present case was that the coal was despatched from the collieries within the then British India. The appellant was the consignee. Freight charges were to be collected at the station of destination, namely, Indore. The appellant also paid the freight charges on the consignmentsThe levy of cess which is the taxable event happened within the then British India. The duty of excise is determined by reference to goods despatched from collieries. The tax is on the production of coal. The liability to pay cess is on the goods. The cess is a tax on goods and not on the sale of goods. This Court examined the true character of the cess in Jalls([1962] Supp. 3 S.C. P. 43 6.) case and Subba Rao, J. speaking for the Court said at page 451 of the Report: "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the t axing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost. The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience............... A perusal of the provisions of the Ordinance clearly demonstrates that the duty imposed is in essence excise duty and there is a rational connection between the said tax and the person on whom it is imposed". The ruling in galls(2) case establishes two propositions. First, that the cess is a duty on the manufacture or production of coal and secondly, the method of collection does not affect the essence of the excise duty.The transaction of sale is a composite transaction consisting of agreement of sale, passing of title, delivery of goods and payment of price and costs charges of transportation. The cess formed surcharge on the freight. The appellant being the consignee was liable for the same. The cess became a part of the freight for purposes of collection but in essence the cess remained a tax o n goods. The machinery for collection of the duty is not to be confused with the duty itself. Once the duty attaches to the goods these became impressed with the liability and the purchaser, namely, the consignee in the present case was affixed with the liability to pay. The liability arose at the colliery. The collection was to be at Indore. The appellant became liable to pay the cess along with the payment of the freight chargesThe suit was filed in the year 1953 when Indore was within India and the right of the Union to claim as well as the liability of the appellant to pay the cess was valid and subsisting. The Union was therefore entitled to a decree against the appellant.
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Vyankates Dhonddeo Deshpande Vs. Sou. Kusum Dattatraya Kulkarni & Ors | manager of a joint Hindu family from becoming a borrower under s. 7. If the construction as suggested by the High Court is accepted it would put joint Hindu family at a disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family, if he has no separate property of his own, and if he cannot borrow the loan in his representative capacity, has no security to offer, nor could he take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family. We see no justification for restricting the word borrower to be an individual alone. In fact the Act itself contemplates joint borrowers. Section 9 provides for joint and several liability of joint borrowers. A Karta of a joint Hindu family therefore can be a borrower in his representative capacity. If the Karta of a joint Hindu family is considered eligible for becoming a borrower would it run counter to the position of other communities in which there is no concept of a joint family and joint family properties ? In t he absence of any such concept a borrower other than a Hindu can offer all the property at his disposal even if he has not sons, as security for the loan to be borrowed because in other communities governed by their personal laws the s on does not acquire interest in the ancestral properties in the hand of the father from the time of his birth. But in Hindu law there are two seemingly contrary but really complimentary principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their fathers debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts (see Jakatis case) (Supra). Now, if the sons of a Hindu father take interest in the ancestral property in the hands of the father by the incident of birth, they also incur the corresponding obligation of discharging the debts incurred by the father either for his own benefit or for the benefit of the joint family from the property in which the sons take interest by birth. Such a concept being absent in communities not governed by Hindu law in this behalf, the father would be free to encumber the property and the sons in such communities would neither get interest by birth nor the liability to pay the fathers debt and would not be able to challenge the sale or property for discharge of the debt incurred by the father. Therefore, the expression borrower in s. 7 need not be given a restricted meaning merely because the Act applies to all communities. Hence a father who is the Karta of the joint family consisting of himself and his sons can become a borrower in his capacity as Karta and if the loan is for legal necessity or for the benefit of the joint family estate he would render the joint family property liable for such debt and if it is for his personal benefit the joint family property even in the hands of the sons would be liable if the debt is not tainted with illegality or immorality. The High Court said that such liability which arises from the obligation of religion and piety cannot be extended to the loans borrowed under the Loans Act because there is no such obligation in other communities to which the Act applies. In reaching this conclusion the High Court overlooked the principle that this doctrine of pious obligation is not merely a religious duty but has passed into the realm of law (see Anthonyswamy), (supra). On the facts of that case this principle was applied to parties belonging to Tamil Vannian Christians. Viewed from this angle, the High Court was in error in holding that Dharmashastras of Hindus never contemplated improvement loans being given by the Governments of the day which were usually monarchies and, therefore, a debt of the kind which is contemplated under the Loans Act could never have been under the contemplation of the writers like Brihaspati and Narada in whose texts the pious liability is imposed on the sons and others. It is not possible to subscribe to this view for the reasons hereinbefore mentioned. The decisions in Sankaran Nambudripad v. Ramaswami Ayyar, (1) and Chinnasami Mudaliar v. Tirumalai Pillai, (2) do not touch the question herein raised and are of no assistance in the matter.It, therefore, clearly transpires that Dattatraya ha d borrowed a loan from the Government under the Loans Act for the benefit of joint family property. It was being recovered as arrears of land revenue. The property which is the subject-matter of dispute in this proceeding was joint family property . It was sold at a revenue auction and the whole of the property was sold and the whole of it was purchased by the purchaser. The debt of Tagai loan for which the property was sold is not shown to be tainted with illegality or immorality or avyavaharik. Therefore, the suit property was liable to be sold at court auction for two reasons, one that the debt was joint family debt for the benefit of the joint family estate and, therefore, all segments of the joint family property were liable for the discharge of the debt, and secondly, under the doctrine of pious obligation of the sons to pay the fathers debt. In the present proceedings no attempt was made to establish that the debt was tainted with illegality or immorality. Therefore , the sale is valid and the purchaser acquired a full and complete title to the property. The sale is not void. 18. Part of the property is acquired and the compensation is taken by the plaintiffs subject to the orders of the Court. 19. | 1[ds]In order to determine what property is available for partition, provision must first be made for joint family debts which are payable out of the joint family property, personal debts of the father not tainted with immorality, maintenance of dependent female members and of disqualified heirs, and for the marriage expenses of unmarried daughter. This must be so because partition is of joint family property and if joint family debts are repaid before the partition only the residue would be available for partition. Therefore, if partition is effected before paying the debts, provision to pay the debts should be made so as to determine the residue available for partition.Having cleared the ground in law, let us look at facts which have been found by the Courts on appreciation of evidence and which unless found to be utterly unconscionable this Court would not interfere with. The trial Court found that the suit property was joint family property and the High Court has not departed therefrom. In fact, in an earlier suit filed by these very plaintiffs being Special Suit No. 14 of 1958 it has been in terms stated that the lands described in para 1 of the plaint Ext. 37 which include the suit land, were originally owned by joint family of plaintiffs and Dattatraya. Therefo re, on plaintiffs own admission the suit land was joint family property of plaintiffs and DattatrayaWe would only look at uncontroverted salient features of the evidence. Prescribed form of application, Ext. 128 with application Ext. 129 would show that the loan was borrowed for constructing wells for improvement in the potentiality of the lands bearing Survey Nos. 167 and 170. It was submitted that these lands, for the improvement of which the loan was borrowed, were not joint family property. There again, a reference may be made to the admission of the plaintiffs in plaint Ext. 37 which also includes lands bearing Survey Nos. 167 and 170 being described by the plaintiffs themselves as joint family property. The High Court held that Dattatraya borrowed the loan for improvement of the land. Therefore, Dattatraya, the father, borrowed loan in his capacity as the father for improvement of joint family lands and for this purpose offered as security three other pieces of land which were joint family property. In the face of this unimpeachable evidence the statement in Ext. 128, the application for loan, that Dattatraya was the full owner of the lands therein mentioned would not convey the idea that it was his separate property. It is not necessary that Karta acting in his capacity as Karta to describe himself as Karta to affirm his representative capacity. Whether he has acted in his personal capacity or representative capacity can be gathered from all the surrounding circumstances and in this case they are eloquent, in that he mortgaged or gave as collateral security joint family property, to wit land, and it extends to whole of the interest of the family and is not confined to Kartas share, and therefore, he must be deemed to have acted in the transaction on behalf of the family (see Mullas Hindu Law, 14th Edn., page 313, Art. 251). It was, however, stated that agriculture was not the avocation of the joint family and, therefore, the father as the Karta did not have the implied authority to borrow loan so to be binding on the joint family property. One has merely to look at the content of the application for loan, Ext. 129 made by Dattatraya to the Mamlatdar, Taluka Vichitragad, for advancing loan to him, to dispel the contention. The application recites that applicant Dattatraya, the father had undertaken extensive work to bring barren land under cultivation to raise sufficient crops as well as to improve the quality of Land and for improving the quality of agriculture he had undertaken, loans should be advanced to him. Mr. Bal, however, pointed out that Dattatraya was carrying on some business which would be evident from Ext. 23, a copy of execution application No. 87/60 filed by Bhor State Bank Ltd., against one Pandurang Krishnaji Kamble and Dattatraya Govind Kulkarni in which the occupation of Dattatraya is shown as business; and Ext. 22 being a copy of Execution Application No. 92/57 in which his occupation is shown as general agent, and Ext. 120 a copy of the decree in Special Civil Suit No. 2/49 wherein the occupation of Dattatraya is shown as business and which further shows that Dattatraya had running account with one Raghunath Shridhar Phadke in which Dattatraya had withdrawn Rs. 56, 800/- and had credited Rs. 41, 000/- and after adding interest leaving a debit balance of Rs. 19, 238-14-00. It was urged that if all these aspects are taken into consideration, it would appear that agriculture was not the occupation of the joint family. Now, as against this, one may also refer to Ext. 24 a copy of the BADR Execution Application No. 294/56 for executing an Award made under the Bombay Agricultural Debtors Relief Act against Dattatraya which would show that Dattatraya was an agriculturist by occupation and his debts were adjusted by the Courts set up under the Bombay Agriculture Debtors Relief Act and this could have only been done if his principal occupation was agriculture. Therefore, mere description of Dattatrayas avocation in Exts. 22, 23 and 120 is hardly determinative of the occupation of Dattatraya or his family. It may be that over and above agriculture Dattatraya may have been carrying on some side business but if his application Ext. 129 shows that he had on his own showing 160 bighas of land most of which are admittedly shown to be joint family property, it cannot be denied that agriculture was on e of the occupations of Dattatraya and he was carrying on that avocation as Karta of the joint family consisting of himself and his minor sons. Now, if agriculture was one of the occupations of the joint family and if loan was borrowed for the purpose of improving the joint family lands, the loan would ipso facto be for legal necessity and it would be joint family debt for which all the joint family property would be liable.If thus the loan for the recovery of which the suit property was brought to auction was joint family debt and if the suit property was joint family property, certainly it would be liable to be sold for recovery of joint family debtThe partition is evidenced by a registered deed, Ext. 79 dated 6th July 1956. Partition is between father and his minor sons. There is no dispute that on that date the debt of Tagai loan was outstanding as well as there were certain other debts. In the partition deed Ext. 79 there is no express or implied provision for the repayment of joint family debts or even outstanding debts of Dattatraya, the father. There was some suggestion that the property which was allotted to Dattatraya was sufficient for discharging the debts outstanding on the date of partition. That at least is not borne out by the partition deed nor has Dattatraya gone into the witness box to say that such was the position. Therefore, taking into consideration the recitals in the partition deed as well as the relevant evidence on record the position is clear that no provision was made at the time of partition for the joint family debts or alternatively outstanding debts incurred by the father. It is not for a moment suggested that on this account the partition is bogus and sham , an argument which was put forward before the High Court and negatived. The substance of the matter is that if at a partition amongst the members of the joint family no provision is made for joint family debts, then despite the partition and allotment of shares to different coparceners the joint family property in their hands which they acquired by partition would still be liable for the joint family debts. The Judicial Committee in Sat Narain v. Das(1), pointed out that when the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable. After affirming this ratio, this Court in Pannalal &Anr. v. Mst Naraini &Ors.(2) observed as. the right thing to do was to make provision for discharge of such liability when there was partition of the joint estate. If there is no such provision, "the debts are to be paid severally by all the sons according to their shares of inheritance", as enjoined by Vishnu (Vishnu, Chap. 6, verse 36). In our opinion, this is the proper view to take regarding the liability of the sons under Hindu law for the pre-partition debts of the father. The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place. This is substantially the view taken by the Allahabad High Court in the Full Bench case referred to above and it seems to us to be perfectly in accord with the principles of equity and justice"If thus the partition makes no provision for repayment of just debts payable out of the joint family property, the joint family property in the hands of coparceners acquired on partition as well as the pious obligation of the sons to pay the debts of the father will still remainThis position of law was reaffirmed in Vriddhachalam Pillai v. Shaldean Syriam Bank Ltd. &Anr.(1). The only effect of partition is that after the disruption of joint family status by partition the father has no right to deal with the property by sale or mortgage even to discharge an antecedent debt nor is the son under a legal obligation to discharge the post-partition debts of the fatherAssuming we are not right in holding that the debt, was for the benefit of the estate of the joint family and, therefore, a joint family debt, and assuming that Mr. Bal is right in contending that it was the personal debt of the father, yet the doctrine of pious obligation of the son to pay the fathers debt would still permit the creditor to bring the whole joint family property to auction for recovery of such debts. Where the sons are joint with their father and debt have been contracted by the father for his personal benefit, the sons are liable to pay the debts provided they were not incurred for an illegal or immoral purpose. This liability t o pay the debt has been described as pious obligation of the son to pay the fathers debt not tainted with illegality or immorality. It was once believed that the liability of the son to pay the debts contracted by the father, though for his own bene fit, arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara law to discharge the fathers debts, where the debts are not tainted with immorality, yet in course of time this liability has passed into the realm of law.In Anthonyswamy v. M. R. Chinnaswamy Koundan (dead) by l.r.s. &Ors.(1), following the decision in Muttayan v. Zamindar of Sivagiri(2), this Court held that this obligation of the son to pay the fathers debt not tained with illegality or immorality was not religious but a legal obligation and the rule would operate not only after the fathers death but even in the fathers life time and the pertinent observation is as under:"It is evident therefore that the doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a s hare of the ancestral property and both these conceptions are correlated. The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu law but is a salutary counter balance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property"It is not the case of the plaintiffs that the debt contracted by the father for which the property was sold was tainted with illegality or immorality or that it was ayyravaharik in the sense opposed to good morals. Therefore, even assuming that there was a partition, the debt being antecedent debt for which no provision was made in the partition and the debt having not been shown to be tainted with illegality or immorality, the sons were liable to pay this debt to the extent the joint family property came in their handsViewed from either angle, the property sold w as liable for the discharge of the debt of Dattatraya, the father, and even if it came in the hands of the sons on partition, the debt admittedly being a pre-partition debt not shown to be tainted with illegality or immorality, could be recovered from the joint family property in the hands of the sons.Mr. Bal, however, raised an interesting contention that if the joint family property which came in the hands of the sons on partition was to be sold for recovery of the debt of the father after partition a suit would have to be filed by the creditor and if the property in the hands of the son was to be made liable for discharge of the debt, the sons ought to be joined as parties to the suit because only in such an event the sons could set up the defence of the debt being tainted with illegality or immorality. Where a revenue sale takes place, it was said, the sons would have no opportunity to contest the character of the debt, and, therefore, any sale in such circumstances, of the property that has fallen to the shares of the sons at a partition, subsequent to the partition would be void as against the sons. In support of the submission reliance was placed on an observation in Pannallals case (supra) that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the sons and that a separate and independent suit must be filed against the sons before their shares can be re ached. After observing that a son is liable even after partition for the pre-partition debts of his father which are not immoral or illegal, this Court proceeded to examine the question as to how this liability is to be enforced by the creditor, either during the life time of the father or after his death. After taking note of a large number of decisions in which it was held that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allocated to the sons on partition and a separate and independent suit must be instituted against the sons before their shares can be reached, it was held that the principle underlying these decisions is sound. This Court approved the decision in Jagnarayan v. Somaji (1). It may be noted that decree for the pre-partition debt was made after partition when in the suit father after partition could not represent the sons. This very question again came up before this Court in S. M. Jakati &Anr. v. S. M. Borkar &Ors.(2) In that case the Deputy Registrar of Co-operative Societies had made an order against Mr. Jakati for realisation of the amount and an item of property belonging to the joint family of Jakati was attached by the Collector and duly brought to sale under s. 155 of the Bombay Land Revenue Code. The sale was held on 2nd February, 1943 and confirmed on 23rd June, 1943. In the meantime. On January 15, 1943, one of the sons of Jakati inst ituted a suit for partition and separate possession of his share in the joint family property and contended inter alia that the sale in favour of the first respondent was not binding on the joint family. If the order of the Deputy Registrar was t o be treated as a decree, the sale under s. 155 of the Bombay Land Revenue Act being execution of that decree, was after the institution of the suit for partition and therefore it was contended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even though the sale was of a whole estate including the interest of the sons, because after the partition the father no longer possessed the power to sell the shares of sons to discharge his debts. Negativing this contention it was held ast this contention ignores the doctrine of pious obligation of the sons. The right of the pre-partition creditor to seize the property of the erstwhile joi nt family in execution of his decree is not dependant upon the fathers power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition. The consequence is that as between the sons right to take a vested interest jointly with their father in their ancestral estate and the remedy of the fathers creditor to seize the whole of the estate for payment of his debt not contracted for immoral or illegal purpose, the latter will prevail and the sons are precluded from setting up their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable for the debts of the father. Therefore where the joint ancestral property including the share of the sons has passed out of the family in execution of the decree on the fathers debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons attack, because even after the partition their share remains liable"The loan can be recovered from the borrower as if it were an arrear of land revenue due by him or from his surety by the same procedure or out of the land for the benefit of which the loan has been granted by following the same procedure or out of the property comprising as collateral security, if any, according to the procedure for realisation of land revenue by sale of immovable property or by the sale of immovable property other than the land on which the land revenue is due. Now the word borrower is not defined. Could it be said that a borrower for the purpose of s. 7 can be an individual and no other person ? The High Court observed that the Act is applicable to all communities in India and not merely to Hindus and there are many communities which do not have the system of joint family and if the legislature intended to include in the word borrower manager of a family, it should have said so in express terms. There is nothing in the language of s. 7 which would show that the borrower must always and of necessity be an individual. Even if the Act applies to other communities which do not have the system of joint family, that by itself would not exclude the manager of a joint Hindu family from becoming a borrower under s. 7. If the construction as suggested by the High Court is accepted it would put joint Hindu family at a disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family, if he has no separate property of his own, and if he cannot borrow the loan in his representative capacity, has no security to offer, nor could he take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family. We see no justification for restricting the word borrower to be an individual alone. In fact the Act itself contemplates joint borrowers. Section 9 provides for joint and several liability of joint borrowers. A Karta of a joint Hindu family therefore can be a borrower in his representative capacity. If the Karta of a joint Hindu family is considered eligible for becoming a borrower would it run counter to the position of other communities in which there is no concept of a joint family and joint family properties ? In t he absence of any such concept a borrower other than a Hindu can offer all the property at his disposal even if he has not sons, as security for the loan to be borrowed because in other communities governed by their personal laws the s on does not acquire interest in the ancestral properties in the hand of the father from the time of his birth. But in Hindu law there are two seemingly contrary but really complimentary principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their fathers debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts (see Jakatis case) (Supra). Now, if the sons of a Hindu father take interest in the ancestral property in the hands of the father by the incident of birth, they also incur the corresponding obligation of discharging the debts incurred by the father either for his own benefit or for the benefit of the joint family from the property in which the sons take interest by birth. Such a concept being absent in communities not governed by Hindu law in this behalf, the father would be free to encumber the property and the sons in such communities would neither get interest by birth nor the liability to pay the fathers debt and would not be able to challenge the sale or property for discharge of the debt incurred by the father. Therefore, the expression borrower in s. 7 need not be given a restricted meaning merely because the Act applies to all communities. Hence a father who is the Karta of the joint family consisting of himself and his sons can become a borrower in his capacity as Karta and if the loan is for legal necessity or for the benefit of the joint family estate he would render the joint family property liable for such debt and if it is for his personal benefit the joint family property even in the hands of the sons would be liable if the debt is not tainted with illegality or immorality. The High Court said that such liability which arises from the obligation of religion and piety cannot be extended to the loans borrowed under the Loans Act because there is no such obligation in other communities to which the Act applies. In reaching this conclusion the High Court overlooked the principle that this doctrine of pious obligation is not merely a religious duty but has passed into the realm of law (see Anthonyswamy), (supra). On the facts of that case this principle was applied to parties belonging to Tamil Vannian Christians. Viewed from this angle, the High Court was in error in holding that Dharmashastras of Hindus never contemplated improvement loans being given by the Governments of the day which were usually monarchies and, therefore, a debt of the kind which is contemplated under the Loans Act could never have been under the contemplation of the writers like Brihaspati and Narada in whose texts the pious liability is imposed on the sons and others. It is not possible to subscribe to this view for the reasons hereinbefore mentioned. The decisions in Sankaran Nambudripad v. Ramaswami Ayyar, (1) and Chinnasami Mudaliar v. Tirumalai Pillai, (2) do not touch the question herein raised and are of no assistance in the matter.It, therefore, clearly transpires that Dattatraya ha d borrowed a loan from the Government under the Loans Act for the benefit of joint family property. It was being recovered as arrears of land revenue. The property which is the subject-matter of dispute in this proceeding was joint family property . It was sold at a revenue auction and the whole of the property was sold and the whole of it was purchased by the purchaser. The debt of Tagai loan for which the property was sold is not shown to be tainted with illegality or immorality or avyavaharik. Therefore, the suit property was liable to be sold at court auction for two reasons, one that the debt was joint family debt for the benefit of the joint family estate and, therefore, all segments of the joint family property were liable for the discharge of the debt, and secondly, under the doctrine of pious obligation of the sons to pay the fathers debt. In the present proceedings no attempt was made to establish that the debt was tainted with illegality or immorality. Therefore , the sale is valid and the purchaser acquired a full and complete title to the property. The sale is not voidPart of the property is acquired and the compensation is taken by the plaintiffs subject to the orders of the Court. | 1 | 9,213 | 4,619 | ### Instruction:
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manager of a joint Hindu family from becoming a borrower under s. 7. If the construction as suggested by the High Court is accepted it would put joint Hindu family at a disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family, if he has no separate property of his own, and if he cannot borrow the loan in his representative capacity, has no security to offer, nor could he take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family. We see no justification for restricting the word borrower to be an individual alone. In fact the Act itself contemplates joint borrowers. Section 9 provides for joint and several liability of joint borrowers. A Karta of a joint Hindu family therefore can be a borrower in his representative capacity. If the Karta of a joint Hindu family is considered eligible for becoming a borrower would it run counter to the position of other communities in which there is no concept of a joint family and joint family properties ? In t he absence of any such concept a borrower other than a Hindu can offer all the property at his disposal even if he has not sons, as security for the loan to be borrowed because in other communities governed by their personal laws the s on does not acquire interest in the ancestral properties in the hand of the father from the time of his birth. But in Hindu law there are two seemingly contrary but really complimentary principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their fathers debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts (see Jakatis case) (Supra). Now, if the sons of a Hindu father take interest in the ancestral property in the hands of the father by the incident of birth, they also incur the corresponding obligation of discharging the debts incurred by the father either for his own benefit or for the benefit of the joint family from the property in which the sons take interest by birth. Such a concept being absent in communities not governed by Hindu law in this behalf, the father would be free to encumber the property and the sons in such communities would neither get interest by birth nor the liability to pay the fathers debt and would not be able to challenge the sale or property for discharge of the debt incurred by the father. Therefore, the expression borrower in s. 7 need not be given a restricted meaning merely because the Act applies to all communities. Hence a father who is the Karta of the joint family consisting of himself and his sons can become a borrower in his capacity as Karta and if the loan is for legal necessity or for the benefit of the joint family estate he would render the joint family property liable for such debt and if it is for his personal benefit the joint family property even in the hands of the sons would be liable if the debt is not tainted with illegality or immorality. The High Court said that such liability which arises from the obligation of religion and piety cannot be extended to the loans borrowed under the Loans Act because there is no such obligation in other communities to which the Act applies. In reaching this conclusion the High Court overlooked the principle that this doctrine of pious obligation is not merely a religious duty but has passed into the realm of law (see Anthonyswamy), (supra). On the facts of that case this principle was applied to parties belonging to Tamil Vannian Christians. Viewed from this angle, the High Court was in error in holding that Dharmashastras of Hindus never contemplated improvement loans being given by the Governments of the day which were usually monarchies and, therefore, a debt of the kind which is contemplated under the Loans Act could never have been under the contemplation of the writers like Brihaspati and Narada in whose texts the pious liability is imposed on the sons and others. It is not possible to subscribe to this view for the reasons hereinbefore mentioned. The decisions in Sankaran Nambudripad v. Ramaswami Ayyar, (1) and Chinnasami Mudaliar v. Tirumalai Pillai, (2) do not touch the question herein raised and are of no assistance in the matter.It, therefore, clearly transpires that Dattatraya ha d borrowed a loan from the Government under the Loans Act for the benefit of joint family property. It was being recovered as arrears of land revenue. The property which is the subject-matter of dispute in this proceeding was joint family property . It was sold at a revenue auction and the whole of the property was sold and the whole of it was purchased by the purchaser. The debt of Tagai loan for which the property was sold is not shown to be tainted with illegality or immorality or avyavaharik. Therefore, the suit property was liable to be sold at court auction for two reasons, one that the debt was joint family debt for the benefit of the joint family estate and, therefore, all segments of the joint family property were liable for the discharge of the debt, and secondly, under the doctrine of pious obligation of the sons to pay the fathers debt. In the present proceedings no attempt was made to establish that the debt was tainted with illegality or immorality. Therefore , the sale is valid and the purchaser acquired a full and complete title to the property. The sale is not void. 18. Part of the property is acquired and the compensation is taken by the plaintiffs subject to the orders of the Court. 19.
### Response:
1
### Explanation:
not exclude the manager of a joint Hindu family from becoming a borrower under s. 7. If the construction as suggested by the High Court is accepted it would put joint Hindu family at a disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family, if he has no separate property of his own, and if he cannot borrow the loan in his representative capacity, has no security to offer, nor could he take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family. We see no justification for restricting the word borrower to be an individual alone. In fact the Act itself contemplates joint borrowers. Section 9 provides for joint and several liability of joint borrowers. A Karta of a joint Hindu family therefore can be a borrower in his representative capacity. If the Karta of a joint Hindu family is considered eligible for becoming a borrower would it run counter to the position of other communities in which there is no concept of a joint family and joint family properties ? In t he absence of any such concept a borrower other than a Hindu can offer all the property at his disposal even if he has not sons, as security for the loan to be borrowed because in other communities governed by their personal laws the s on does not acquire interest in the ancestral properties in the hand of the father from the time of his birth. But in Hindu law there are two seemingly contrary but really complimentary principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their fathers debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts (see Jakatis case) (Supra). Now, if the sons of a Hindu father take interest in the ancestral property in the hands of the father by the incident of birth, they also incur the corresponding obligation of discharging the debts incurred by the father either for his own benefit or for the benefit of the joint family from the property in which the sons take interest by birth. Such a concept being absent in communities not governed by Hindu law in this behalf, the father would be free to encumber the property and the sons in such communities would neither get interest by birth nor the liability to pay the fathers debt and would not be able to challenge the sale or property for discharge of the debt incurred by the father. Therefore, the expression borrower in s. 7 need not be given a restricted meaning merely because the Act applies to all communities. Hence a father who is the Karta of the joint family consisting of himself and his sons can become a borrower in his capacity as Karta and if the loan is for legal necessity or for the benefit of the joint family estate he would render the joint family property liable for such debt and if it is for his personal benefit the joint family property even in the hands of the sons would be liable if the debt is not tainted with illegality or immorality. The High Court said that such liability which arises from the obligation of religion and piety cannot be extended to the loans borrowed under the Loans Act because there is no such obligation in other communities to which the Act applies. In reaching this conclusion the High Court overlooked the principle that this doctrine of pious obligation is not merely a religious duty but has passed into the realm of law (see Anthonyswamy), (supra). On the facts of that case this principle was applied to parties belonging to Tamil Vannian Christians. Viewed from this angle, the High Court was in error in holding that Dharmashastras of Hindus never contemplated improvement loans being given by the Governments of the day which were usually monarchies and, therefore, a debt of the kind which is contemplated under the Loans Act could never have been under the contemplation of the writers like Brihaspati and Narada in whose texts the pious liability is imposed on the sons and others. It is not possible to subscribe to this view for the reasons hereinbefore mentioned. The decisions in Sankaran Nambudripad v. Ramaswami Ayyar, (1) and Chinnasami Mudaliar v. Tirumalai Pillai, (2) do not touch the question herein raised and are of no assistance in the matter.It, therefore, clearly transpires that Dattatraya ha d borrowed a loan from the Government under the Loans Act for the benefit of joint family property. It was being recovered as arrears of land revenue. The property which is the subject-matter of dispute in this proceeding was joint family property . It was sold at a revenue auction and the whole of the property was sold and the whole of it was purchased by the purchaser. The debt of Tagai loan for which the property was sold is not shown to be tainted with illegality or immorality or avyavaharik. Therefore, the suit property was liable to be sold at court auction for two reasons, one that the debt was joint family debt for the benefit of the joint family estate and, therefore, all segments of the joint family property were liable for the discharge of the debt, and secondly, under the doctrine of pious obligation of the sons to pay the fathers debt. In the present proceedings no attempt was made to establish that the debt was tainted with illegality or immorality. Therefore , the sale is valid and the purchaser acquired a full and complete title to the property. The sale is not voidPart of the property is acquired and the compensation is taken by the plaintiffs subject to the orders of the Court.
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Rajiv Modi Vs. Sanjay Jain | be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations." (Para 4) 26) This Court in the case of V.C. Shukla v. State through CBI, 1980 Supp SCC 92, it was observed that : "it is the duty of the court to apply its judicial mind to the materials and come to a clear conclusion that a prima facie case has been made out on the basis of which it would be justified in framing charges." (Para 8) 27) Also in the case of Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I,(2004) 9 SCC 512 , it was observed that: "Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed." (Para 139) "In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown." (Para 151) 28) In Vijai Pratap Singh v. Dukh Haran Nath Singh,1962 Supp (2) SCR 675, this Court held that: "If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the statute, the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown: the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit." (Para 9) 29) In view of the above principles, the Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, it can certainly take cognizance of the complaint. There is no need to ascertain that the allegations made are true in fact. 30) The only question, which remains to be considered, is, whether the Judicial Magistrate, Patna had the jurisdiction to take cognizance of the complaint? 31) It is argued that the appointment of the appellants company as C&F Agent of the respondents company was agreed upon in Patna and the Letter of Appointment was also delivered at the address of the in-laws house of the appellant in Patna and therefore, it can be said that part of cause of action prima facie appears to have arisen in Patna. Therefore, Judicial Magistrate, Patna was justified in taking cognizance complaint and issuing process to the respondents. 32) In view of the above, in our considered opinion, the High Court has erred by going into merits of the case and deciding doubtful or complicated questions of law and fact while invoking its powers under Section 482 of Cr.P.C. This is not the fit case where the High Court could have exercised its inherent powers under section 482 of the Code.33) The cardinal principles which requires to be kept in view while invoking powers under Section 482 of Cr.P.C. has been stated in the case of State of H.P. v. Pirthi Chand, (1996) 2 SCC 37 , where in this Court has observed that: "When the court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court." (Para 13) "It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge- sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance, the court may embark upon the consideration thereof and exercise the power." (Para 12) | 1[ds]In this case, it is observed, that, the jurisdiction of the courts depended in civil cases on a "cause of action" giving rise to a civil liability, and in criminal cases on the commission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevantIn view of the above principles, the Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, it can certainly take cognizance of the complaint. There is no need to ascertain that the allegations made are true inIn view of the above, in our considered opinion, the High Court has erred by going into merits of the case and deciding doubtful or complicated questions of law and fact while invoking its powers under Section 482 of Cr.P.C. This is not the fit case where the High Court could have exercised its inherent powers under section 482 of the Code.33) The cardinal principles which requires to be kept in view while invoking powers under Section 482 of Cr.P.C. has been stated in the case of State of H.P. v. Pirthi Chand, (1996) 2 SCC 37 , where in this Court has observedthe court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court." (Parais thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/chargesheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and theis laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of theAt that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect ofIt would be done after the trial is concluded. The court has to prima facie consider from the averments in theand the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash theBut only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance, the court may embark upon the consideration thereof and exercise the power." (Para | 1 | 4,078 | 561 | ### Instruction:
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be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations." (Para 4) 26) This Court in the case of V.C. Shukla v. State through CBI, 1980 Supp SCC 92, it was observed that : "it is the duty of the court to apply its judicial mind to the materials and come to a clear conclusion that a prima facie case has been made out on the basis of which it would be justified in framing charges." (Para 8) 27) Also in the case of Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I,(2004) 9 SCC 512 , it was observed that: "Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed." (Para 139) "In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown." (Para 151) 28) In Vijai Pratap Singh v. Dukh Haran Nath Singh,1962 Supp (2) SCR 675, this Court held that: "If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the statute, the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown: the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit." (Para 9) 29) In view of the above principles, the Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, it can certainly take cognizance of the complaint. There is no need to ascertain that the allegations made are true in fact. 30) The only question, which remains to be considered, is, whether the Judicial Magistrate, Patna had the jurisdiction to take cognizance of the complaint? 31) It is argued that the appointment of the appellants company as C&F Agent of the respondents company was agreed upon in Patna and the Letter of Appointment was also delivered at the address of the in-laws house of the appellant in Patna and therefore, it can be said that part of cause of action prima facie appears to have arisen in Patna. Therefore, Judicial Magistrate, Patna was justified in taking cognizance complaint and issuing process to the respondents. 32) In view of the above, in our considered opinion, the High Court has erred by going into merits of the case and deciding doubtful or complicated questions of law and fact while invoking its powers under Section 482 of Cr.P.C. This is not the fit case where the High Court could have exercised its inherent powers under section 482 of the Code.33) The cardinal principles which requires to be kept in view while invoking powers under Section 482 of Cr.P.C. has been stated in the case of State of H.P. v. Pirthi Chand, (1996) 2 SCC 37 , where in this Court has observed that: "When the court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court." (Para 13) "It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge- sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance, the court may embark upon the consideration thereof and exercise the power." (Para 12)
### Response:
1
### Explanation:
In this case, it is observed, that, the jurisdiction of the courts depended in civil cases on a "cause of action" giving rise to a civil liability, and in criminal cases on the commission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevantIn view of the above principles, the Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, it can certainly take cognizance of the complaint. There is no need to ascertain that the allegations made are true inIn view of the above, in our considered opinion, the High Court has erred by going into merits of the case and deciding doubtful or complicated questions of law and fact while invoking its powers under Section 482 of Cr.P.C. This is not the fit case where the High Court could have exercised its inherent powers under section 482 of the Code.33) The cardinal principles which requires to be kept in view while invoking powers under Section 482 of Cr.P.C. has been stated in the case of State of H.P. v. Pirthi Chand, (1996) 2 SCC 37 , where in this Court has observedthe court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court." (Parais thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/chargesheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and theis laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of theAt that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect ofIt would be done after the trial is concluded. The court has to prima facie consider from the averments in theand the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash theBut only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance, the court may embark upon the consideration thereof and exercise the power." (Para
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Seth Badri Prasad And Others Vs. Seth Nagarmal And Others | formation was in contravention of sub-s. (2) of S. 4 of the Indian Companies Act. The lower court granted the decree asked for and this was affirmed in appeal by the High Court. The learned Judges referred to the decision in Sheppard v. Oxenford, (1855) 1 K and J 491 : 69 E R 552) and Butt v. Monteaux, (1854) 1 K and J 98 : 69 ER 385, and rested their decision on the following passage of "Lindley on Partnership" (the learned Judges quoted the passage at p. 145 of the 9th edition but the same passage will be found at pp. 148-149 of the 11th edition): "Although, therefore, the subscribers to an illegal company have not a right to an account of the dealings and transactions of the company and of the profits made thereby, they have a right to have their subscriptions returned; and the necessary account taken; and even though the moneys subscribed have been laid out in the purchase of land and other things for the purpose of the company the subscribers are entitled to have that land and those things reconverted into money, and to have it applied as far as it will go in payment of the debts and liabilities of the concern, and then in repayment of the subscriptions. In such cases no illegal contract is sought to be enforced, on the contrary, the continuance of what is illegal is sought it to be prevented." We do not think that the decision aforesaid, be it correct or otherwise, is of any help to the appellants in the present case. The appellants herein have not asked for a return or refund of their subscriptions; on the contrary, they have asked for a rendition of accounts in enforcement of an illegal contract of partnership. The reliefs they have asked for necessarily imply a recognition by the court that an association exists of which accounts ought to be taken. When the association is itself illegal, a court cannot assist the plaintiffs in getting accounts made so that they may have their full share of the profits made by the illegal association. The principles which must apply in the present case are those referred to in the following passage at p. 145 of Lindley on Partnership (11th edition): "The most important consequence, however, of illegality in a contract of partnership is that the members of the partnership have no remedy against each other for contribution or apportionment in respect of the partnership dealings and transactions. However ungracious and morally reprehensible it may be for a person who has been engaged with another in various dealings and transactions to set up their illegality as a defence to a claim by that other for an account and payment of his share of the profits" made thereby, such a defence must be showed to prevail in a court of justice. Were it not so, those who-ex hypothesi-have been guilty of breach of the law, would obtain the aid of the law in enforcing demands arising out of that very breach; and not only would all laws be infringed with impunity, but, what is worse, their very infringement would become a ground for obtaining relief from those whose business it is to enforce them. For these reasons, therefore, and not from any greater favour to one party to an illegal transaction than to his companions, if proceedings are instituted by one member o an illegal partnership against another in respect of the partnership transactions, it is competent to the defendant to resist the proceedings on the ground of illegality." It is true that in order that illegality may be a defence, it must affect the contract on which the plaintiff is compelled to rely so as to make out his right to what he asks. It by no means follows that whenever money has been obtained in breach of some law, the person in possession of such money is entitled to keep it in his pocket. If money is paid by A to B to be applied by him for some illegal purpose, it is competent for A to require B to hand back the money if B has not already parted with it and the illegal purpose has not been carried out: see Greenberg v. Cooperstein, (1926) 1 Ch 657. The case before us stands on a different footing.It is a claim by some members of an illegal association against another member on the footing that the association should be treated as legal in order to give rise to a liability to render accounts in respect of the transactions of the association. Such a claim is clearly untenable. Where a plaintiff comes to court on allegations which on the face of them show that the contract of partnership on which he sues is illegal, the only course for the courts to pursue is to say that he is ant entitled to any relief on the allegations made as the courts cannot adjudicate in respect of contracts which the law declares to be illegal: Senaji Kapurchand v. Pannaji Devichand, A I R 1930 P C 300.The same view which we think is correct, was expressed in Kumaraswami v. Chinuathambi, ILR (1951) Mad 593; AIR 1951 Mad 291 ). 8. As to the last contention of learned counsel for the appellants, based on the analogy of S. 69(3)(a) of the Partnership Act, it is enough to point out that under the Indian Partnership Act, 1932 an unregistered firm is not illegal;there is no direct compulsion that a partnership firm must be registered, though the disabilities consequent on non-registration may be extremely inconvenient. Moreover, the suit before us was not one for accounts of a dissolved firm, but for accounts of an illegal association which was in existence at the relevant period for which accounts were asked. We do not think that the argument by analogy it of any help to the appellants; in our opinion, the analogy does not really apply. | 1[ds]7. The case before us stands on a different footing.It is a claim by some members of an illegal association against another member on the footing that the association should be treated as legal in order to give rise to a liability to render accounts in respect of the transactions of the association. Such a claim is clearly untenable. Where a plaintiff comes to court on allegations which on the face of them show that the contract of partnership on which he sues is illegal, the only course for the courts to pursue is to say that he is ant entitled to any relief on the allegations made as the courts cannot adjudicate in respect of contracts which the law declares to be illegal: Senaji Kapurchand v. Pannaji Devichand, A I R 1930 P C 300.The same view which we think is correct, was expressed in Kumaraswami v. Chinuathambi, ILR (1951) Mad 593; AIR 1951 Mad 291 )8. As to the last contention of learned counsel for the appellants, based on the analogy of S. 69(3)(a) of the Partnership Act, it is enough to point out that under the Indian Partnership Act, 1932 an unregistered firm is not illegal;there is no direct compulsion that a partnership firm must be registered, though the disabilities consequent on non-registration may be extremely inconvenient | 1 | 3,360 | 250 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
formation was in contravention of sub-s. (2) of S. 4 of the Indian Companies Act. The lower court granted the decree asked for and this was affirmed in appeal by the High Court. The learned Judges referred to the decision in Sheppard v. Oxenford, (1855) 1 K and J 491 : 69 E R 552) and Butt v. Monteaux, (1854) 1 K and J 98 : 69 ER 385, and rested their decision on the following passage of "Lindley on Partnership" (the learned Judges quoted the passage at p. 145 of the 9th edition but the same passage will be found at pp. 148-149 of the 11th edition): "Although, therefore, the subscribers to an illegal company have not a right to an account of the dealings and transactions of the company and of the profits made thereby, they have a right to have their subscriptions returned; and the necessary account taken; and even though the moneys subscribed have been laid out in the purchase of land and other things for the purpose of the company the subscribers are entitled to have that land and those things reconverted into money, and to have it applied as far as it will go in payment of the debts and liabilities of the concern, and then in repayment of the subscriptions. In such cases no illegal contract is sought to be enforced, on the contrary, the continuance of what is illegal is sought it to be prevented." We do not think that the decision aforesaid, be it correct or otherwise, is of any help to the appellants in the present case. The appellants herein have not asked for a return or refund of their subscriptions; on the contrary, they have asked for a rendition of accounts in enforcement of an illegal contract of partnership. The reliefs they have asked for necessarily imply a recognition by the court that an association exists of which accounts ought to be taken. When the association is itself illegal, a court cannot assist the plaintiffs in getting accounts made so that they may have their full share of the profits made by the illegal association. The principles which must apply in the present case are those referred to in the following passage at p. 145 of Lindley on Partnership (11th edition): "The most important consequence, however, of illegality in a contract of partnership is that the members of the partnership have no remedy against each other for contribution or apportionment in respect of the partnership dealings and transactions. However ungracious and morally reprehensible it may be for a person who has been engaged with another in various dealings and transactions to set up their illegality as a defence to a claim by that other for an account and payment of his share of the profits" made thereby, such a defence must be showed to prevail in a court of justice. Were it not so, those who-ex hypothesi-have been guilty of breach of the law, would obtain the aid of the law in enforcing demands arising out of that very breach; and not only would all laws be infringed with impunity, but, what is worse, their very infringement would become a ground for obtaining relief from those whose business it is to enforce them. For these reasons, therefore, and not from any greater favour to one party to an illegal transaction than to his companions, if proceedings are instituted by one member o an illegal partnership against another in respect of the partnership transactions, it is competent to the defendant to resist the proceedings on the ground of illegality." It is true that in order that illegality may be a defence, it must affect the contract on which the plaintiff is compelled to rely so as to make out his right to what he asks. It by no means follows that whenever money has been obtained in breach of some law, the person in possession of such money is entitled to keep it in his pocket. If money is paid by A to B to be applied by him for some illegal purpose, it is competent for A to require B to hand back the money if B has not already parted with it and the illegal purpose has not been carried out: see Greenberg v. Cooperstein, (1926) 1 Ch 657. The case before us stands on a different footing.It is a claim by some members of an illegal association against another member on the footing that the association should be treated as legal in order to give rise to a liability to render accounts in respect of the transactions of the association. Such a claim is clearly untenable. Where a plaintiff comes to court on allegations which on the face of them show that the contract of partnership on which he sues is illegal, the only course for the courts to pursue is to say that he is ant entitled to any relief on the allegations made as the courts cannot adjudicate in respect of contracts which the law declares to be illegal: Senaji Kapurchand v. Pannaji Devichand, A I R 1930 P C 300.The same view which we think is correct, was expressed in Kumaraswami v. Chinuathambi, ILR (1951) Mad 593; AIR 1951 Mad 291 ). 8. As to the last contention of learned counsel for the appellants, based on the analogy of S. 69(3)(a) of the Partnership Act, it is enough to point out that under the Indian Partnership Act, 1932 an unregistered firm is not illegal;there is no direct compulsion that a partnership firm must be registered, though the disabilities consequent on non-registration may be extremely inconvenient. Moreover, the suit before us was not one for accounts of a dissolved firm, but for accounts of an illegal association which was in existence at the relevant period for which accounts were asked. We do not think that the argument by analogy it of any help to the appellants; in our opinion, the analogy does not really apply.
### Response:
1
### Explanation:
7. The case before us stands on a different footing.It is a claim by some members of an illegal association against another member on the footing that the association should be treated as legal in order to give rise to a liability to render accounts in respect of the transactions of the association. Such a claim is clearly untenable. Where a plaintiff comes to court on allegations which on the face of them show that the contract of partnership on which he sues is illegal, the only course for the courts to pursue is to say that he is ant entitled to any relief on the allegations made as the courts cannot adjudicate in respect of contracts which the law declares to be illegal: Senaji Kapurchand v. Pannaji Devichand, A I R 1930 P C 300.The same view which we think is correct, was expressed in Kumaraswami v. Chinuathambi, ILR (1951) Mad 593; AIR 1951 Mad 291 )8. As to the last contention of learned counsel for the appellants, based on the analogy of S. 69(3)(a) of the Partnership Act, it is enough to point out that under the Indian Partnership Act, 1932 an unregistered firm is not illegal;there is no direct compulsion that a partnership firm must be registered, though the disabilities consequent on non-registration may be extremely inconvenient
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M/S. India Cine Agencies Vs. Commnr. Of Income Tax, Madras | respect of which the assessee claimed deduction was owned by it and was installed after March 31, 1976, in the assessees industrial undertaking for excavating, mining and processing mineral ore. Mineral ore is not excluded by the Eleventh Schedule. The only question is whether such business is one of manufacture or production of ore. -The issue had arisen before different High Courts over a period of time. The High Courts have held that the activity amounted to "production" and answered the issue in question in favour of the assessee. The High Court of Andhra Pradesh did so in CIT v. Singareni Collieries Co. Ltd. [1996) 221 ITR 48, the Calcutta High Court in Khalsa Brothers v. CIT [1996] 217 TTR 185 and CIT v. Mercantile Construction Co. [1994] 74 Taxman 41 (Cal) and the Delhi High Court in CIT v. Univmine (P.) Ltd, [1993] 202 ITR 825. The Revenue has not questioned any of these decisions, at least not successfully, and the position of law, therefore, was taken as settled.The reasoning given by the High Court, in the decisions noted by us earlier, is, in our opinion, unimpeachable. This court had, as early as in 1961, in Chrestian Mica Industries Ltd. v. State of Bihar [1961] 12 STC 150 , defined the word "Production", albeit, in connection with the Bihar Sales Tax Act, 1947. The definition was adopted from the meaning ascribed to the word in the Oxford English Dictionary as meaning "amongst other things that which is produced; a thing that results from any action, process or effort, a product; a product of human activity or effort". From the wide definition of the word "production", it has to follow that mining activity for the purpose of production of mineral ores would come within the ambit of the word "production" since ore is "a thing", which is the result of human activity or effort. It has also been held by this court in CIT v. N.C. Budharaja and Co. [1993] 204 ITR 412 that the word "production" is much wider than the word "manufacture". It was said (page 423) :"The word ‘production has a wider connotation than the word ‘manufacture. While every manufacture can be characterised as production, every production need not amount to manufacture.The word production or produce when used in juxtaposition with the word manufacture takes in bringing into existence new goods by a process which may or may not amount to manufacture. It also takes in all the by-products, intermediate products and reside rodeos which emerge in the course of manufacture of goods." 10. In "Words and Phrases" 2nd Edn. by Justice R. P. Sethi the expressions ‘produce and ‘production are described as under: "In Websters New International Dictionary, the word "produce" means something that is brought forth either naturally or as a result of effort and work; a result produced. In Blacks Law Dictionary, the meaning of the word ‘produce is to ‘bring into view or notice; to bring to surface. A reading of the aforesaid dictionary meanings of the word ‘produce does indicate that if a living creature is brought forth, it can be said that it is produced. (See Commissioner of Income Tax v. Venkateswara Hatcheries (P) Ltd. (1999 (3) SCC 632 ), Commissioner of Income Tax, Orissa and Ors. v. M/s N.C. Budharaja and Company and Ors. (1994 Supp 1 SCC 280).Production or produce- The word ‘production or ‘produce when used in juxtaposition with the word ‘manufacture takes in bringing into existence new goods by a process, which may or may not amount to manufacture. It also takes in all the byproducts, intermediate products and residual products, which emerge in the course of manufacture of goods. The expressions ‘manufacture and ‘produce are normally associated with movables articles and goods, big and small but they are never employed to denote the construction activity of the nature involved in the construction of a dam or for that matter a bridge, a road and a building. (See Moti Laminates Pvt. Ltd. and Anr. v. Collector of Central Excise, Ahmedabad (1995 (3) SCC 23 )." 11. In Advanced Law Lexicon, 3rd Edn. by P. Ramanatha Aiyar, the expressions ‘production and ‘manufacture are described as under: "Production with its grammatical variations and cognate expressions; includes-(i) packing, labeling, relabelling of containers.(ii) re-packing from bulk packages to retail packages, and(iii) the adoption of any other method to render the product marketable.‘Production in relation to a feature film, includes any of the activities in respect of the making thereof. (Cine Workers and Cinema Theatre Workers (Regulations of Employment) Act (50 of 1981) S.2(i).The word ‘production may designate as well a thing produced as the operation of producing; (as) production of commodities or the production of a witness.‘Manufacture includes any art, process or manner of producing, preparing or making an article and also any article prepared or produced by manufacture. (Patent and Designs Act (2 of 1911), S.2(10).‘Manufacture includes any process-(i) incidental or ancillary to the completion of a manufactured product; and(ii) which is specified in relation to any goods in the section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture, or, and the word ‘manufacturer shall be constructed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods but also any person who engages in their production or manufacturer on his own account.(iii) which is specified in relation to any goods by the Central Government by notification in the Official Gazette as amounting to manufacture. (Central Excise Act (1 of 1944) S.2(f))" 12. The matter can yet be looked from another angle. If there was no manufacturing activity, then the question of referring to Item 10 of the Eleventh Schedule for the purpose of exclusion does not arise. The Eleventh Schedule, which was inserted by Finance (No.2) Act, 1977 w.e.f. 1.4.1978 has reference to Sections 32A, 32AB, 80CC (3)(a)(i), 80-I(2), 80J(4) and 88A (3)(a)(i) of the Act. 13. | 1[ds]The matter can yet be looked from another angle. If there was no manufacturing activity, then the question of referring to Item 10 of the Eleventh Schedule for the purpose of exclusion does not arise. The Eleventh Schedule, which was inserted by Finance (No.2) Act, 1977 w.e.f. 1.4.1978 has reference to Sections 32A, 32AB, 80CC (3)(a)(i), 80-I(2), 80J(4) and 88A (3)(a)(i) of the Act. | 1 | 2,556 | 103 | ### 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:
respect of which the assessee claimed deduction was owned by it and was installed after March 31, 1976, in the assessees industrial undertaking for excavating, mining and processing mineral ore. Mineral ore is not excluded by the Eleventh Schedule. The only question is whether such business is one of manufacture or production of ore. -The issue had arisen before different High Courts over a period of time. The High Courts have held that the activity amounted to "production" and answered the issue in question in favour of the assessee. The High Court of Andhra Pradesh did so in CIT v. Singareni Collieries Co. Ltd. [1996) 221 ITR 48, the Calcutta High Court in Khalsa Brothers v. CIT [1996] 217 TTR 185 and CIT v. Mercantile Construction Co. [1994] 74 Taxman 41 (Cal) and the Delhi High Court in CIT v. Univmine (P.) Ltd, [1993] 202 ITR 825. The Revenue has not questioned any of these decisions, at least not successfully, and the position of law, therefore, was taken as settled.The reasoning given by the High Court, in the decisions noted by us earlier, is, in our opinion, unimpeachable. This court had, as early as in 1961, in Chrestian Mica Industries Ltd. v. State of Bihar [1961] 12 STC 150 , defined the word "Production", albeit, in connection with the Bihar Sales Tax Act, 1947. The definition was adopted from the meaning ascribed to the word in the Oxford English Dictionary as meaning "amongst other things that which is produced; a thing that results from any action, process or effort, a product; a product of human activity or effort". From the wide definition of the word "production", it has to follow that mining activity for the purpose of production of mineral ores would come within the ambit of the word "production" since ore is "a thing", which is the result of human activity or effort. It has also been held by this court in CIT v. N.C. Budharaja and Co. [1993] 204 ITR 412 that the word "production" is much wider than the word "manufacture". It was said (page 423) :"The word ‘production has a wider connotation than the word ‘manufacture. While every manufacture can be characterised as production, every production need not amount to manufacture.The word production or produce when used in juxtaposition with the word manufacture takes in bringing into existence new goods by a process which may or may not amount to manufacture. It also takes in all the by-products, intermediate products and reside rodeos which emerge in the course of manufacture of goods." 10. In "Words and Phrases" 2nd Edn. by Justice R. P. Sethi the expressions ‘produce and ‘production are described as under: "In Websters New International Dictionary, the word "produce" means something that is brought forth either naturally or as a result of effort and work; a result produced. In Blacks Law Dictionary, the meaning of the word ‘produce is to ‘bring into view or notice; to bring to surface. A reading of the aforesaid dictionary meanings of the word ‘produce does indicate that if a living creature is brought forth, it can be said that it is produced. (See Commissioner of Income Tax v. Venkateswara Hatcheries (P) Ltd. (1999 (3) SCC 632 ), Commissioner of Income Tax, Orissa and Ors. v. M/s N.C. Budharaja and Company and Ors. (1994 Supp 1 SCC 280).Production or produce- The word ‘production or ‘produce when used in juxtaposition with the word ‘manufacture takes in bringing into existence new goods by a process, which may or may not amount to manufacture. It also takes in all the byproducts, intermediate products and residual products, which emerge in the course of manufacture of goods. The expressions ‘manufacture and ‘produce are normally associated with movables articles and goods, big and small but they are never employed to denote the construction activity of the nature involved in the construction of a dam or for that matter a bridge, a road and a building. (See Moti Laminates Pvt. Ltd. and Anr. v. Collector of Central Excise, Ahmedabad (1995 (3) SCC 23 )." 11. In Advanced Law Lexicon, 3rd Edn. by P. Ramanatha Aiyar, the expressions ‘production and ‘manufacture are described as under: "Production with its grammatical variations and cognate expressions; includes-(i) packing, labeling, relabelling of containers.(ii) re-packing from bulk packages to retail packages, and(iii) the adoption of any other method to render the product marketable.‘Production in relation to a feature film, includes any of the activities in respect of the making thereof. (Cine Workers and Cinema Theatre Workers (Regulations of Employment) Act (50 of 1981) S.2(i).The word ‘production may designate as well a thing produced as the operation of producing; (as) production of commodities or the production of a witness.‘Manufacture includes any art, process or manner of producing, preparing or making an article and also any article prepared or produced by manufacture. (Patent and Designs Act (2 of 1911), S.2(10).‘Manufacture includes any process-(i) incidental or ancillary to the completion of a manufactured product; and(ii) which is specified in relation to any goods in the section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture, or, and the word ‘manufacturer shall be constructed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods but also any person who engages in their production or manufacturer on his own account.(iii) which is specified in relation to any goods by the Central Government by notification in the Official Gazette as amounting to manufacture. (Central Excise Act (1 of 1944) S.2(f))" 12. The matter can yet be looked from another angle. If there was no manufacturing activity, then the question of referring to Item 10 of the Eleventh Schedule for the purpose of exclusion does not arise. The Eleventh Schedule, which was inserted by Finance (No.2) Act, 1977 w.e.f. 1.4.1978 has reference to Sections 32A, 32AB, 80CC (3)(a)(i), 80-I(2), 80J(4) and 88A (3)(a)(i) of the Act. 13.
### Response:
1
### Explanation:
The matter can yet be looked from another angle. If there was no manufacturing activity, then the question of referring to Item 10 of the Eleventh Schedule for the purpose of exclusion does not arise. The Eleventh Schedule, which was inserted by Finance (No.2) Act, 1977 w.e.f. 1.4.1978 has reference to Sections 32A, 32AB, 80CC (3)(a)(i), 80-I(2), 80J(4) and 88A (3)(a)(i) of the Act.
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M/S. Clough Engineering Limited Vs. Oil & Natural Gas Corporation, A Company Incorporated Under The Companies Act | appointing the officer of the Court to investigate into the facts and get the factual report. This is how the Apex Court has followed its own procedure to deal with the contempt action. In the present matter the appellant is a multinational company and its officers may be either in this country or out of this country. If the officers of appellant are in this country the required information, namely, the names of the officers of appellant and record pertaining to the sale or disposal of machinery would have been investigated either giving directions to police officers. But such course cannot be adopted in this case because the officers allegedly committing contempt and record is located outside the country. Now as a result of the globalization of the business and market, multinational companies are coming to this country along with their officers, they carry on business and/or undertake certain contracts here. When litigation starts in this country and thereby they are under the orders of this Court. But if the officers of said company who are outside the country commit breach of the orders of this court, unless their names have been found or brought before this Court, it will not be possible for this court to deal with the officers of these multinational companies who have flouted the orders passed by this Court. Therefore, this Court cannot be a silent spectator to the fact that the information regarding the names of the alleged contemnor - officers is exclusively with the multinational company and as the company is also one of the contemnors along with them, cannot be forced to disclose the names of its officers. Therefore, even though we find that directly the directions cannot be given to the company probably in view of Article 20(3) of the Constitution, yet it cannot be said that this Court is helpless. On the contrary in view of the inherent powers to punish for the contempt, this Court can provide for its own procedure and machinery to find out the names of the contemnors and to deal with them. In Zahiras case (supra) the Apex Court found the appointment of the Registrar to investigate into the facts under what circumstances Zahira made various statements and after getting report Supreme Court proceeded to deal with contempt. In the similar matter what we have noticed is that the contempt of court is a quasi criminal proceeding and ultimately it resulted into punishment for the offence of contempt of court. Here, the alleged contemnor - appellant, is a corporate body and is before this Court, however the officers of this company are outside India, namely, they are in Australia, and their names are not known to the Court. This is a case wherein the information in respect of the offence of contempt of court is outside India and the said information is required for punishing the contemnors. What we find is that the Code of Criminal Procedure, 1973, Section 166-A deals with a situation in respect of crimes or offences where the evidence is available outside India. We quote the said section: 166-A. Letter of request to competent authority for investigation in a country or place outside India. - (1) Notwithstanding anything contained in this Code, if , in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter. 21. Thus, what we find is that the information in respect of the names of the persons who alleged to have committed the contempt of court, the manner in which the machinery was disposed of and the record prepared by those officers for disposing of those machineries can be investigated by invoking the powers as provided in section 166-A of the Cr.P.C. or on the line of the procedure provided in this section. We therefore find it appropriate to direct the Chief Metropolitan Magistrate, Mumbai to issue a letter of request to a Court or an authority in Australia where the office of appellant was located and where the sale transaction of disputed machinery has taken place on 15/10/2007, who is competent to deal with the request to examine orally any person employed by the appellant - company, who is supposed to be acquainted with the facts and circumstances of the present case and to record their statements made in the course of the case. The Chief Metropolitan Magistrate, Mumbai shall also issue a letter of request to the said Court or Authority requesting to investigate and find out as to who are the officers of the appellant - company who are responsible for the disposal of the machinery on 15th October 2007. 22. The Prothonotary & Sr. Master of this Court is directed to forward the copies of the contempt petition, original arbitration petition from which the contempt proceeding arose and this order to the Chief Metropolitan Magistrate, Mumbai so that he can forward the necessary copies of the proceedings to the Court or Authority in Australia to investigate into this aspect of the matter. After a receipt of information from the Court or Authority in Australia as directed above, the same shall be transmitted to the learned Single Judge of this Court so that he can take further steps in the matter. | 1[ds]9. On reading both these judgments it appears that the appeal would not lie. The emphasis is placed by the learned counsel Mr. Kamdar on the following quotation from the said judgment, namely,r an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19. In special circumstances, they may be open to challenge under Article 136 of theHe has also relied upon the following ratio, namely,n appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment forHe, therefore, submitted that present appeal is not maintainableFrom the perusal of the order of the Commissioner dated, it appears that some of the officers of the Municipal Corporation joined hands with the employees and manipulated the gradation list and/or issued regularization orders which are contrary to the directions issued by this Court in Ramadhar case. All the employees concerned who are responsible for the aforesaid mischief deserve an appropriate action by the Commissioner, Municipal Corporation. In these circumstances, Commissioner, Municipal Corporation is directed to take departmental action against all the erring officers who have played mischief or played some mala fide rate (sic) in issuing the orders of regularization which are contrary to the directions issued by this Court in Ramadhar case or have manipulated the things for the purpose of issuing regularization orders of the employees who were not eligible for the regularization. Aforesaid action shall be taken by the Commissioner, Municipal Corporation within a period of three months from today. In case some action is to be taken by the State, an appropriate step shall be taken by him in this regard drawing attention of the State within a period of 30 days from today12. Thus, on reading these paragraphs from the Supreme Court judgment we find that out of the two interpretations, namely, out of narrow and broader interpretations, the Supreme Court has accepted the broader interpretation. The broader interpretation is that the languagey order or decision of the High Court in the exercise of its jurisdiction to punish foris sufficiently wide to relate also to the orders or decisions made by the High Court in the course of proceedings which may result in the conviction or sentence for contempt. On reading the language of section 19 of the Contempt of Courts Act, we also find that the appeal has been provided in Section 19 as against any order or decision of the High Court while the said High Court is exercising its jurisdiction to punish for contempt. Thereby the requirement is that whenever the High Court is in exercise of its jurisdiction to punish for contempt; has dealt with the matter and passed any order that order will be appealable under section 19 of the Contempt of Courts Act13. Therefore it naturally flows from the language of section 19 of the Contempt of Courts Act that it need not be an order of conviction, but any order including the order of conviction can be challenged under section 19 of the Contempt of Courts Act. The only requirement is that the order must have been passed by the High Court in its jurisdiction to punish for contempt. The wordscannot be interpretated to mean that there should be necessarily punishment and thereby an appeal will lie. We find that the judgment of the Supreme Court in the matter of Midnapore (supra) has not been considered by the Supreme Court in the matter of Municipal Corporation of Jabalpur (supra). Therefore we are left at a controversy, namely, out of the two judgments which differ so far as the ratio are concerned, which of those judgments should be followed by this Court. It is well settled law that the judgment which is acceptable to us out of the two Supreme Court judgments can be followed by us, and the same is the ratio of the this High Courts Full Bench Judgment in the matter of Kamleshkumar Ishwardas Patel v/s. Union of India & others, reported in 1994 Mh. L.J. 166915. Next, coming to the main controversy, namely, the direction given by the learned Single Judge to the appellant to disclose the names of the officers who have disposed of the machinery on or about 15th October 2007, within a period of two weeks from the date of order, so that the learned Single Judge can consider as to whether to proceed against those officers for contempt of court. It is to be noted that those officers of the appellant who have allegedly disposed of the machinery contrary to the stay orders of this Court, were located in Australia. As they were the officers of the appellant, their names, particulars are only known to the appellant. Thus, while the machinery in dispute which was the subject matter of the contract between the appellant and the respondent, was stationed in Australia, the appellant being a party to the said proceeding was allegedly prohibited from disposing of the said machinery. The learned Single Judge of this Court has ultimately found that the contempt action will proceed as against the original respondent nos. 1 and 4. Thus the original respondent nos. 2 & 3 being the directors of the appellantcompany were discharged by the learned Single Judge. Learned Single Judge has also noted that if the machinery has been disposed of or sold by the officers of the appellant in Australia, then appellant will be liable for the contempt for the acts done by its officers in Australia, as the prohibitory orders passed by this court were binding as against the appellantcompany, similarly those orders were equally binding on the officers of the appellantcompany. Therefore the act of contempt which the Single Judge has to consider is a composite act of the officers of the appellant and that of the appellant. However, the names of those officers who have disposed of the machinery contrary to the alleged directions of this Court and have allegedly committed the contempt are not known either to the Court and/or to the respondent who has filed the contempt petition. However, the duty of the respondentcomplainant is to point out the contempt to the Court and thereafter it is for the Court to take a cognizance and deal with the contemnor. Once the contempt has been pointed out by the complainantrespondent, it is for the Court to find out who are the contemnors and to punish them for the contempt. No doubt, if the complainantrespondent possesses the information in respect of the names of the contemnor and other particulars which is required to punish, he can provide and supply it to the Court. But in the peculiar facts of this case that the names of the officers of the appellant who were located in Australia and their internal record as a result of which they have disposed the machinery in question contrary to the alleged directions of this Court is a material not accessible to the respondentcomplainant. The said information is exclusive in the custody and possession of the appellant. No doubt, the appellantcompany can be punished for the contempt of court, but if the officers are not dealt with then in that circumstances the real contemnors may go free and thereby in the matters of the company the officers will commit the contempt, the company will suffer the punishment for the contempt, but the real contemnors will be free from the action of the contempt of Court. The companies are ultimately governed by the persons and therefore the persons who committed the contempt must be dealt with by the Court while dealing with the contempt action, and therefore in the present case it was necessary for the learned Single Judge to know the names of the real contemnors, namely, the names of the officers of the appellant who are located in AustraliaThus, what we find is that that the Apex Court has held that contempt proceeding is a quasi criminal and standard of proof is of the criminal proceeding, that the breach has to be established beyond reasonable doubt. Therefore, the appellant stands at par or in a row of alleged contemnors and the directions given to the appellant to disclose the names of the officers of they against whom the alleged contempt action may be initiated, may lead ton of appellant. As the appellant is a company, thereby for the acts which have been committed by its officers, the company will be held liable for the contempt. Therefore the appellant and its officers, are the persons who have allegedly committed the offence of contempt of court. Therefore, the question is whether one of the alleged contemnors can be directed to disclose the names of the other alleged contemnors. Because as a result of the disclosure of those names, and if those officers are found to be contemnor, the appellant will also be declared as contemnor. Therefore, the learned counsel for the appellant submitted that the act of disclosure of the names of officers of they is not a simplicitor an act of disclosure of the names of the contemnors with which the appellant had no concern, but as a result of the said disclosure the appellant gets involved in contempt of court. Not only that but appellant produces the evidence as against the company that is against appellant. Thus, according to the learned counsel for the appellant, the appellant is asked to give the evidence against appellant against appellants will by giving such directions. We find substance in the contention. Therefore, what we find that even though we have ample powers to find out a proper procedure for punishing the persons for committing the contempt of Court, yet the procedure which we invent shall not be contrary to Article 20(3) of the Constitution. However, in the present matter, what we find is that the directions given by the learned Single Judge to respondent no.3 to disclose the names of its officers is a direction which ultimately resulted into producing and procuring the evidence as against the appellant also and thereby it violates Article 20(3) of the Constitution, and therefore the said direction is not sustainable in law. Therefore we are inclined to quash the said directions20. However, the question before this Court is that is this Court helpless under these circumstances Because whenever this Court finds and/or it has been brought to the notice of this Court that someone has committed contempt of Court, in order to maintain the discipline, dignity and to deter the contemnor from indulging into the acts of contempt, this Court is expected to take appropriate steps to book the contemnors and punish for the contempt of Court. How to do this when the names of the contemnors are not known and especially under the circumstances the directions cannot be given to the party on record to disclose the names of the contemnors. What is interesting to be noted is that in the matter of Zahira (supra) when the Apex Court has noted that the various statements have been made by Zahira and it was rather difficult to hold whether she is responsible for the contempt or not, the Court directed investigation of the facts through the Registrar of the Court and after getting a report, further actions were taken as against the contemnor. However, in that case the contemnor was known but what was the material as against the contemnor was necessary to be ascertained and the Apex Court ascertained it by appointing the officer of the Court to investigate into the facts and get the factual report. This is how the Apex Court has followed its own procedure to deal with the contempt action. In the present matter the appellant is a multinational company and its officers may be either in this country or out of this country. If the officers of appellant are in this country the required information, namely, the names of the officers of appellant and record pertaining to the sale or disposal of machinery would have been investigated either giving directions to police officers. But such course cannot be adopted in this case because the officers allegedly committing contempt and record is located outside the country. Now as a result of the globalization of the business and market, multinational companies are coming to this country along with their officers, they carry on business and/or undertake certain contracts here. When litigation starts in this country and thereby they are under the orders of this Court. But if the officers of said company who are outside the country commit breach of the orders of this court, unless their names have been found or brought before this Court, it will not be possible for this court to deal with the officers of these multinational companies who have flouted the orders passed by this CourtTherefore, this Court cannot be a silent spectator to the fact that the information regarding the names of the alleged contemnorofficers is exclusively with the multinational company and as the company is also one of the contemnors along with them, cannot be forced to disclose the names of its officers. Therefore, even though we find that directly the directions cannot be given to the company probably in view of Article 20(3) of the Constitution, yet it cannot be said that this Court is helpless. On the contrary in view of the inherent powers to punish for the contempt, this Court can provide for its own procedure and machinery to find out the names of the contemnors and to deal with themIn Zahiras case (supra) the Apex Court found the appointment of the Registrar to investigate into the facts under what circumstances Zahira made various statements and after getting report Supreme Court proceeded to deal with contempt. In the similar matter what we have noticed is that the contempt of court is a quasi criminal proceeding and ultimately it resulted into punishment for the offence of contempt of court. Here, the alleged contemnorappellant, is a corporate body and is before this Court, however the officers of this company are outside India, namely, they are in Australia, and their names are not known to the Court. This is a case wherein the information in respect of the offence of contempt of court is outside India and the said information is required for punishing the contemnors. What we find is that the Code of Criminal Procedure, 1973, SectionA deals with a situation in respect of crimes or offences where the evidence is available outside India. We quote the said section:Letter of request to competent authority for investigation in a country or place outside India.(1) Notwithstanding anything contained in this Code, if , in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter.21. Thus, what we find is that the information in respect of the names of the persons who alleged to have committed the contempt of court, the manner in which the machinery was disposed of and the record prepared by those officers for disposing of those machineries can be investigated by invoking the powers as provided in sectionA of the Cr.P.C. or on the line of the procedure provided in this section. We therefore find it appropriate to direct the Chief Metropolitan Magistrate, Mumbai to issue a letter of request to a Court or an authority in Australia where the office of appellant was located and where the sale transaction of disputed machinery has taken place on 15/10/2007, who is competent to deal with the request to examine orally any person employed by the appellantcompany, who is supposed to be acquainted with the facts and circumstances of the present case and to record their statements made in the course of the case. The Chief Metropolitan Magistrate, Mumbai shall also issue a letter of request to the said Court or Authority requesting to investigate and find out as to who are the officers of the appellantcompany who are responsible for the disposal of the machinery on 15th October 200722. The Prothonotary & Sr. Master of this Court is directed to forward the copies of the contempt petition, original arbitration petition from which the contempt proceeding arose and this order to the Chief Metropolitan Magistrate, Mumbai so that he can forward the necessary copies of the proceedings to the Court or Authority in Australia to investigate into this aspect of the matter. After a receipt of information from the Court or Authority in Australia as directed above, the same shall be transmitted to the learned Single Judge of this Court so that he can take further steps in the matter. | 1 | 6,516 | 3,149 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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appointing the officer of the Court to investigate into the facts and get the factual report. This is how the Apex Court has followed its own procedure to deal with the contempt action. In the present matter the appellant is a multinational company and its officers may be either in this country or out of this country. If the officers of appellant are in this country the required information, namely, the names of the officers of appellant and record pertaining to the sale or disposal of machinery would have been investigated either giving directions to police officers. But such course cannot be adopted in this case because the officers allegedly committing contempt and record is located outside the country. Now as a result of the globalization of the business and market, multinational companies are coming to this country along with their officers, they carry on business and/or undertake certain contracts here. When litigation starts in this country and thereby they are under the orders of this Court. But if the officers of said company who are outside the country commit breach of the orders of this court, unless their names have been found or brought before this Court, it will not be possible for this court to deal with the officers of these multinational companies who have flouted the orders passed by this Court. Therefore, this Court cannot be a silent spectator to the fact that the information regarding the names of the alleged contemnor - officers is exclusively with the multinational company and as the company is also one of the contemnors along with them, cannot be forced to disclose the names of its officers. Therefore, even though we find that directly the directions cannot be given to the company probably in view of Article 20(3) of the Constitution, yet it cannot be said that this Court is helpless. On the contrary in view of the inherent powers to punish for the contempt, this Court can provide for its own procedure and machinery to find out the names of the contemnors and to deal with them. In Zahiras case (supra) the Apex Court found the appointment of the Registrar to investigate into the facts under what circumstances Zahira made various statements and after getting report Supreme Court proceeded to deal with contempt. In the similar matter what we have noticed is that the contempt of court is a quasi criminal proceeding and ultimately it resulted into punishment for the offence of contempt of court. Here, the alleged contemnor - appellant, is a corporate body and is before this Court, however the officers of this company are outside India, namely, they are in Australia, and their names are not known to the Court. This is a case wherein the information in respect of the offence of contempt of court is outside India and the said information is required for punishing the contemnors. What we find is that the Code of Criminal Procedure, 1973, Section 166-A deals with a situation in respect of crimes or offences where the evidence is available outside India. We quote the said section: 166-A. Letter of request to competent authority for investigation in a country or place outside India. - (1) Notwithstanding anything contained in this Code, if , in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter. 21. Thus, what we find is that the information in respect of the names of the persons who alleged to have committed the contempt of court, the manner in which the machinery was disposed of and the record prepared by those officers for disposing of those machineries can be investigated by invoking the powers as provided in section 166-A of the Cr.P.C. or on the line of the procedure provided in this section. We therefore find it appropriate to direct the Chief Metropolitan Magistrate, Mumbai to issue a letter of request to a Court or an authority in Australia where the office of appellant was located and where the sale transaction of disputed machinery has taken place on 15/10/2007, who is competent to deal with the request to examine orally any person employed by the appellant - company, who is supposed to be acquainted with the facts and circumstances of the present case and to record their statements made in the course of the case. The Chief Metropolitan Magistrate, Mumbai shall also issue a letter of request to the said Court or Authority requesting to investigate and find out as to who are the officers of the appellant - company who are responsible for the disposal of the machinery on 15th October 2007. 22. The Prothonotary & Sr. Master of this Court is directed to forward the copies of the contempt petition, original arbitration petition from which the contempt proceeding arose and this order to the Chief Metropolitan Magistrate, Mumbai so that he can forward the necessary copies of the proceedings to the Court or Authority in Australia to investigate into this aspect of the matter. After a receipt of information from the Court or Authority in Australia as directed above, the same shall be transmitted to the learned Single Judge of this Court so that he can take further steps in the matter.
### Response:
1
### Explanation:
the material as against the contemnor was necessary to be ascertained and the Apex Court ascertained it by appointing the officer of the Court to investigate into the facts and get the factual report. This is how the Apex Court has followed its own procedure to deal with the contempt action. In the present matter the appellant is a multinational company and its officers may be either in this country or out of this country. If the officers of appellant are in this country the required information, namely, the names of the officers of appellant and record pertaining to the sale or disposal of machinery would have been investigated either giving directions to police officers. But such course cannot be adopted in this case because the officers allegedly committing contempt and record is located outside the country. Now as a result of the globalization of the business and market, multinational companies are coming to this country along with their officers, they carry on business and/or undertake certain contracts here. When litigation starts in this country and thereby they are under the orders of this Court. But if the officers of said company who are outside the country commit breach of the orders of this court, unless their names have been found or brought before this Court, it will not be possible for this court to deal with the officers of these multinational companies who have flouted the orders passed by this CourtTherefore, this Court cannot be a silent spectator to the fact that the information regarding the names of the alleged contemnorofficers is exclusively with the multinational company and as the company is also one of the contemnors along with them, cannot be forced to disclose the names of its officers. Therefore, even though we find that directly the directions cannot be given to the company probably in view of Article 20(3) of the Constitution, yet it cannot be said that this Court is helpless. On the contrary in view of the inherent powers to punish for the contempt, this Court can provide for its own procedure and machinery to find out the names of the contemnors and to deal with themIn Zahiras case (supra) the Apex Court found the appointment of the Registrar to investigate into the facts under what circumstances Zahira made various statements and after getting report Supreme Court proceeded to deal with contempt. In the similar matter what we have noticed is that the contempt of court is a quasi criminal proceeding and ultimately it resulted into punishment for the offence of contempt of court. Here, the alleged contemnorappellant, is a corporate body and is before this Court, however the officers of this company are outside India, namely, they are in Australia, and their names are not known to the Court. This is a case wherein the information in respect of the offence of contempt of court is outside India and the said information is required for punishing the contemnors. What we find is that the Code of Criminal Procedure, 1973, SectionA deals with a situation in respect of crimes or offences where the evidence is available outside India. We quote the said section:Letter of request to competent authority for investigation in a country or place outside India.(1) Notwithstanding anything contained in this Code, if , in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter.21. Thus, what we find is that the information in respect of the names of the persons who alleged to have committed the contempt of court, the manner in which the machinery was disposed of and the record prepared by those officers for disposing of those machineries can be investigated by invoking the powers as provided in sectionA of the Cr.P.C. or on the line of the procedure provided in this section. We therefore find it appropriate to direct the Chief Metropolitan Magistrate, Mumbai to issue a letter of request to a Court or an authority in Australia where the office of appellant was located and where the sale transaction of disputed machinery has taken place on 15/10/2007, who is competent to deal with the request to examine orally any person employed by the appellantcompany, who is supposed to be acquainted with the facts and circumstances of the present case and to record their statements made in the course of the case. The Chief Metropolitan Magistrate, Mumbai shall also issue a letter of request to the said Court or Authority requesting to investigate and find out as to who are the officers of the appellantcompany who are responsible for the disposal of the machinery on 15th October 200722. The Prothonotary & Sr. Master of this Court is directed to forward the copies of the contempt petition, original arbitration petition from which the contempt proceeding arose and this order to the Chief Metropolitan Magistrate, Mumbai so that he can forward the necessary copies of the proceedings to the Court or Authority in Australia to investigate into this aspect of the matter. After a receipt of information from the Court or Authority in Australia as directed above, the same shall be transmitted to the learned Single Judge of this Court so that he can take further steps in the matter.
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State of A.P Vs. S. Vishwanatha Raju and Ors | Ramaswamy, K. 1. Heard counsel for the parties. 2. Delay of 3 years and 178 days is condoned.3. Substitution allowed. Leave granted. 4. The only question that arises in these appeals is whether the lands of vendors and the vendees under agreements to sell, Ex.A-1 and Ex.A-4 dated October 20, 1970 and December 9, 1970 to the extent of 456.56 acres and 433.17 acres, respectively, are liable to be included in their holdings. This point is no longer res Integra. This Court in Yedida Chakradhararao (dead) through Lrs. etc. etc. v. State of A.P., 1990 (2) SCC 523 , affirming the judgment in State of A.P. v. Mohd. Ashrafuddin, 1982 (2) SCC 1 , held that when the land was sought to be sold under an agreement to sell, the land should be included in the holdings of the owner as w ell as the person who held the land. In other words, this Court has construed A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1975 and held that the land should be included in the holdings of the vendor as well as the vendee. Though the agreement to sell does not confer title nor divest the title of the vendor, the person who held the land should also furnish necessary declaration under the Act when he is in possession of the land in excess of the ceiling area. In this view of the matter, the findings recorded by the primary Tribunal and the appellate Tribunal whether the agreement to sell brought about to defeat the provisions of the Act are genuine has become irrelevant. Consequently, the entire land covered by these two transactions are to be included in the holdings of the vendors as well as the vendees. 5. Ms. K. Amreshwari, the learned Senior counsel appearing for the respondents contended-that when the firm had filed the declaration before the primary authority in CC No.2164/75 and the Land Reforms Tribunal, Kandukur by its order dated January 18, 1977 though did not accept the genuineness of the two transactions and included the same in the holdings of the firm, on appeal by the Managing partner, the appellate authority had held them to be genuine and directed exclusion thereof, again with specific order. No revision was filed in the High Court and therefore, there is no S.L.P. The order thereby became final. The order impugned in this Court is of the individual declaring partner and orders against the other partners cannot be gone into for directing the inclusion of their land in the sale transactions as the respective holdings of the partners or the firms, as the case may be. Technically, she is right.It cannot be said that in appropriate cases, this Court is prevented to take suo motu judicial notice of glaring injustice having recourse to Art. 142 of the Constitution for serving the ends of justice. The very purpose of the Land Reforms (Ceiling on Agricultural Holdings) Act, 1975, is to prescribe the maximum holding so that the excess land becomes available for distribution among the landless persons so as to serve the object of socioeconomic justice envisaged in the Preamble to the Constitution and its Directive Principles of State Policy. When a large extent of land of about 900 acres is sought to be taken out of the purview of the Act by the device of agreements of sale and the officers overlook the same because of their negligence or otherwise in not carrying the orders of authorities in revision and when the facts came to the notice, this court having taken suo motu notice of the same , meet out justice.Accordingly suo motu notice is taken of Developed Nazul Land) Amendment Rules the cases concerned and they are treated as special leave petitions against the orders passed by the appellate authority and considered its legality by granting leave. Hence, we hold that the lands covered under Ex.A-1 and Ex.A-4 should be treated as lands held by the vendor and the vendee. The Land Reforms Tribunal concerned is, therefore, directed to reopen the CCs filed by the respective partners and the managing partners of the company and determine the surplus lands according to law and then pass the appropriate orders according to law. | 1[ds]No revision was filed in the High Court and therefore, there is no S.L.P. The order thereby became final. The order impugned in this Court is of the individual declaring partner and orders against the other partners cannot be gone into for directing the inclusion of their land in the sale transactions as the respective holdings of the partners or the firms, as the case may be. Technically, she is right.It cannot be said that in appropriate cases, this Court is prevented to take suo motu judicial notice of glaring injustice having recourse to Art. 142 of the Constitution for serving the ends of justice. The very purpose of the Land Reforms (Ceiling on Agricultural Holdings) Act, 1975, is to prescribe the maximum holding so that the excess land becomes available for distribution among the landless persons so as to serve the object of socioeconomic justice envisaged in the Preamble to the Constitution and its Directive Principles of State Policy. When a large extent of land of about 900 acres is sought to be taken out of the purview of the Act by the device of agreements of sale and the officers overlook the same because of their negligence or otherwise in not carrying the orders of authorities in revision and when the facts came to the notice, this court having taken suo motu notice of the same , meet out justice.Accordingly suo motu notice is taken of Developed Nazul Land) Amendment Rules the cases concerned and they are treated as special leave petitions against the orders passed by the appellate authority and considered its legality by granting leave. Hence, we hold that the lands covered under Ex.A-1 and Ex.A-4 should be treated as lands held by the vendor and the vendee. The Land Reforms Tribunal concerned is, therefore, directed to reopen the CCs filed by the respective partners and the managing partners of the company and determine the surplus lands according to law and then pass the appropriate orders according to law. | 1 | 779 | 361 | ### 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:
Ramaswamy, K. 1. Heard counsel for the parties. 2. Delay of 3 years and 178 days is condoned.3. Substitution allowed. Leave granted. 4. The only question that arises in these appeals is whether the lands of vendors and the vendees under agreements to sell, Ex.A-1 and Ex.A-4 dated October 20, 1970 and December 9, 1970 to the extent of 456.56 acres and 433.17 acres, respectively, are liable to be included in their holdings. This point is no longer res Integra. This Court in Yedida Chakradhararao (dead) through Lrs. etc. etc. v. State of A.P., 1990 (2) SCC 523 , affirming the judgment in State of A.P. v. Mohd. Ashrafuddin, 1982 (2) SCC 1 , held that when the land was sought to be sold under an agreement to sell, the land should be included in the holdings of the owner as w ell as the person who held the land. In other words, this Court has construed A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1975 and held that the land should be included in the holdings of the vendor as well as the vendee. Though the agreement to sell does not confer title nor divest the title of the vendor, the person who held the land should also furnish necessary declaration under the Act when he is in possession of the land in excess of the ceiling area. In this view of the matter, the findings recorded by the primary Tribunal and the appellate Tribunal whether the agreement to sell brought about to defeat the provisions of the Act are genuine has become irrelevant. Consequently, the entire land covered by these two transactions are to be included in the holdings of the vendors as well as the vendees. 5. Ms. K. Amreshwari, the learned Senior counsel appearing for the respondents contended-that when the firm had filed the declaration before the primary authority in CC No.2164/75 and the Land Reforms Tribunal, Kandukur by its order dated January 18, 1977 though did not accept the genuineness of the two transactions and included the same in the holdings of the firm, on appeal by the Managing partner, the appellate authority had held them to be genuine and directed exclusion thereof, again with specific order. No revision was filed in the High Court and therefore, there is no S.L.P. The order thereby became final. The order impugned in this Court is of the individual declaring partner and orders against the other partners cannot be gone into for directing the inclusion of their land in the sale transactions as the respective holdings of the partners or the firms, as the case may be. Technically, she is right.It cannot be said that in appropriate cases, this Court is prevented to take suo motu judicial notice of glaring injustice having recourse to Art. 142 of the Constitution for serving the ends of justice. The very purpose of the Land Reforms (Ceiling on Agricultural Holdings) Act, 1975, is to prescribe the maximum holding so that the excess land becomes available for distribution among the landless persons so as to serve the object of socioeconomic justice envisaged in the Preamble to the Constitution and its Directive Principles of State Policy. When a large extent of land of about 900 acres is sought to be taken out of the purview of the Act by the device of agreements of sale and the officers overlook the same because of their negligence or otherwise in not carrying the orders of authorities in revision and when the facts came to the notice, this court having taken suo motu notice of the same , meet out justice.Accordingly suo motu notice is taken of Developed Nazul Land) Amendment Rules the cases concerned and they are treated as special leave petitions against the orders passed by the appellate authority and considered its legality by granting leave. Hence, we hold that the lands covered under Ex.A-1 and Ex.A-4 should be treated as lands held by the vendor and the vendee. The Land Reforms Tribunal concerned is, therefore, directed to reopen the CCs filed by the respective partners and the managing partners of the company and determine the surplus lands according to law and then pass the appropriate orders according to law.
### Response:
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### Explanation:
No revision was filed in the High Court and therefore, there is no S.L.P. The order thereby became final. The order impugned in this Court is of the individual declaring partner and orders against the other partners cannot be gone into for directing the inclusion of their land in the sale transactions as the respective holdings of the partners or the firms, as the case may be. Technically, she is right.It cannot be said that in appropriate cases, this Court is prevented to take suo motu judicial notice of glaring injustice having recourse to Art. 142 of the Constitution for serving the ends of justice. The very purpose of the Land Reforms (Ceiling on Agricultural Holdings) Act, 1975, is to prescribe the maximum holding so that the excess land becomes available for distribution among the landless persons so as to serve the object of socioeconomic justice envisaged in the Preamble to the Constitution and its Directive Principles of State Policy. When a large extent of land of about 900 acres is sought to be taken out of the purview of the Act by the device of agreements of sale and the officers overlook the same because of their negligence or otherwise in not carrying the orders of authorities in revision and when the facts came to the notice, this court having taken suo motu notice of the same , meet out justice.Accordingly suo motu notice is taken of Developed Nazul Land) Amendment Rules the cases concerned and they are treated as special leave petitions against the orders passed by the appellate authority and considered its legality by granting leave. Hence, we hold that the lands covered under Ex.A-1 and Ex.A-4 should be treated as lands held by the vendor and the vendee. The Land Reforms Tribunal concerned is, therefore, directed to reopen the CCs filed by the respective partners and the managing partners of the company and determine the surplus lands according to law and then pass the appropriate orders according to law.
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Panchamal Narayan Shenoy Vs. Basthi Venkatesha Shenoy | satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one. No doubt, as to whether the landlords requirement is reasonable and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard.12. In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasized in clause (k) of the proviso. When such a specific provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in Clause (j). So the requirement under Clause (j) is that of the landlord and cannot have any reference to the building.13. This Court, in Neta Ram v. Jiwan Lal, (1962) Supp. 2 SCR 623 - (AIR 1963 SC 499 ) in interpreting no doubt a slightly differently worded provision in Section 13 (3) (a) (iii) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 B. K (8 of 2006 BK) held that one of the circumstances which could be taken into account in considering the requirements of the landlord with reference to the existing building is the possibility of its being put to a more profitable use after construction. In the case before us all the Courts have concurrently held that the requirement of the landlord is reasonable and bona fide and that he had obtained the necessary sanction from the municipality concerned and that the landlord had also the means for reconstruction of the building. If the landlord does not commence demolition of the premises within the period specified in the order of the Court, the tenant is given a right under Section 26 (1) to issue a notice to the landlord of his intention to occupy the premises from which he had been evicted and also to apply to the Court for relief if the landlord does not comply with his request. Again, under Section 27, the tenant has got a right to occupy the new building on its completion provided he satisfies the requirements contained in that section. Under Section 28 (1), the landlord is bound to intimate the tenant from whom he had received a notice under Section 27 the date on which the erection of the new building will be completed from which date the tenant will be entitled to occupy the same.14. Mr. Chagla has referred us to a decision of the Madras High Court in Mehsin Bhai v. Hale and Company, (1964) 2 Mad LJ 147. The section which came up for consideration before the Madras High Court was Section 14 (3) of the Madras Buildings (Lease and Rent Control) Act, 1960 (Act XVIII of 1960) which was as follows:"14 (l) (b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date."That clause is substantially similar to Section 21 (1)(j) of the Act. In the Madras case it is seen that the building from which the tenant was sought to be evicted was in good condition and there was no danger of its falling for another 20 years though the building was old. Under those circumstances when the landlord applied under Section 14 (1) (h) of the Madras Act for eviction on the ground that he wished to demolish the building for the purpose of erecting a new building thereon, the High Court affirmed the decision of the Subordinate Court declining relief to the landlord. Though the learned Judge states that landlords may bona fide require such buildings, particularly old buildings in their own interest for demolition and reconstruction, he holds that it is equally possible that the mere fact that a building is old may be taken advantage of by a landlord to put forth such pretext, his real object being ulterior and not bona fide for the purpose of reconstruction.15. We have no hesitation in agreeing with the learned Judges observation that the landlord must prove the reasonableness and bona fide nature of his requirement. But, if the learned Judge intended to lay down a proposition of law that under Section 14 (1) (h) of the Madras Act, similar to Section 21 (1) (j) of the Act, a landlord cannot recover possession of the property for the purpose of reconstruction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous. There is absolutely no justification for putting such a narrow interpretation on the clause in question16. Mr. Chagla further urged that before his client is evicted his claim for compensation should have been considered by the Rent Controller. It is enough to say that, as pointed out by the High Court, that claim does not arise for consideration in these proceedings. We may also state that a further contention regarding the validity of the notice to quit issued by the landlord which was taken before the High Court and held against the appellant, has not been canvassed before us. | 0[ds]8. Having due regard to the scheme of the Act, we are satisfied that the interpretation placed upon Section 21 (1) (j) by the High Court is correct.We have no hesitation in agreeing with the learned Judges observation that the landlord must prove the reasonableness and bona fide nature of his requirement. But, if the learned Judge intended to lay down a proposition of law that under Section 14 (1) (h) of the Madras Act, similar to Section 21 (1) (j) of the Act, a landlord cannot recover possession of the property for the purpose of reconstruction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous. There is absolutely no justification for putting such a narrow interpretation on the clause in question16. Mr. Chagla further urged that before his client is evicted his claim for compensation should have been considered by the Rent Controller. It is enough to say that, as pointed out by the High Court, that claim does not arise for consideration in these proceedings. We may also state that a further contention regarding the validity of the notice to quit issued by the landlord which was taken before the High Court and held against the appellant, has not been canvassed beforeour opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasized in clause (k) of the proviso. When such a specific provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in Clause (j). So the requirement under Clause (j) is that of the landlord and cannot have any reference to the building.e have no hesitation in agreeing with the learned Judges observation that the landlord must prove the reasonableness and bona fide nature of his requirement. But, if the learned Judge intended to lay down a proposition of law that under Section 14 (1) (h) of the Madras Act, similar to Section 21 (1) (j) of the Act, a landlord cannot recover possession of the property for the purpose of reconstruction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous. There is absolutely no justification for putting such a narrow interpretation on the clause in question | 0 | 2,466 | 502 | ### Instruction:
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satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one. No doubt, as to whether the landlords requirement is reasonable and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard.12. In considering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasized in clause (k) of the proviso. When such a specific provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in Clause (j). So the requirement under Clause (j) is that of the landlord and cannot have any reference to the building.13. This Court, in Neta Ram v. Jiwan Lal, (1962) Supp. 2 SCR 623 - (AIR 1963 SC 499 ) in interpreting no doubt a slightly differently worded provision in Section 13 (3) (a) (iii) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 B. K (8 of 2006 BK) held that one of the circumstances which could be taken into account in considering the requirements of the landlord with reference to the existing building is the possibility of its being put to a more profitable use after construction. In the case before us all the Courts have concurrently held that the requirement of the landlord is reasonable and bona fide and that he had obtained the necessary sanction from the municipality concerned and that the landlord had also the means for reconstruction of the building. If the landlord does not commence demolition of the premises within the period specified in the order of the Court, the tenant is given a right under Section 26 (1) to issue a notice to the landlord of his intention to occupy the premises from which he had been evicted and also to apply to the Court for relief if the landlord does not comply with his request. Again, under Section 27, the tenant has got a right to occupy the new building on its completion provided he satisfies the requirements contained in that section. Under Section 28 (1), the landlord is bound to intimate the tenant from whom he had received a notice under Section 27 the date on which the erection of the new building will be completed from which date the tenant will be entitled to occupy the same.14. Mr. Chagla has referred us to a decision of the Madras High Court in Mehsin Bhai v. Hale and Company, (1964) 2 Mad LJ 147. The section which came up for consideration before the Madras High Court was Section 14 (3) of the Madras Buildings (Lease and Rent Control) Act, 1960 (Act XVIII of 1960) which was as follows:"14 (l) (b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date."That clause is substantially similar to Section 21 (1)(j) of the Act. In the Madras case it is seen that the building from which the tenant was sought to be evicted was in good condition and there was no danger of its falling for another 20 years though the building was old. Under those circumstances when the landlord applied under Section 14 (1) (h) of the Madras Act for eviction on the ground that he wished to demolish the building for the purpose of erecting a new building thereon, the High Court affirmed the decision of the Subordinate Court declining relief to the landlord. Though the learned Judge states that landlords may bona fide require such buildings, particularly old buildings in their own interest for demolition and reconstruction, he holds that it is equally possible that the mere fact that a building is old may be taken advantage of by a landlord to put forth such pretext, his real object being ulterior and not bona fide for the purpose of reconstruction.15. We have no hesitation in agreeing with the learned Judges observation that the landlord must prove the reasonableness and bona fide nature of his requirement. But, if the learned Judge intended to lay down a proposition of law that under Section 14 (1) (h) of the Madras Act, similar to Section 21 (1) (j) of the Act, a landlord cannot recover possession of the property for the purpose of reconstruction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous. There is absolutely no justification for putting such a narrow interpretation on the clause in question16. Mr. Chagla further urged that before his client is evicted his claim for compensation should have been considered by the Rent Controller. It is enough to say that, as pointed out by the High Court, that claim does not arise for consideration in these proceedings. We may also state that a further contention regarding the validity of the notice to quit issued by the landlord which was taken before the High Court and held against the appellant, has not been canvassed before us.
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8. Having due regard to the scheme of the Act, we are satisfied that the interpretation placed upon Section 21 (1) (j) by the High Court is correct.We have no hesitation in agreeing with the learned Judges observation that the landlord must prove the reasonableness and bona fide nature of his requirement. But, if the learned Judge intended to lay down a proposition of law that under Section 14 (1) (h) of the Madras Act, similar to Section 21 (1) (j) of the Act, a landlord cannot recover possession of the property for the purpose of reconstruction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous. There is absolutely no justification for putting such a narrow interpretation on the clause in question16. Mr. Chagla further urged that before his client is evicted his claim for compensation should have been considered by the Rent Controller. It is enough to say that, as pointed out by the High Court, that claim does not arise for consideration in these proceedings. We may also state that a further contention regarding the validity of the notice to quit issued by the landlord which was taken before the High Court and held against the appellant, has not been canvassed beforeour opinion, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasized in clause (k) of the proviso. When such a specific provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in Clause (j). So the requirement under Clause (j) is that of the landlord and cannot have any reference to the building.e have no hesitation in agreeing with the learned Judges observation that the landlord must prove the reasonableness and bona fide nature of his requirement. But, if the learned Judge intended to lay down a proposition of law that under Section 14 (1) (h) of the Madras Act, similar to Section 21 (1) (j) of the Act, a landlord cannot recover possession of the property for the purpose of reconstruction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be considered to be erroneous. There is absolutely no justification for putting such a narrow interpretation on the clause in question
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State of Madras Vs. Kunnakudi Melamatam & Another | from the order of, the Deputy Commissioner, and under S. 62 of the Act, any party aggrieved by the order of the Commissioner might within ninety days of the order institute a suit in the Court against the order. Section 93 of the Act read :"No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act." 9. Now, one of the disputes in this suit is whether the institution is a religious institution within the meaning of Act XIX of 1951. Specific provision is made in Ss. 57, 61 and 62 of the Act for determination of that dispute by the Deputy Commissioner, the Commissioner and eventually by a suit instituted in a Court under S. 62. The present suit is not brought under or in conformity with S.62 and consequently, in so far as the suit claims the relief of injunction restraining the levy of contribution and audit fees under Act XIX of 1951, it is barred by S. 93 of the Act: The decision of the Board dated February 12, 1932 was given under Act II of 1927 and was final for purposes of that Act, but it is not final for purposes of Act XIX of 1951. 10. We shall next consider the claim of injunction restraining the levy of contribution and audit fees under Act II of 1927, By its order dated February 12, 1932, the Board had decided that the institution was outside the purview of Act II of 1927. That decision was given under S. 84(1) of the Act. No application was made to the Court to modify or set aside the decision in accordance with S. 84(2). Consequently by the express words of S. 84(2), the decision of the Board became final, and for purposes of Act II of 1927, the correctness of the decision is not now open to challenge on the ground that it is erroneous. But Mr. Chetty argued that the decision, though binding on the institution, is not binding on the Board. We cannot accept this contention. The decision is final and binding on the Board also for purposes of Act II of 1927. Mr. Chetty argued secondly that in view of Ss. 13 and 15 of the Madras General Clauses Act (Madras Act I of 1891) the Board could decide the question whether the plaintiff is a religious institution as often as occasions arose, and its power was not exhausted by the decision given on February 12, 1932. This argument is misconceived. The Sections relied upon do not authorise revocation or annulment of a decision, which has become final. Mr. Chetty next contended that the character of the institution was changed by the will of Ganapathiswamigal, dated December 12, 1935, and consequently, the decision dated February 12, 1932 ceased to be binding under Act II of 1927. This contention must Also be rejected. Ganapathiswamigal had no power to change the character of the institution, and, as a matter of fact, he did not purport to do so by his will. Mr. Chetty next contended that by making the assessment of the contributions under S. 70 of the Act, the Board gave a decision under Section 84(1) that the institution was a Math as defined in the Act, and that decision has become final under S.84 (2). There is no substance in this contention. The order of assessment is not produced. It is not shown that any dispute then arose whether the institution was a Math as defined in the Act, or that the Board decided that dispute by its order of assessment. 11. Mr. Chetty argued that by reason of S. 103(i) of Act XIX of 1951, all contributions under Act II of 1927 are payable under Act XIX of 1951 and the assessment and demand in respect of those contributions are enforceable under the latter Act and consequently the suit challenging such assessment and demand is barred by S. 93 of Act XIX of 1951. There is no substance in this contention. As the institution was not Math within the meaning of Act II of 1927 in view of the final decision of the Board dated February 12, 1932 the contributions demanded under Act II of 1927 were not legally payable to the Board under that Act. Consequently, those contributions were not payable under Act XIX of 1951, and the assessment and demand in respect thereof were not enforceable under the latter Act by reason of S. 103(i)thereof. Section 93 of Act XIX of 1951 did not bar a suit pending on the date of commencement of the Act claiming an injunction restraining the levy of contributions and audit fees under Act II of 1927 on the ground that the institution was outside the purview of Act II of 1927. 12. Mr. Chetty lastly contended that in view of the conduct of Muthuramalingam asking the Board to interfere with the management of the institution on the ground that it is a Math, the plaintiff is estopped from asserting that it is not a Math within the purview of Act II of 1927. This contention must be rejected. The Board could not levy contribution from an institution which was not a Math under Act II of 1927 having regard to the final decision of the Board dated February 12, 1932. Estoppel could not confer on the Board a power which it did not otherwise possess under the Act. Moreover, it is not shown that by reason of the acts of Muthuramalingam, the Board came to believe that the institution was a Math and to act upon such belief. The plaintiff is not estoppel by any act or conduct of Muthuramalingam from contending that it is not a Math within the meaning of Act II of 1927. | 1[ds]In view of our conclusions on other points, we think that it is not open to us to decide in this appeal whether the institution is a Math within the meaning of those Acts, and the point must be left open7. The suit, as it stands now, is a composite suit, claiming two different reliefs, namely, (1), an injunction restraining the levy of contributions and audit fees under Act II of 1927, and (2) an injunction restraining the levy of contributions and audit fees under Act XIX of 1951. The two reliefs must be considered separatelyWe cannot accept this contention. The decision is final and binding on the Board also for purposes of Act II of 192710. We shall next consider the claim of injunction restraining the levy of contribution and audit fees under Act II of 1927, By its order dated February 12, 1932, the Board had decided that the institution was outside the purview of Act II of 1927. That decision was given under S. 84(1) of the Act. No application was made to the Court to modify or set aside the decision in accordance with S. 84(2). Consequently by the express words of S. 84(2), the decision of the Board became final, and for purposes of Act II of 1927, the correctness of the decision is not now open to challenge on the ground that it is erroneousThis argument is misconceived. The Sections relied upon do not authorise revocation or annulment of a decision, which has become finalThis contention must Also be rejected. Ganapathiswamigal had no power to change the character of the institution, and, as a matter of fact, he did not purport to do so by his willThere is no substance in this contention. The order of assessment is not produced. It is not shown that any dispute then arose whether the institution was a Math as defined in the Act, or that the Board decided that dispute by its order of assessmentThere is no substance in this contention. As the institution was not Math within the meaning of Act II of 1927 in view of the final decision of the Board dated February 12, 1932 the contributions demanded under Act II of 1927 were not legally payable to the Board under that Act. Consequently, those contributions were not payable under Act XIX of 1951, and the assessment and demand in respect thereof were not enforceable under the latter Act by reason of S. 103(i)thereof. Section 93 of Act XIX of 1951 did not bar a suit pending on the date of commencement of the Act claiming an injunction restraining the levy of contributions and audit fees under Act II of 1927 on the ground that the institution was outside the purview of Act II of 1927This contention must be rejected. The Board could not levy contribution from an institution which was not a Math under Act II of 1927 having regard to the final decision of the Board dated February 12, 1932. Estoppel could not confer on the Board a power which it did not otherwise possess under the Act. Moreover, it is not shown that by reason of the acts of Muthuramalingam, the Board came to believe that the institution was a Math and to act upon such belief. The plaintiff is not estoppel by any act or conduct of Muthuramalingam from contending that it is not a Math within the meaning of Act II of 1927. | 1 | 3,065 | 641 | ### Instruction:
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from the order of, the Deputy Commissioner, and under S. 62 of the Act, any party aggrieved by the order of the Commissioner might within ninety days of the order institute a suit in the Court against the order. Section 93 of the Act read :"No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act." 9. Now, one of the disputes in this suit is whether the institution is a religious institution within the meaning of Act XIX of 1951. Specific provision is made in Ss. 57, 61 and 62 of the Act for determination of that dispute by the Deputy Commissioner, the Commissioner and eventually by a suit instituted in a Court under S. 62. The present suit is not brought under or in conformity with S.62 and consequently, in so far as the suit claims the relief of injunction restraining the levy of contribution and audit fees under Act XIX of 1951, it is barred by S. 93 of the Act: The decision of the Board dated February 12, 1932 was given under Act II of 1927 and was final for purposes of that Act, but it is not final for purposes of Act XIX of 1951. 10. We shall next consider the claim of injunction restraining the levy of contribution and audit fees under Act II of 1927, By its order dated February 12, 1932, the Board had decided that the institution was outside the purview of Act II of 1927. That decision was given under S. 84(1) of the Act. No application was made to the Court to modify or set aside the decision in accordance with S. 84(2). Consequently by the express words of S. 84(2), the decision of the Board became final, and for purposes of Act II of 1927, the correctness of the decision is not now open to challenge on the ground that it is erroneous. But Mr. Chetty argued that the decision, though binding on the institution, is not binding on the Board. We cannot accept this contention. The decision is final and binding on the Board also for purposes of Act II of 1927. Mr. Chetty argued secondly that in view of Ss. 13 and 15 of the Madras General Clauses Act (Madras Act I of 1891) the Board could decide the question whether the plaintiff is a religious institution as often as occasions arose, and its power was not exhausted by the decision given on February 12, 1932. This argument is misconceived. The Sections relied upon do not authorise revocation or annulment of a decision, which has become final. Mr. Chetty next contended that the character of the institution was changed by the will of Ganapathiswamigal, dated December 12, 1935, and consequently, the decision dated February 12, 1932 ceased to be binding under Act II of 1927. This contention must Also be rejected. Ganapathiswamigal had no power to change the character of the institution, and, as a matter of fact, he did not purport to do so by his will. Mr. Chetty next contended that by making the assessment of the contributions under S. 70 of the Act, the Board gave a decision under Section 84(1) that the institution was a Math as defined in the Act, and that decision has become final under S.84 (2). There is no substance in this contention. The order of assessment is not produced. It is not shown that any dispute then arose whether the institution was a Math as defined in the Act, or that the Board decided that dispute by its order of assessment. 11. Mr. Chetty argued that by reason of S. 103(i) of Act XIX of 1951, all contributions under Act II of 1927 are payable under Act XIX of 1951 and the assessment and demand in respect of those contributions are enforceable under the latter Act and consequently the suit challenging such assessment and demand is barred by S. 93 of Act XIX of 1951. There is no substance in this contention. As the institution was not Math within the meaning of Act II of 1927 in view of the final decision of the Board dated February 12, 1932 the contributions demanded under Act II of 1927 were not legally payable to the Board under that Act. Consequently, those contributions were not payable under Act XIX of 1951, and the assessment and demand in respect thereof were not enforceable under the latter Act by reason of S. 103(i)thereof. Section 93 of Act XIX of 1951 did not bar a suit pending on the date of commencement of the Act claiming an injunction restraining the levy of contributions and audit fees under Act II of 1927 on the ground that the institution was outside the purview of Act II of 1927. 12. Mr. Chetty lastly contended that in view of the conduct of Muthuramalingam asking the Board to interfere with the management of the institution on the ground that it is a Math, the plaintiff is estopped from asserting that it is not a Math within the purview of Act II of 1927. This contention must be rejected. The Board could not levy contribution from an institution which was not a Math under Act II of 1927 having regard to the final decision of the Board dated February 12, 1932. Estoppel could not confer on the Board a power which it did not otherwise possess under the Act. Moreover, it is not shown that by reason of the acts of Muthuramalingam, the Board came to believe that the institution was a Math and to act upon such belief. The plaintiff is not estoppel by any act or conduct of Muthuramalingam from contending that it is not a Math within the meaning of Act II of 1927.
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In view of our conclusions on other points, we think that it is not open to us to decide in this appeal whether the institution is a Math within the meaning of those Acts, and the point must be left open7. The suit, as it stands now, is a composite suit, claiming two different reliefs, namely, (1), an injunction restraining the levy of contributions and audit fees under Act II of 1927, and (2) an injunction restraining the levy of contributions and audit fees under Act XIX of 1951. The two reliefs must be considered separatelyWe cannot accept this contention. The decision is final and binding on the Board also for purposes of Act II of 192710. We shall next consider the claim of injunction restraining the levy of contribution and audit fees under Act II of 1927, By its order dated February 12, 1932, the Board had decided that the institution was outside the purview of Act II of 1927. That decision was given under S. 84(1) of the Act. No application was made to the Court to modify or set aside the decision in accordance with S. 84(2). Consequently by the express words of S. 84(2), the decision of the Board became final, and for purposes of Act II of 1927, the correctness of the decision is not now open to challenge on the ground that it is erroneousThis argument is misconceived. The Sections relied upon do not authorise revocation or annulment of a decision, which has become finalThis contention must Also be rejected. Ganapathiswamigal had no power to change the character of the institution, and, as a matter of fact, he did not purport to do so by his willThere is no substance in this contention. The order of assessment is not produced. It is not shown that any dispute then arose whether the institution was a Math as defined in the Act, or that the Board decided that dispute by its order of assessmentThere is no substance in this contention. As the institution was not Math within the meaning of Act II of 1927 in view of the final decision of the Board dated February 12, 1932 the contributions demanded under Act II of 1927 were not legally payable to the Board under that Act. Consequently, those contributions were not payable under Act XIX of 1951, and the assessment and demand in respect thereof were not enforceable under the latter Act by reason of S. 103(i)thereof. Section 93 of Act XIX of 1951 did not bar a suit pending on the date of commencement of the Act claiming an injunction restraining the levy of contributions and audit fees under Act II of 1927 on the ground that the institution was outside the purview of Act II of 1927This contention must be rejected. The Board could not levy contribution from an institution which was not a Math under Act II of 1927 having regard to the final decision of the Board dated February 12, 1932. Estoppel could not confer on the Board a power which it did not otherwise possess under the Act. Moreover, it is not shown that by reason of the acts of Muthuramalingam, the Board came to believe that the institution was a Math and to act upon such belief. The plaintiff is not estoppel by any act or conduct of Muthuramalingam from contending that it is not a Math within the meaning of Act II of 1927.
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Tharoo Mal Vs. Puran Chand Pandey & Others | carried out by the Board. 5. As regards the first contention, we find it difficult to permit the appellant to advance it here for the first time. It is not found in his writ petition. It was not advanced in that form before the High Court. It is not even found in the special leave petition in this particular form. However, even if we were to allow this question to be argued, we find that the objections filed by the petitioner on 16 September, 1972, were really objections to the original proposal and not to the modified proposal at all. Section 132(3) gives a right only to actual objectors to the modified proposals to have their objections dealt with under section 132(1) of the Act. This necessarily means that the objections should be at least before the Board when it passes the resolution on modified proposals. After all, that section 132(1) indicates about the manner in which the objections are be dealt with is that they should be considered before the passing of the special resolution. Now, if the objections are not there at all when the initial special resolution is passed or even when the modified proposals were passed, it is impossible for the Board to deal with them in the manner prescribed by section 132(1) of the Act. Since the duty to send objections could arise only subsequent to the procedure prescribed by section 132(1) of the Act the contention that the objections should have been sent to the Prescribed Authority to be considered because of any mandatory duty resulting from the provisions of section 132(1) and (3) of the Act must fail. It may be mentioned that we are not concerned here with the validity of any of the provisions on the ground of their reasonableness or otherwise No, such question has been argued before us. We have, therefore, to proceed on the assumption that the provisions of the Act are valid.So far as section 132(4) is concerned, it may be possible to so interpret the provisions as to confine objections to be sent to the Prescribed Authority to only those which the Board took into consideration. Nevertheless, when we examine the wide language in which section 132(4) is couched conferring a right to object, without any restriction, we find it difficult to exclude the right of the petitioner to have his objections sent to the Prescribed Authority. Apparently, section 132(4) covers any objections whatsoever, whether made within a fortnight or beyond a fortnight, provided they are sent in before the matter is submitted to the Prescribed Authority. Indeed, we find no statutory bar against the Prescribed Authority itself considering the objections which may be filed before it if the interests of justice go require. But, the question which arises before us is whether the non-observance by the Board of a duty to send the appellants objections to the Prescribed Authority, assuming it is there, would invalidate the imposition of the modified tax. This , we think, would depend upon whether we interpret provisions of section 132(4) as mandatory or as directory so far as submission of objections, not submitted within sufficient time so as to be considered by the Board, are concerned. 6. As we have already observed, no provision of the Act has been Challenged. Section 1 35 (3) of the Act reads as follows:" 135. Imposition of tax.- (1)........................ (2)............. ......................... (3) A notification of the imposition of a tax under sub section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act." 7. It is true that, if there is such a gross breach of the rules that the proposal sanctioned could not be deemed to be "imposition of a tax" at all, section 135(3) may not bar the consideration of such basic infirmity in the proceedings which make them no proceedings at all in the eyes of the law. This is the most that can be said on the strength of Buland Sugar v. Municipal Board, ([1965](1)S.C.R.970.) which is strongly relied upon by Mr. Chitale.Mr. Yogeshwar Prasad, appearing o n behalf of the Municipal Board however, pointed out that the Buland Sugar case was decided before the proviso to section 132(2) was added in 1964. It does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by the non-consideration of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the tax. 8. It may perhaps also be pointed out that, if the incidence of a tax is unfair, a representation can be made to the Government under section 137 of the Act even after the imposition. Therefore, if there is any gross injustice, which the petitioner has not been able to make out before us he can still approach the Government for relief in case he can make out a case for relief under section 137 of the Act. | 0[ds]As regards the first contention, we find it difficult to permit the appellant to advance it here for the first time. It is not found in his writ petition. It was not advanced in that form before the High Court. It is not even found in the special leave petition in this particular form. However, even if we were to allow this question to be argued, we find that the objections filed by the petitioner on 16 September, 1972, were really objections to the original proposal and not to the modified proposal at all. Section 132(3) gives a right only to actual objectors to the modified proposals to have their objections dealt with under section 132(1) of the Act. This necessarily means that the objections should be at least before the Board when it passes the resolution on modified proposals. After all, that section 132(1) indicates about the manner in which the objections are be dealt with is that they should be considered before the passing of the special resolution. Now, if the objections are not there at all when the initial special resolution is passed or even when the modified proposals were passed, it is impossible for the Board to deal with them in the manner prescribed by section 132(1) of the Act. Since the duty to send objections could arise only subsequent to the procedure prescribed by section 132(1) of the Act the contention that the objections should have been sent to the Prescribed Authority to be considered because of any mandatory duty resulting from the provisions of section 132(1) and (3) of the Act must fail. It may be mentioned that we are not concerned here with the validity of any of the provisions on the ground of their reasonableness or otherwise No, such question has been argued before us. We have, therefore, to proceed on the assumption that the provisions of the Act are valid.So far as section 132(4) is concerned, it may be possible to so interpret the provisions as to confine objections to be sent to the Prescribed Authority to only those which the Board took into consideration. Nevertheless, when we examine the wide language in which section 132(4) is couched conferring a right to object, without any restriction, we find it difficult to exclude the right of the petitioner to have his objections sent to the Prescribed Authority. Apparently, section 132(4) covers any objections whatsoever, whether made within a fortnight or beyond a fortnight, provided they are sent in before the matter is submitted to the Prescribed Authority. Indeed, we find no statutory bar against the Prescribed Authority itself considering the objections which may be filed before it if the interests of justice go require. But, the question which arises before us is whether the non-observance by the Board of a duty to send the appellants objections to the Prescribed Authority, assuming it is there, would invalidate the imposition of the modified tax. This , we think, would depend upon whether we interpret provisions of section 132(4) as mandatory or as directory so far as submission of objections, not submitted within sufficient time so as to be considered by the Board, are concernedIt is true that, if there is such a gross breach of the rules that the proposal sanctioned could not be deemed to be "imposition of a tax" at all, section 135(3) may not bar the consideration of such basic infirmity in the proceedings which make them no proceedings at all in the eyes of the law. This is the most that can be said on the strength of Buland Sugar v. Municipal Board, ([1965](1)S.C.R.970.) which is strongly relied upon by Mr. Chitale.. Yogeshwar Prasad, appearing o n behalf of the Municipal Board however, pointed out that the Buland Sugar case was decided before the proviso to section 132(2) was added in 1964.It does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by the non-consideration of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the taxIt may perhaps also be pointed out that, if the incidence of a tax is unfair, a representation can be made to the Government under section 137 of the Act even after the imposition. Therefore, if there is any gross injustice, which the petitioner has not been able to make out before us he can still approach the Government for relief in case he can make out a case for relief under section 137 of the ActIt does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by then of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the | 0 | 3,077 | 1,292 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
carried out by the Board. 5. As regards the first contention, we find it difficult to permit the appellant to advance it here for the first time. It is not found in his writ petition. It was not advanced in that form before the High Court. It is not even found in the special leave petition in this particular form. However, even if we were to allow this question to be argued, we find that the objections filed by the petitioner on 16 September, 1972, were really objections to the original proposal and not to the modified proposal at all. Section 132(3) gives a right only to actual objectors to the modified proposals to have their objections dealt with under section 132(1) of the Act. This necessarily means that the objections should be at least before the Board when it passes the resolution on modified proposals. After all, that section 132(1) indicates about the manner in which the objections are be dealt with is that they should be considered before the passing of the special resolution. Now, if the objections are not there at all when the initial special resolution is passed or even when the modified proposals were passed, it is impossible for the Board to deal with them in the manner prescribed by section 132(1) of the Act. Since the duty to send objections could arise only subsequent to the procedure prescribed by section 132(1) of the Act the contention that the objections should have been sent to the Prescribed Authority to be considered because of any mandatory duty resulting from the provisions of section 132(1) and (3) of the Act must fail. It may be mentioned that we are not concerned here with the validity of any of the provisions on the ground of their reasonableness or otherwise No, such question has been argued before us. We have, therefore, to proceed on the assumption that the provisions of the Act are valid.So far as section 132(4) is concerned, it may be possible to so interpret the provisions as to confine objections to be sent to the Prescribed Authority to only those which the Board took into consideration. Nevertheless, when we examine the wide language in which section 132(4) is couched conferring a right to object, without any restriction, we find it difficult to exclude the right of the petitioner to have his objections sent to the Prescribed Authority. Apparently, section 132(4) covers any objections whatsoever, whether made within a fortnight or beyond a fortnight, provided they are sent in before the matter is submitted to the Prescribed Authority. Indeed, we find no statutory bar against the Prescribed Authority itself considering the objections which may be filed before it if the interests of justice go require. But, the question which arises before us is whether the non-observance by the Board of a duty to send the appellants objections to the Prescribed Authority, assuming it is there, would invalidate the imposition of the modified tax. This , we think, would depend upon whether we interpret provisions of section 132(4) as mandatory or as directory so far as submission of objections, not submitted within sufficient time so as to be considered by the Board, are concerned. 6. As we have already observed, no provision of the Act has been Challenged. Section 1 35 (3) of the Act reads as follows:" 135. Imposition of tax.- (1)........................ (2)............. ......................... (3) A notification of the imposition of a tax under sub section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act." 7. It is true that, if there is such a gross breach of the rules that the proposal sanctioned could not be deemed to be "imposition of a tax" at all, section 135(3) may not bar the consideration of such basic infirmity in the proceedings which make them no proceedings at all in the eyes of the law. This is the most that can be said on the strength of Buland Sugar v. Municipal Board, ([1965](1)S.C.R.970.) which is strongly relied upon by Mr. Chitale.Mr. Yogeshwar Prasad, appearing o n behalf of the Municipal Board however, pointed out that the Buland Sugar case was decided before the proviso to section 132(2) was added in 1964. It does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by the non-consideration of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the tax. 8. It may perhaps also be pointed out that, if the incidence of a tax is unfair, a representation can be made to the Government under section 137 of the Act even after the imposition. Therefore, if there is any gross injustice, which the petitioner has not been able to make out before us he can still approach the Government for relief in case he can make out a case for relief under section 137 of the Act.
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passes the resolution on modified proposals. After all, that section 132(1) indicates about the manner in which the objections are be dealt with is that they should be considered before the passing of the special resolution. Now, if the objections are not there at all when the initial special resolution is passed or even when the modified proposals were passed, it is impossible for the Board to deal with them in the manner prescribed by section 132(1) of the Act. Since the duty to send objections could arise only subsequent to the procedure prescribed by section 132(1) of the Act the contention that the objections should have been sent to the Prescribed Authority to be considered because of any mandatory duty resulting from the provisions of section 132(1) and (3) of the Act must fail. It may be mentioned that we are not concerned here with the validity of any of the provisions on the ground of their reasonableness or otherwise No, such question has been argued before us. We have, therefore, to proceed on the assumption that the provisions of the Act are valid.So far as section 132(4) is concerned, it may be possible to so interpret the provisions as to confine objections to be sent to the Prescribed Authority to only those which the Board took into consideration. Nevertheless, when we examine the wide language in which section 132(4) is couched conferring a right to object, without any restriction, we find it difficult to exclude the right of the petitioner to have his objections sent to the Prescribed Authority. Apparently, section 132(4) covers any objections whatsoever, whether made within a fortnight or beyond a fortnight, provided they are sent in before the matter is submitted to the Prescribed Authority. Indeed, we find no statutory bar against the Prescribed Authority itself considering the objections which may be filed before it if the interests of justice go require. But, the question which arises before us is whether the non-observance by the Board of a duty to send the appellants objections to the Prescribed Authority, assuming it is there, would invalidate the imposition of the modified tax. This , we think, would depend upon whether we interpret provisions of section 132(4) as mandatory or as directory so far as submission of objections, not submitted within sufficient time so as to be considered by the Board, are concernedIt is true that, if there is such a gross breach of the rules that the proposal sanctioned could not be deemed to be "imposition of a tax" at all, section 135(3) may not bar the consideration of such basic infirmity in the proceedings which make them no proceedings at all in the eyes of the law. This is the most that can be said on the strength of Buland Sugar v. Municipal Board, ([1965](1)S.C.R.970.) which is strongly relied upon by Mr. Chitale.. Yogeshwar Prasad, appearing o n behalf of the Municipal Board however, pointed out that the Buland Sugar case was decided before the proviso to section 132(2) was added in 1964.It does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by the non-consideration of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the taxIt may perhaps also be pointed out that, if the incidence of a tax is unfair, a representation can be made to the Government under section 137 of the Act even after the imposition. Therefore, if there is any gross injustice, which the petitioner has not been able to make out before us he can still approach the Government for relief in case he can make out a case for relief under section 137 of the ActIt does appear to us that the effect of the proviso is that, by dispensing with even the publication of the modified proposals, no such right of the appellant is violated as could be considered a condition precedent to the validity of the proceedings. Nevertheless, if the petitioner could have made out a case of such injustice due to some irregularity that we should deem the imposition of the tax to be vitiated by then of a vital matter, we could have taken the view that section 135(3) will not bar consideration of a vital infirmity, in as much patent injustice has resulted from it, in the imposition of a tax. If it could be argued that there is no imposition of the tax at allas contemplated by law, section 135(3) may not have cured the irregularity. But, no such infirmity has been pointed out to US. The result is that, whatever irregularity there may be in not forwarding the objections of the appellant to the Prescribed Authority, as the Board should have done under section 132(4 ) of the Act, the irregularity seems to be cured by an application of the provisions of section 135(3) of the Act as the Government had notified the imposition of the
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Asa Singh & Others Vs. State of Punjab | and in my defence I also caused some injuries to Hardev Singh, Sarwan Singh and Gurmit Singh." No evidence was produced in defence. 9. The learned Sessions Judge accepted the prosecution case regarding the infliction of injuries by the five accused. He was also of the view that the eye witnesses had attempted to suppress the part played by them and the deceased regarding the injuries to be found on the person of Asa Singh. This fact in the opinion of the Sessions Judge did not justify rejection of the evidence of the eye witnesses.The version of the accused was rejected. The accused were accordingly convicted and sentenced as above. The High Court also took the same view of the evidence as had been taken by the Sessions Judge. The conviction of the accused was conseqeuntly upheld. 10. There can be no manner of doubt that Hardev Singh, Sarwan Singh and Gurmit Singh were killed as a result of murderous assault upon them. Dr. Radha Krishan who performed post-mortem examination on the three dead bodies found nine injuries consisting of six incised wounds, one penetrating incised wound, one abrasion and one injury caused by the twisting of right arm on the body of Hardev Singh. Out of them, the following two injuries of Hardev Singh were individually sufficient to cause death in ordinary course of nature :"(1) An incised wound 4" x 1" x bone and brain deep on the left side of the scalp 3" above and parallel to the pinna of left ear cutting through the underlying lobe bone. (2) A penetrating incised wound 2" x 1/2" x deep into the abdominal cavity on the right side of the abdomen 1/2" below the right costal margin with part of small intestines protruding through the wound." 11. Sarwan Singh was found to have four injuries consisting of three incised wounds and one penetrating incised wound on his body. The following two injuries of Sarwan Singh were individually sufficient to cause death in ordinary course of nature :"(1) A penetrating incised wound 2" x 3/8" x deep into the left chest cavity on the left side of front of chest at the level of third left intercostal space along the left border of sternum. (2) An incised wound 2" x 1/2" x 5" deep on the front and upper third of left thigh." Left femoral artery was found cut underneath injury No. 2.12. Gurmit Singh had three incised wounds on his body. The following injury of Gurmit Singh was sufficient in ordinary course of nature to cause death."An incised wound 21/2" x 1/2" x deep and cutting up to the liver substance on the right side in front of chest, in the right mammary line 41/2" below the right nipple in the 9th intercostal space cutting through the 9th rib costal cartilage." 13. According to the prosecution case, the injuries on the bodies of Hardev Singh, Sarwan Singh and Gurmit Singh were caused by the five accused in the circumstances given above. The accused, however, denied that allegation. We have been taken through the evidence on record and are of the view that the case against Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh accused-appellants has been fully proved. Swaran Singh (P.W. 3) Sohan Singh (P.W. 4), Surinder Singh (P. W. 5) and Surjeet Singh (P. W. 6) have deposed about the causing of the injuries by Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh as alleged by the prosecution. The evidence in this respect was accepted by the Courts below and Mr. Kohli, who took us through that evidence, has not been able to point out anything as may induce us to take a different view.The part attributed to Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh by the eye witnesses is in accord with the medical evidence and we find no cogent ground to disbelieve the evidence of the eye witnesses in this respect. The evidence of eye witnesses is also corroborated by the fact that spear P. 1 stained with human blood was secured from Asa Singh. Likewise, spear P. 2 and kirpan P. 3 both of which were stained with human blood, were recovered in pursuance of the disclosure statement of Darshan Singh and Sewa Singh accused. 14. The defence version given by Asa Singh and Darshan Singh is not at all convincing and has been rightly rejected by the Courts below. It is in our opinion, most difficult to believe that Asa Singh and Darshan Singh would escape with minor and superficial injuries if they were attacked in their house by Hardev Singh, Sarwan Singh and Gurmit Singh who were said to have been armed with weapons. According to Dr. Mela Singh, the injuries which were found on the persons of those two accused were of a simple nature and most of them were of a superficial character. 15. Coming to the case of Iqbal Singh, we find that according to the prosecution case, he was armed with a spear and gave a spear blow on the thigh of Sarwan Singh and in the chest of Gurmit Singh. None of the two injuries which were attributed to Iqbal Singh were found by Dr. Radha Krishan to be penetrating or punctured wounds. There is not even the evidence of the doctor that the injury on the thigh of Sarwan Singh and the wound in the chest of Gurmit Singh could be caused with a spear. The nature of the two injuries in question, in our opinion, was such that it seems likely that they were caused with a Kirpan and not with a spear. 16. Another circumstance of which note may be made is that no spear, much less a blood stained spear, was recovered during the investigation of the case from Iqbal Singh or at his instance. We thus find that there are circumstances which create reasonable doubt regarding the complicity of Iqbal Singh. Iqbal Singh must necessarily have been benefit thereof. | 1[ds]We have been taken through the evidence on record and are of the view that the case against Asa Singh, Sewa Singh, Darshan Singh and Kehar Singhs has been fully proved. Swaran Singh (P.W. 3) Sohan Singh (P.W. 4), Surinder Singh (P. W. 5) and Surjeet Singh (P. W. 6) have deposed about the causing of the injuries by Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh as alleged by the prosecution. The evidence in this respect was accepted by the Courts below and Mr. Kohli, who took us through that evidence, has not been able to point out anything as may induce us to take a different view.The part attributed to Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh by the eye witnesses is in accord with the medical evidence and we find no cogent ground to disbelieve the evidence of the eye witnesses in this respect. The evidence of eye witnesses is also corroborated by the fact that spear P. 1 stained with human blood was secured from Asa Singh. Likewise, spear P. 2 and kirpan P. 3 both of which were stained with human blood, were recovered in pursuance of the disclosure statement of Darshan Singh and Sewa Singh accused14. The defence version given by Asa Singh and Darshan Singh is not at all convincing and has been rightly rejected by the Courts below. It is in our opinion, most difficult to believe that Asa Singh and Darshan Singh would escape with minor and superficial injuries if they were attacked in their house by Hardev Singh, Sarwan Singh and Gurmit Singh who were said to have been armed with weapons. According to Dr. Mela Singh, the injuries which were found on the persons of those two accused were of a simple nature and most of them were of a superficial character15. Coming to the case of Iqbal Singh, we find that according to the prosecution case, he was armed with a spear and gave a spear blow on the thigh of Sarwan Singh and in the chest of Gurmit Singh. None of the two injuries which were attributed to Iqbal Singh were found by Dr. Radha Krishan to be penetrating or punctured wounds. There is not even the evidence of the doctor that the injury on the thigh of Sarwan Singh and the wound in the chest of Gurmit Singh could be caused with a spear. The nature of the two injuries in question, in our opinion, was such that it seems likely that they were caused with a Kirpan and not with a spear16. Another circumstance of which note may be made is that no spear, much less a blood stained spear, was recovered during the investigation of the case from Iqbal Singh or at his instance. We thus find that there are circumstances which create reasonable doubt regarding the complicity of Iqbal Singh. Iqbal Singh must necessarily have been benefit thereof. | 1 | 2,695 | 537 | ### Instruction:
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and in my defence I also caused some injuries to Hardev Singh, Sarwan Singh and Gurmit Singh." No evidence was produced in defence. 9. The learned Sessions Judge accepted the prosecution case regarding the infliction of injuries by the five accused. He was also of the view that the eye witnesses had attempted to suppress the part played by them and the deceased regarding the injuries to be found on the person of Asa Singh. This fact in the opinion of the Sessions Judge did not justify rejection of the evidence of the eye witnesses.The version of the accused was rejected. The accused were accordingly convicted and sentenced as above. The High Court also took the same view of the evidence as had been taken by the Sessions Judge. The conviction of the accused was conseqeuntly upheld. 10. There can be no manner of doubt that Hardev Singh, Sarwan Singh and Gurmit Singh were killed as a result of murderous assault upon them. Dr. Radha Krishan who performed post-mortem examination on the three dead bodies found nine injuries consisting of six incised wounds, one penetrating incised wound, one abrasion and one injury caused by the twisting of right arm on the body of Hardev Singh. Out of them, the following two injuries of Hardev Singh were individually sufficient to cause death in ordinary course of nature :"(1) An incised wound 4" x 1" x bone and brain deep on the left side of the scalp 3" above and parallel to the pinna of left ear cutting through the underlying lobe bone. (2) A penetrating incised wound 2" x 1/2" x deep into the abdominal cavity on the right side of the abdomen 1/2" below the right costal margin with part of small intestines protruding through the wound." 11. Sarwan Singh was found to have four injuries consisting of three incised wounds and one penetrating incised wound on his body. The following two injuries of Sarwan Singh were individually sufficient to cause death in ordinary course of nature :"(1) A penetrating incised wound 2" x 3/8" x deep into the left chest cavity on the left side of front of chest at the level of third left intercostal space along the left border of sternum. (2) An incised wound 2" x 1/2" x 5" deep on the front and upper third of left thigh." Left femoral artery was found cut underneath injury No. 2.12. Gurmit Singh had three incised wounds on his body. The following injury of Gurmit Singh was sufficient in ordinary course of nature to cause death."An incised wound 21/2" x 1/2" x deep and cutting up to the liver substance on the right side in front of chest, in the right mammary line 41/2" below the right nipple in the 9th intercostal space cutting through the 9th rib costal cartilage." 13. According to the prosecution case, the injuries on the bodies of Hardev Singh, Sarwan Singh and Gurmit Singh were caused by the five accused in the circumstances given above. The accused, however, denied that allegation. We have been taken through the evidence on record and are of the view that the case against Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh accused-appellants has been fully proved. Swaran Singh (P.W. 3) Sohan Singh (P.W. 4), Surinder Singh (P. W. 5) and Surjeet Singh (P. W. 6) have deposed about the causing of the injuries by Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh as alleged by the prosecution. The evidence in this respect was accepted by the Courts below and Mr. Kohli, who took us through that evidence, has not been able to point out anything as may induce us to take a different view.The part attributed to Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh by the eye witnesses is in accord with the medical evidence and we find no cogent ground to disbelieve the evidence of the eye witnesses in this respect. The evidence of eye witnesses is also corroborated by the fact that spear P. 1 stained with human blood was secured from Asa Singh. Likewise, spear P. 2 and kirpan P. 3 both of which were stained with human blood, were recovered in pursuance of the disclosure statement of Darshan Singh and Sewa Singh accused. 14. The defence version given by Asa Singh and Darshan Singh is not at all convincing and has been rightly rejected by the Courts below. It is in our opinion, most difficult to believe that Asa Singh and Darshan Singh would escape with minor and superficial injuries if they were attacked in their house by Hardev Singh, Sarwan Singh and Gurmit Singh who were said to have been armed with weapons. According to Dr. Mela Singh, the injuries which were found on the persons of those two accused were of a simple nature and most of them were of a superficial character. 15. Coming to the case of Iqbal Singh, we find that according to the prosecution case, he was armed with a spear and gave a spear blow on the thigh of Sarwan Singh and in the chest of Gurmit Singh. None of the two injuries which were attributed to Iqbal Singh were found by Dr. Radha Krishan to be penetrating or punctured wounds. There is not even the evidence of the doctor that the injury on the thigh of Sarwan Singh and the wound in the chest of Gurmit Singh could be caused with a spear. The nature of the two injuries in question, in our opinion, was such that it seems likely that they were caused with a Kirpan and not with a spear. 16. Another circumstance of which note may be made is that no spear, much less a blood stained spear, was recovered during the investigation of the case from Iqbal Singh or at his instance. We thus find that there are circumstances which create reasonable doubt regarding the complicity of Iqbal Singh. Iqbal Singh must necessarily have been benefit thereof.
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1
### Explanation:
We have been taken through the evidence on record and are of the view that the case against Asa Singh, Sewa Singh, Darshan Singh and Kehar Singhs has been fully proved. Swaran Singh (P.W. 3) Sohan Singh (P.W. 4), Surinder Singh (P. W. 5) and Surjeet Singh (P. W. 6) have deposed about the causing of the injuries by Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh as alleged by the prosecution. The evidence in this respect was accepted by the Courts below and Mr. Kohli, who took us through that evidence, has not been able to point out anything as may induce us to take a different view.The part attributed to Asa Singh, Sewa Singh, Darshan Singh and Kehar Singh by the eye witnesses is in accord with the medical evidence and we find no cogent ground to disbelieve the evidence of the eye witnesses in this respect. The evidence of eye witnesses is also corroborated by the fact that spear P. 1 stained with human blood was secured from Asa Singh. Likewise, spear P. 2 and kirpan P. 3 both of which were stained with human blood, were recovered in pursuance of the disclosure statement of Darshan Singh and Sewa Singh accused14. The defence version given by Asa Singh and Darshan Singh is not at all convincing and has been rightly rejected by the Courts below. It is in our opinion, most difficult to believe that Asa Singh and Darshan Singh would escape with minor and superficial injuries if they were attacked in their house by Hardev Singh, Sarwan Singh and Gurmit Singh who were said to have been armed with weapons. According to Dr. Mela Singh, the injuries which were found on the persons of those two accused were of a simple nature and most of them were of a superficial character15. Coming to the case of Iqbal Singh, we find that according to the prosecution case, he was armed with a spear and gave a spear blow on the thigh of Sarwan Singh and in the chest of Gurmit Singh. None of the two injuries which were attributed to Iqbal Singh were found by Dr. Radha Krishan to be penetrating or punctured wounds. There is not even the evidence of the doctor that the injury on the thigh of Sarwan Singh and the wound in the chest of Gurmit Singh could be caused with a spear. The nature of the two injuries in question, in our opinion, was such that it seems likely that they were caused with a Kirpan and not with a spear16. Another circumstance of which note may be made is that no spear, much less a blood stained spear, was recovered during the investigation of the case from Iqbal Singh or at his instance. We thus find that there are circumstances which create reasonable doubt regarding the complicity of Iqbal Singh. Iqbal Singh must necessarily have been benefit thereof.
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Shakuntala Modi (Ms.) Vs. Om Prakash Bharuka | 1. The petitioner and the respondent were wife and husband, and got three children out of the wedlock. The marriage has been dissolved by a decree of divorce. The parties are now litigating for the custody of their children 2. By the present application the petitioner has prayed for transfer of a case instituted by the respondent before Guardian Judge, Delhi, to the Court of District Judge, Dibrugarh, where an earlier application filed by the petitioner is pending. It is stated on behalf of the petitioner that the two proceedings should be heard by the same court and that for the reasons mentioned in the petition, the appropriate place is Dibrugarh and not Delhi3. The respondent has appeared in person and has contended that having regard to the circumstances mentioned in his counter affidavit, the transfer of the case from Delhi will cause great hardship to him. The parties have made a large number of allegations in their affidavits touching the merits of their respective claims for custody of the children. We are not concerned with these statements at the stage as the matter has to be examined and decided on merits when the cases are heard in court below4. The respondent has stated before us that he is not likely to get proper legal assistance at Dibrugarh where the petitioners uncle who is a rich person stays. However, he has not a suggested that on account of any financial difficulties he is not in a position to prosecute the litigation properly at Dibrugarh. On the other hand, he has offered to pay the expenses of the petitioner for travelling from Dibrugarh to Delhi by air, if the cases are heard at Delhi instead of Dibrugarh. His counter affidavit also indicates that he has advocate friends at Gauhati from whom he has received legal from time to time5. Having regard to the nature of the dispute involved in the two cases, we are of the view that it is highly expedient that the cases are heard by the same court. On an earlier occasion the respondent made an application for transfer of the Dibrugarh case of Delhi, which was rejected by the Court. The Dibrugarh case, therefore, has to be heard there. In the circumstances it is proper to transfer the Delhi case to Dibrugarh. Although it may cause the respondent some trouble of undertaking the journey to Dibrugarh but, for that reason in the facts of the present case it cannot be assumed that he will be prejudiced in prosecuting his case. If he is not in any financial difficulty, as it appears from the records and his own statement before this Court, he can make an appropriate arrangement for his representation at Dibrugarh and may not remain at Dibrugarh continuously for looking after the cases. It is expected that the trial Judge may fix a firm date for hearing of the cases to avoid adjournments so that the respondent may not have to pay repeated visits to Dibrugarh | 1[ds]5. Having regard to the nature of the dispute involved in the two cases, we are of the view that it is highly expedient that the cases are heard by the same court. On an earlier occasion the respondent made an application for transfer of the Dibrugarh case of Delhi, which was rejected by the Court. The Dibrugarh case, therefore, has to be heard there. In the circumstances it is proper to transfer the Delhi case to Dibrugarh. Although it may cause the respondent some trouble of undertaking the journey to Dibrugarh but, for that reason in the facts of the present case it cannot be assumed that he will be prejudiced in prosecuting his case. If he is not in any financial difficulty, as it appears from the records and his own statement before this Court, he can make an appropriate arrangement for his representation at Dibrugarh and may not remain at Dibrugarh continuously for looking after the cases. It is expected that the trial Judge may fix a firm date for hearing of the cases to avoid adjournments so that the respondent may not have to pay repeated visits to Dibrugarh | 1 | 537 | 212 | ### 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. The petitioner and the respondent were wife and husband, and got three children out of the wedlock. The marriage has been dissolved by a decree of divorce. The parties are now litigating for the custody of their children 2. By the present application the petitioner has prayed for transfer of a case instituted by the respondent before Guardian Judge, Delhi, to the Court of District Judge, Dibrugarh, where an earlier application filed by the petitioner is pending. It is stated on behalf of the petitioner that the two proceedings should be heard by the same court and that for the reasons mentioned in the petition, the appropriate place is Dibrugarh and not Delhi3. The respondent has appeared in person and has contended that having regard to the circumstances mentioned in his counter affidavit, the transfer of the case from Delhi will cause great hardship to him. The parties have made a large number of allegations in their affidavits touching the merits of their respective claims for custody of the children. We are not concerned with these statements at the stage as the matter has to be examined and decided on merits when the cases are heard in court below4. The respondent has stated before us that he is not likely to get proper legal assistance at Dibrugarh where the petitioners uncle who is a rich person stays. However, he has not a suggested that on account of any financial difficulties he is not in a position to prosecute the litigation properly at Dibrugarh. On the other hand, he has offered to pay the expenses of the petitioner for travelling from Dibrugarh to Delhi by air, if the cases are heard at Delhi instead of Dibrugarh. His counter affidavit also indicates that he has advocate friends at Gauhati from whom he has received legal from time to time5. Having regard to the nature of the dispute involved in the two cases, we are of the view that it is highly expedient that the cases are heard by the same court. On an earlier occasion the respondent made an application for transfer of the Dibrugarh case of Delhi, which was rejected by the Court. The Dibrugarh case, therefore, has to be heard there. In the circumstances it is proper to transfer the Delhi case to Dibrugarh. Although it may cause the respondent some trouble of undertaking the journey to Dibrugarh but, for that reason in the facts of the present case it cannot be assumed that he will be prejudiced in prosecuting his case. If he is not in any financial difficulty, as it appears from the records and his own statement before this Court, he can make an appropriate arrangement for his representation at Dibrugarh and may not remain at Dibrugarh continuously for looking after the cases. It is expected that the trial Judge may fix a firm date for hearing of the cases to avoid adjournments so that the respondent may not have to pay repeated visits to Dibrugarh
### Response:
1
### Explanation:
5. Having regard to the nature of the dispute involved in the two cases, we are of the view that it is highly expedient that the cases are heard by the same court. On an earlier occasion the respondent made an application for transfer of the Dibrugarh case of Delhi, which was rejected by the Court. The Dibrugarh case, therefore, has to be heard there. In the circumstances it is proper to transfer the Delhi case to Dibrugarh. Although it may cause the respondent some trouble of undertaking the journey to Dibrugarh but, for that reason in the facts of the present case it cannot be assumed that he will be prejudiced in prosecuting his case. If he is not in any financial difficulty, as it appears from the records and his own statement before this Court, he can make an appropriate arrangement for his representation at Dibrugarh and may not remain at Dibrugarh continuously for looking after the cases. It is expected that the trial Judge may fix a firm date for hearing of the cases to avoid adjournments so that the respondent may not have to pay repeated visits to Dibrugarh
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State Of A.P Vs. M/S.A.P.Paper Mills Ltd | tax levied is not a tax on railway freight; it is a tax on turnover, that is, on the aggregate of sale price received by the dealer in respect of sale of goods. 15. Earliest decisions on this point is in the case of Dyer Meankin Breweries Ltd. vs. State of Kerala, 1970 (Vol.26) STC 248. In this case, the appellant-Company manufactured liquor at various places in U.P. and Haryana, transported the goods from its breweries and distilleries to its place of business in Ernakulam and sold them there. When selling liquor to the customers, the appellant made out separate bills for ex-factory price and for freight and handling charges. The appellant claimed that the amount charged for freight and handling charges incurred by it in transporting the goods from the breweries and distilleries to the warehouse at Ernakulam had to be deducted under rule 9(f) of the Kerala General Sales Tax Rules, 1963, in determining its taxable turnover. 16. This Court held that all the expenditure incurred by the appellant towards freight and handling charges was incurred prior to the sale and was a component of the price for which the goods were sold and the appellant was not entitled to the deduction claimed. 17. Hindustan Sugar Mills Ltd. vs. State of Rajasthan & Ors. 1979(Vol.43) STC 13: This case relates to pre-sale charges. The question that arose in the assessment of the assessee to sales tax under the Rajasthan Sales Tax Act, 1954, and the Central Sales Tax Act, 1956, was whether the amount of freight deducted from the free on rail destination railway station price in the invoices made out by the assessee and paid by the purchasers formed part of the sale price within the meaning of the definition of that term in section 2(p) of the Rajasthan Act and section 2(h) of the Central Act. The sales tax authorities and the High Court took the view that the amount of freight formed part of the sale price and was, therefore, liable to be included in the turnover of the assessee for the purpose of assessment of sale tax. On appeal to this Court, this Court held as under: That the scheme of the Control Order was that the freight was payable by the producer and he recovered it from the purchaser as part of the f.o.r. destination railway station price. The provision in the contract that the delivery to the purchaser was complete as soon as the goods were put on rail and payment of the freight was the responsibility of the purchaser was wholly inconsistent with the scheme of the Control Order and must be held to be excluded by it. The Control Order was paramount, it had overriding effect and if it stipulated that the freight was payable by the producer, such stipulation must prevail, notwithstanding any term or condition of the contract to the contrary. Therefore, by reason of the provisions of the Control Order, which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed part of the sale price within the meaning of the first part of the definition of that term in section 2(p) of the Rajasthan Act and section 2(h) of the Central Act and was includible in the turnover of the assessee. Under the first part of the definition of sale price in section 2 (p) of the Rajasthan Act, the expression meant the amount payable to a dealer as consideration for the sale of any goods and, therefore, the concept of real price or actual price retainable by the dealer is irrelevant. The test is, what is the consideration passing from the purchaser to the dealer for the sale of the goods. It is immaterial to enquire as to how the amount of consideration is made up, whether it includes excise duty or sales tax or freight. The only relevant question to be considered is as to what is the amount payable by the purchaser to the dealer as consideration for sale and not as to what is the net consideration retainable by the dealer. 18. The decision of the Rajasthan High Court was affirmed by this Court. In a recent decision in the case of Greaves Chitram Limited vs. State of Tamil Nadu, 2003(133) STC, the Madras High Court held that freight is includible if the contract is for delivery at buyers place. In the above judgment, the Madras High Court held that: Though no written contract or agreement between the parties was available, from the purchase orders and invoices, a clue could be obtained to determine the nature and character of the transaction entered into between parties. These documents reveal that the dealer agreed to effect the delivery of the goods at the place of the buyer. What was further agreed to by the dealer was that freight charges would be pre-paid by it. If the contract was one for delivery at the destination railway station, risk continues to be that of the seller-dealer and consequently the freight charges paid are includible in the sale price exigible to tax. If the contract is one in which delivery to the purchaser would be complete as soon as the goods are put on rail at the place of despatch, the risk is that of the purchaser and the freight charges incurred are not includible in the sale price exigible to tax. Of course, this is not the invariable rule in all eventualities and circumstances, e.g. goods covered by the control orders like Cement Control Order. The dealer agreed to effect delivery at the place of the buyer and that apart, it had also paid the transport charges besides including the same in the invoice. Therefore the transport charges are includible in sale price. 19. In Ram Oxygen (P) Ltd. vs. Joint Commissioner (CT). 2004 (Vol.134) STC 240, the Tamil Nadu Taxation Special Tribunal took the similar view and held that freight is includible in turn over. | 1[ds]12. The finding of the Tribunal and the High Court that the transport and commission were charges incurred subsequent to the purchase of the hard wood and such charges do not represent the sale consideration is against the admitted fact on the side of the respondent who have clearly made the statement that the agents were paid a total amount which included the cost of raw material, transportation charges and commission. When the facts are not in dispute, the Tribunal and the High Court have erred in rendering a finding against the revenue18. The decision of the Rajasthan High Court was affirmed by this CourtIn a recent decision in the case of Greaves Chitram Limited vs. State of Tamil Nadu, 2003(133) STC, the Madras High Court held that freight is includible if the contract is for delivery at buyers place. In the above judgment, the Madras High Court held that:Though no written contract or agreement between the parties was available, from the purchase orders and invoices, a clue could be obtained to determine the nature and character of the transaction entered into between parties. These documents reveal that the dealer agreed to effect the delivery of the goods at the place of the buyer. What was further agreed to by the dealer was that freight charges would be pre-paid by it. If the contract was one for delivery at the destination railway station, risk continues to be that of the seller-dealer and consequently the freight charges paid are includible in the sale price exigible to tax. If the contract is one in which delivery to the purchaser would be complete as soon as the goods are put on rail at the place of despatch, the risk is that of the purchaser and the freight charges incurred are not includible in the sale price exigible to tax. Of course, this is not the invariable rule in all eventualities and circumstances, e.g. goods covered by the control orders like Cement Control Order. The dealer agreed to effect delivery at the place of the buyer and that apart, it had also paid the transport charges besides including the same in the invoice. Therefore the transport charges are includible in sale price19. In Ram Oxygen (P) Ltd. vs. Joint Commissioner (CT). 2004 (Vol.134) STC 240, the Tamil Nadu Taxation Special Tribunal took the similar view and held that freight is includible in turn over. | 1 | 3,875 | 443 | ### 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:
tax levied is not a tax on railway freight; it is a tax on turnover, that is, on the aggregate of sale price received by the dealer in respect of sale of goods. 15. Earliest decisions on this point is in the case of Dyer Meankin Breweries Ltd. vs. State of Kerala, 1970 (Vol.26) STC 248. In this case, the appellant-Company manufactured liquor at various places in U.P. and Haryana, transported the goods from its breweries and distilleries to its place of business in Ernakulam and sold them there. When selling liquor to the customers, the appellant made out separate bills for ex-factory price and for freight and handling charges. The appellant claimed that the amount charged for freight and handling charges incurred by it in transporting the goods from the breweries and distilleries to the warehouse at Ernakulam had to be deducted under rule 9(f) of the Kerala General Sales Tax Rules, 1963, in determining its taxable turnover. 16. This Court held that all the expenditure incurred by the appellant towards freight and handling charges was incurred prior to the sale and was a component of the price for which the goods were sold and the appellant was not entitled to the deduction claimed. 17. Hindustan Sugar Mills Ltd. vs. State of Rajasthan & Ors. 1979(Vol.43) STC 13: This case relates to pre-sale charges. The question that arose in the assessment of the assessee to sales tax under the Rajasthan Sales Tax Act, 1954, and the Central Sales Tax Act, 1956, was whether the amount of freight deducted from the free on rail destination railway station price in the invoices made out by the assessee and paid by the purchasers formed part of the sale price within the meaning of the definition of that term in section 2(p) of the Rajasthan Act and section 2(h) of the Central Act. The sales tax authorities and the High Court took the view that the amount of freight formed part of the sale price and was, therefore, liable to be included in the turnover of the assessee for the purpose of assessment of sale tax. On appeal to this Court, this Court held as under: That the scheme of the Control Order was that the freight was payable by the producer and he recovered it from the purchaser as part of the f.o.r. destination railway station price. The provision in the contract that the delivery to the purchaser was complete as soon as the goods were put on rail and payment of the freight was the responsibility of the purchaser was wholly inconsistent with the scheme of the Control Order and must be held to be excluded by it. The Control Order was paramount, it had overriding effect and if it stipulated that the freight was payable by the producer, such stipulation must prevail, notwithstanding any term or condition of the contract to the contrary. Therefore, by reason of the provisions of the Control Order, which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed part of the sale price within the meaning of the first part of the definition of that term in section 2(p) of the Rajasthan Act and section 2(h) of the Central Act and was includible in the turnover of the assessee. Under the first part of the definition of sale price in section 2 (p) of the Rajasthan Act, the expression meant the amount payable to a dealer as consideration for the sale of any goods and, therefore, the concept of real price or actual price retainable by the dealer is irrelevant. The test is, what is the consideration passing from the purchaser to the dealer for the sale of the goods. It is immaterial to enquire as to how the amount of consideration is made up, whether it includes excise duty or sales tax or freight. The only relevant question to be considered is as to what is the amount payable by the purchaser to the dealer as consideration for sale and not as to what is the net consideration retainable by the dealer. 18. The decision of the Rajasthan High Court was affirmed by this Court. In a recent decision in the case of Greaves Chitram Limited vs. State of Tamil Nadu, 2003(133) STC, the Madras High Court held that freight is includible if the contract is for delivery at buyers place. In the above judgment, the Madras High Court held that: Though no written contract or agreement between the parties was available, from the purchase orders and invoices, a clue could be obtained to determine the nature and character of the transaction entered into between parties. These documents reveal that the dealer agreed to effect the delivery of the goods at the place of the buyer. What was further agreed to by the dealer was that freight charges would be pre-paid by it. If the contract was one for delivery at the destination railway station, risk continues to be that of the seller-dealer and consequently the freight charges paid are includible in the sale price exigible to tax. If the contract is one in which delivery to the purchaser would be complete as soon as the goods are put on rail at the place of despatch, the risk is that of the purchaser and the freight charges incurred are not includible in the sale price exigible to tax. Of course, this is not the invariable rule in all eventualities and circumstances, e.g. goods covered by the control orders like Cement Control Order. The dealer agreed to effect delivery at the place of the buyer and that apart, it had also paid the transport charges besides including the same in the invoice. Therefore the transport charges are includible in sale price. 19. In Ram Oxygen (P) Ltd. vs. Joint Commissioner (CT). 2004 (Vol.134) STC 240, the Tamil Nadu Taxation Special Tribunal took the similar view and held that freight is includible in turn over.
### Response:
1
### Explanation:
12. The finding of the Tribunal and the High Court that the transport and commission were charges incurred subsequent to the purchase of the hard wood and such charges do not represent the sale consideration is against the admitted fact on the side of the respondent who have clearly made the statement that the agents were paid a total amount which included the cost of raw material, transportation charges and commission. When the facts are not in dispute, the Tribunal and the High Court have erred in rendering a finding against the revenue18. The decision of the Rajasthan High Court was affirmed by this CourtIn a recent decision in the case of Greaves Chitram Limited vs. State of Tamil Nadu, 2003(133) STC, the Madras High Court held that freight is includible if the contract is for delivery at buyers place. In the above judgment, the Madras High Court held that:Though no written contract or agreement between the parties was available, from the purchase orders and invoices, a clue could be obtained to determine the nature and character of the transaction entered into between parties. These documents reveal that the dealer agreed to effect the delivery of the goods at the place of the buyer. What was further agreed to by the dealer was that freight charges would be pre-paid by it. If the contract was one for delivery at the destination railway station, risk continues to be that of the seller-dealer and consequently the freight charges paid are includible in the sale price exigible to tax. If the contract is one in which delivery to the purchaser would be complete as soon as the goods are put on rail at the place of despatch, the risk is that of the purchaser and the freight charges incurred are not includible in the sale price exigible to tax. Of course, this is not the invariable rule in all eventualities and circumstances, e.g. goods covered by the control orders like Cement Control Order. The dealer agreed to effect delivery at the place of the buyer and that apart, it had also paid the transport charges besides including the same in the invoice. Therefore the transport charges are includible in sale price19. In Ram Oxygen (P) Ltd. vs. Joint Commissioner (CT). 2004 (Vol.134) STC 240, the Tamil Nadu Taxation Special Tribunal took the similar view and held that freight is includible in turn over.
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Bibi Saddiqa Fatima Vs. Saiyed Mohammad Mahmood Hasan | acid tests, uniformally applicable inall situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicate, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after t he purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.The above indicate are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source whence the purchase, money came, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another."40. Apart from the fact that in the present appeal we are not concerned with a simple case of purchase of the property by the husband in the name of the wife with his own money, the purchase being with the waqf money, even applying the principles extracted above it would be noticed that the concurrent findings of the courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ]lie burden has been strictly discharged by the respondent so much so that the finding as recorded could not be assailed. It was merely attempted to be availed of to support a new case in this Court. It should be remembered that by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another-namely the source whence the purchase money came has been established beyond doubt. The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including tile respondent. The motive to, acquire the property in the name of the wife is clearly spoken of by D.W.I. brother of the Raja when he said at page 37 of the pa per book "Raja Sahib was also present at the time of the execution of the lease. At that time there was no debt against him. On being asked by me he said that the plaintiff used to, trouble him and that in order to please her he was getting a fictitious lease executed in her favour." It was argued for the appellant that the Raja wanted to make a provision for his young wife to protect her interests from being trampled with by her sons and daughters. This is not correct. Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded in the plaint she was pulling on well with the defendant upto the year 1950 and the relations between them got strained when her daughter was married to Saiyed Mohammed Raja Ali Khan. The position of the parties, namely, the Raja and the plaintiff, was such that one could be inclined to believe that in all probability the Raja could provide funds for acquisition of the property not only in the name of his wife but for her and her alone provided the funds expended were his personal funds. But no such inference is possible on the unmistakable position of this case that the funds came from the coffer of the waqf estate. The custody of the title-deed and other papers, except a few, were not with the plaintiff. But on the facts of this case one, cannot attach much importance to this circumstance either way. The conduct of the parties concerned in dealing with the property after acquisition also goes in favour the defendant and against the plaintiff. It could not be shown that the plaintiff bad realised rent from the other tenants who had been there in the Kothi before 1947. Nor was there anything to show that the defendant himself was inducted as a tenant in the Kothi by the plaintiff. We, therefore, hold that even on the application of the salutary principles of law enunciated in Jaydyal Poddars case the appellant cannot succeed. This case was merely followed in Krishnanands case by Bhagwati J.We may again emphasize that in a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired. The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf Is it possible to decree her appeal in face of her three varying stands in the three courts ? They are (1) in the Trial Court-case of acquisition of property with her personal money; (2) in the High Court-acquisition of property with the personal money of her husband and (3) in this Court-the waqf fund invested from time to time became her personal money and enabled her to acquire the property.41. | 0[ds]In the instant case, there is no question of giving any alternative relief to the plaintiff. The relief asked for is one and the same. The plaintiff claimed that she had acquired the property with her personal funds. The defendant successfully combated this case. He had not said anything on the basis of which any alternative relief could be given to the plaintiff. The facts of the case of Nagubai Ammal (supra) would clearly show that the decision of this Court does not help the appellant at all. The respondent did not specifically raise the question of his pending in his pleading nor was an issue framed or. the point, but he raised the question at the very commencement of the trial in his deposition, proved relevant documents which were admitted into evidence without any objection from the appellants who filed their own documents, cross-examined the respondent and invited the Court to hold that the suit for maintenance and a charge and the connected proceedings evidenced by these documents were collusive in order to avoid the operation of s. 52 of the Transfer of Property Act. The matter was decided with reference to s. 52. In such a situation it was held by this Court that the decisions of the Courts below were correct and in the facts and circumstances of the case the omission of the respondent to specifically raise the question of his pending in his pleading did not take the appellants by surprise. It was a mere irregularity which resulted in no prejudice to the appellants. In the instant case no body at any stage of the litigation before the appeal came up to this Court had taken any stand or said a word any where that money spent in acquisition of the property was the personal money of the plaintiff because as and when the sums were spent they went on becoming her personal money. The evidence adduced and the stand taken in arguments were wholly different. No party had said anything on the lines of the case made out in this Court. Similar is the position in regard to the decision of this Court in the case of Kunju Kesavan. At page 648 Hidayatullah J., as he then was, hasparties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate thewas further added that the plea was hardly necessary in view of the plea made by the plaintiff in the replication. Mr. Lal Narayan Sinha placed reliance upon the decision of this Court in Meenakshi Mills, Madurai v. The Commissioner of Income-tax, Madras([1956] S.C.R. 691.) in support o f his submission that the question of benami is essentially a question of fact and this Court would not ordinarily and generally review the concurrent findings of the courts below in that regard. Mr. Phadke submitted that his case was covered by some exceptions carved out in the decision of the Federal Court in Gangadara Ayyarand others v. Subramania Sastrjgal and others.(A.T.R. 1949 F.C.our opinion it is not necessary to decide as to on which side of the dividing line this case falls in the light of the principles enunciated, in the case aforementioned. Truly speaking, the concurrent findings of the Courts below on the, primary facts could not be seriously challenged. They are obviously correct. But a new stand was taken on the basis of clause 18 of the waqf deed which we have already discussed and rejected.Phadke, heavily relied upon clause 19 of the Win dated 17-6-1938-Ext. 15 executed by the Raja fixing various amounts of stipends to be paid to the beneficiaries after his death. He had executed two other wills prior to this Will. In an earlier litigation, a question had arisen as to which Will would prevail-the first one or the last one. The amounts fixed for the plaintiff in the last Will was much higher than the amount fixed for her in the first Will. in an earlier judgment dated 3-9-1949-Ext. 3 which was a judgment inter-partes it was held that the amount fixed in the first Will would prevail. Clause 18 of the waqf deed was also interpreted in a particular manner. Mr. Lal Narayan Sinha endeavoured to use this judgment operating as res judicata in regard to some of the questions falling for decision in this litigation . We do not propose to make use of that judgment in that form. Nor do we propose to express any final opinion as to which amount of stipend was effective-the first one or the last one. We. shall assume in favour of the plaintiff that the. amount fixed by the last Will was effective and binding on the subsequent Mutawalli. We are, however, concerned to read clause 19 of the last Will which runs aswife Siddique Fatima has got a kothi known a s (main (?) Shagird Pasha in mauza Doodhpur (paper torn) by taking on perpetual lease. I or the state has no concern with the same. It has been constructed by her with her own funds. All t he articles lying there belong to her and have been purchased by her from her own money. I have certainly given some articles to her which belonged to me personally. In short all the articles, of whatever sort they may be are her property and nobody has got any right in respect thereof because the state or any one else has got no concern or right in respect thereof. Hence she(?) has got the right to dispose the same off or to make a waqf of the same. She may give it to any of my sons, who renders obedience and service to her or may give the same to any of my grandsons. My other heirs shall have no right in respect thereof. If any body brings, any claim, in order to harass her, the same shall beus see whether this clause advances the case of the appellant any further. On a close scrutiny, it would be found that it directly demolishes her stand taken in this Court. The recital by the Raja in clause 19 is that his wife bad taken the perpetual lease and constructed the kothi with her own funds. All the articles lying there have been purchased by her from her own money. He had certainly given some articles to her which belonged to him personally. There is no recital that the Raja had constructed the kothi , for the plaintiff out of his own funds nor was there a recital that he had constructed the kothi by taking the money from the waqf estate and treating it as payment of stipends to her as and when the sums of money were paid. By no stretch of law such a recital could create a title in favour of the plaintiff and finish the right of the, waqf to the property. The recital was demonstrably false and could not bind the subsequent Mutawalli. If the property became the acquired property of the waqf a Mutawalli, as the Raja was, by his mere declaration contained in clause 19 of the Will could not make it a property of the lady. The recital of fact could be pressed into service only to lend additional support to the plaintiffs case if she would have stuck to that case and proved it by evidence aliunde.The appellants counsel relied upon the various circumstances to, advance her case in this Court-the foremost of them is based upon clause 18 of the waqf deed, which we have already dealt with. It was next contended that the real question was that the property was of waqf- alal-aulad of which the main object was the maintenance and support of the members of the settlers family and to tie up the corpus of the property in perpetuity so as to, make it inalienable. The Raja, however, according to the submission was left free during his life time to make disbursement of the income in any manner he chose and liked. Acquiring a property with the waqf fund was the fulfillment of the object of the wakf. It was a part of making a provision for the maintenance and support of the wife of the Mutawallii. It was an integral part of the object of the waqf and was not in breach of the trust. We are not impressed with this argument and have already dealt with it in the earlier portion of this judgment. True it is that the property was not acquired by the sale of the corpus of any of the waqf property but even acquisition of an immovable property directly with the, waqf fund was an accretion to the waqf property. The Raja had no power while administering the waqf to acquire a property for a particular beneficiary by way of maintenance and support of such a beneficiary. As indicated earlier, a Mutawalli of a waqt although not a trustee in the true sense of the terms is still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his close relations by virtue of the position held by him. The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name of his wife would amount to a breach of trust an d the property so acquired would be treated as waqf property. In the tenth edition of The Law of Trusts by Keaton and Sheridan it has been pointed out at page 329, Chapter XX"The general rule that a trustee must not take. heed of one beneficiary to the detriment of others has already been discussed. Put in another way, the rule implies that although a trustee, may be the servant of all the beneficiaries, he is not the servant of any one of them, but an arbitrator, who must hold the scalesposition of the Mutawalli under the. Mahomedan law is in no way different and all the beneficiaries are entitled to benefit equally, of course, subject to the special power conferred on the Mutawalli as the one provided in clause 18 of the waqf deed and to the extent and in the manner interpreted by us above. Exhibit A-22-an account of daily expenses incurred in the construction of the Kothi was attacked as a spurious document. we do not attach much importance to Ext. A-22 in face of the other pieces of evidence to indicate that the expenses were all met from the waqf fund. I t is not necessary to lay any stress on Ext. A-22 Our attention was drawn to some statements made in the testimony of the defendant himself who was examined as D.W. 2 and D.W. 1the brother of the Raja. It may be mentioned here that Hamid Hasan-brother of the defendant was examined at P.W.3. The plaintiff had examined herself in the house in which P.W. 3 was living and in his presence. Without discussing in any detail a few lines here for a few lines there in their evidence, suffice it to say that their evidence could not and did not establish the plaintiffs case as made out in the Courts below nor did they lend any support to the new case made out here. We, therefore, do not think it necessary to encumber this judgment by a detailed discussion of the evidence, because it has all been dealt with in full by the Trial Court and to a large extent by the High Courtnow proceed to consider, the law of benami prevalent in India and especially in regard to acquisition of a property by the husband in the name of the wife. We would also in this connection be discussing whether the, doctrine of advancement is applicable in India or any principle analogous to that can be pressed into service on be half of the appellant as was sought to be done by her learned counsel. Alongwith the discussion of the points aforesaid, we shall be adverting to the appellants argument of burden of proof being on the person to prove that a transaction which is apparent on the face of the document of title is not a real one but a benami deal. In conclusion, we shall show that neither the Trial Court nor the High Court has deviated from the application of the well-settled principles in this regard, although at places the Trial Court seems to have apparently thrown the onus on the plaintiff. But as a matter of fact neither of the two Courts below has committed any error in the application (, it the real principle.In Gopeekrist Gosain and Gungaparsaud Gosain (6 Moores Indian Appeals, - 53..) it was pointed out as early as 1854, at pageis very much the habit in India to make purchases in the names of others, and, from whatever cause or causes the practice may have arisen, it has existed for a series of years, and these transactions are known as "BenameeJustice Knight Bruce proceeds to observe further at Pages 7475 that if the money for acquisition of property has been provided by a person other than the individual in whose name the purchase was effected and if such a person was a stranger or a distant relative of the person providing the money, , "he would have. been prima facia a trustee". It was observed further that even when the purchaser was the son of the real purchaser the English doctrine of advancement was not applicable in India. This case was followed by the Board in Bilas Kunwar and Desraj Ranjit Singh and others(42 Indian Appeals, 202.) Sir George Farwell has said at pageexception in our law by way of advancement in favour of wife or child does not apply in India: Gopeekrist v. Gangaparsaud; (1854) 6 Moo, Ind. Ap. 53 but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not. The general rule in India in the absence of all other relevant circumstances is thus stated by Lord Campbell inDhurm Das Pandey v. Mussumat Shama Soondari Dibiah- (1843) 3 Moo. Ind. Ap.229; "The criterion in these cases in India is to consider from what source the money comes with which the purchase money isAtkinson reiterated the same view in Kerwick and Kerwick (47 Indian Appeals, 275.) at page 278 in these terms: "In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England."It will be useful to quote a few lines from the judgment of the Judicial Committee of the Privy Council delivered by Sir John Edge in the case of SuraLakshmiah Chetty and others v. Kothandarama Pillai (52 Indian Appeals, 286.)The lines occurring at page 289 runcan be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife. The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply inthe well-known treatise of the law of Trusts referred to above the learned authors say at pagebest example of a trust implied by law is where property is purchased by A in the name of B; that is to say, A supplies the purchase- money, and B takes the conveyance. Here, in the absence of any explanatory facts, such as an intention to give the property to B, equity presumes that A intended B to hold the property in trust for him.may here be made clear that much could be said in favour of the appellant if the Raja would have acquired the property with his own money intending to acquire it for her. But such an intention was of no avail to the appellant when the money for the acquisition of the property came from the coffers of the waqf estate over which the Raja had no unbridled or uncontrolled power of ownership. He was himself in the position of a trustee owing a duty and obligations to the beneficiaries. He had no free volition in the matter to spend and invest the trust fund in any manner he liked and for showing undue advantage to his wife.At one stage of the argument Mr. Phadke felt persuaded to place reliance upon the decision of Yorke and Agarwal JJ in Mt. Sardar Jahan and others v. Mt. Afzal Begam (A.I.R. 1941, oudh, 288.). At page 291, column 1 the observation seems to have been made per in curium to theregards this question of pleading, it does not appear to us that there was anything to prevent the plaintiff from falling back on the plea of advancement in case she was unable to satisfy the court that the moneys expended were herJ realised the inaccuracy of the above proposition and said so in Mt. Siddique Begam v. Abdul Jabber Khan and others(A.I.R. 1942, Allahabad, 308.) and then concluded at page 312 column 1n point of fact it has been laid down by their Lordships in earlier cases that the burden of proof that a transfer is benami does lie in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided bythe case of Gangadara Ayyar and others (supra) Mahajan J., enunciated the law pithily, if we may say so with respect, in paragraph 14 at pageis settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts."While dealing with the question of burden of proof, one must remember a very salutary principle reiterate d by this Court in Kalwa Davadattam and two others v. The Union of India and other([1964] 3 S.C.R. 191.) at page 205. Says the learnedquestion of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by thewould thus be seen that indisputably in that case the property was of the wife. The only dispute was whether the property itself was acquired as a gift from her husband or it was acquired with the money gifted to her by the husband. In our opinion, therefore, this case is of no help, to the appellant in this appeal. In Jaydayal Poddars case (supra) one of us (Sarkaria J.) while delivering the judgment on behalf of the Court w as dealing with a case where the question was whether the property purchased by Abdul Karim in the name of his wife Mst. Hakimunnissa was a benami purchase in the name of the latter. The Trial Court held that she was benamidar. The High Court reversed the decision and held that the plaintiffs had failed to show that Mst. Hakimunnissa in whose name the sale-deed stood, was only a benamida r and not the real purchaser. While affirming the view of the High Court, it was aptly said at pagesis well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent estate of affairs is the real state of affairs. Though the question, whether a particular sale is Benami ornot, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformally applicable inall situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicate, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after t he purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.The above indicate are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source whence the purchase, money came, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit offrom the fact that in the present appeal we are not concerned with a simple case of purchase of the property by the husband in the name of the wife with his own money, the purchase being with the waqf money, even applying the principles extracted above it would be noticed that the concurrent findings of the courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ]lie burden has been strictly discharged by the respondent so much so that the finding as recorded could not be assailed. It was merely attempted to be availed of to support a new case in this Court. It should be remembered that by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another-namely the source whence the purchase money came has been established beyond doubt. The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including tile respondent. The motive to, acquire the property in the name of the wife is clearly spoken of by D.W.I. brother of the Raja when he said at page 37 of the pa per book "Raja Sahib was also present at the time of the execution of the lease. At that time there was no debt against him. On being asked by me he said that the plaintiff used to, trouble him and that in order to please her he was getting a fictitious lease executed in her favour." It was argued for the appellant that the Raja wanted to make a provision for his young wife to protect her interests from being trampled with by her sons and daughters. This is not correct. Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded in the plaint she was pulling on well with the defendant upto the year 1950 and the relations between them got strained when her daughter was married to Saiyed Mohammed Raja Ali Khan. The position of the parties, namely, the Raja and the plaintiff, was such that one could be inclined to believe that in all probability the Raja could provide funds for acquisition of the property not only in the name of his wife but for her and her alone provided the funds expended were his personal funds. But no such inference is possible on the unmistakable position of this case that the funds came from the coffer of the waqf estate. The custody of the title-deed and other papers, except a few, were not with the plaintiff. But on the facts of this case one, cannot attach much importance to this circumstance either way. The conduct of the parties concerned in dealing with the property after acquisition also goes in favour the defendant and against the plaintiff. It could not be shown that the plaintiff bad realised rent from the other tenants who had been there in the Kothi before 1947. Nor was there anything to show that the defendant himself was inducted as a tenant in the Kothi by the plaintiff. We, therefore, hold that even on the application of the salutary principles of law enunciated in Jaydyal Poddars case the appellant cannot succeed. This case was merely followed in Krishnanands case by Bhagwati J.We may again emphasize that in a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired. The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf Is it possible to decree her appeal in face of her three varying stands in the three courts ? They are (1) in the Trial Court-case of acquisition of property with her personal money; (2) in the High Court-acquisition of property with the personal money of her husband and (3) in this Court-the waqf fund invested from time to time became her personal money and enabled her to acquire the property. | 0 | 13,796 | 5,026 | ### Instruction:
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acid tests, uniformally applicable inall situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicate, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after t he purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.The above indicate are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source whence the purchase, money came, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another."40. Apart from the fact that in the present appeal we are not concerned with a simple case of purchase of the property by the husband in the name of the wife with his own money, the purchase being with the waqf money, even applying the principles extracted above it would be noticed that the concurrent findings of the courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ]lie burden has been strictly discharged by the respondent so much so that the finding as recorded could not be assailed. It was merely attempted to be availed of to support a new case in this Court. It should be remembered that by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another-namely the source whence the purchase money came has been established beyond doubt. The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including tile respondent. The motive to, acquire the property in the name of the wife is clearly spoken of by D.W.I. brother of the Raja when he said at page 37 of the pa per book "Raja Sahib was also present at the time of the execution of the lease. At that time there was no debt against him. On being asked by me he said that the plaintiff used to, trouble him and that in order to please her he was getting a fictitious lease executed in her favour." It was argued for the appellant that the Raja wanted to make a provision for his young wife to protect her interests from being trampled with by her sons and daughters. This is not correct. Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded in the plaint she was pulling on well with the defendant upto the year 1950 and the relations between them got strained when her daughter was married to Saiyed Mohammed Raja Ali Khan. The position of the parties, namely, the Raja and the plaintiff, was such that one could be inclined to believe that in all probability the Raja could provide funds for acquisition of the property not only in the name of his wife but for her and her alone provided the funds expended were his personal funds. But no such inference is possible on the unmistakable position of this case that the funds came from the coffer of the waqf estate. The custody of the title-deed and other papers, except a few, were not with the plaintiff. But on the facts of this case one, cannot attach much importance to this circumstance either way. The conduct of the parties concerned in dealing with the property after acquisition also goes in favour the defendant and against the plaintiff. It could not be shown that the plaintiff bad realised rent from the other tenants who had been there in the Kothi before 1947. Nor was there anything to show that the defendant himself was inducted as a tenant in the Kothi by the plaintiff. We, therefore, hold that even on the application of the salutary principles of law enunciated in Jaydyal Poddars case the appellant cannot succeed. This case was merely followed in Krishnanands case by Bhagwati J.We may again emphasize that in a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired. The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf Is it possible to decree her appeal in face of her three varying stands in the three courts ? They are (1) in the Trial Court-case of acquisition of property with her personal money; (2) in the High Court-acquisition of property with the personal money of her husband and (3) in this Court-the waqf fund invested from time to time became her personal money and enabled her to acquire the property.41.
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absolute formulae or acid tests, uniformally applicable inall situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicate, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after t he purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.The above indicate are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source whence the purchase, money came, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit offrom the fact that in the present appeal we are not concerned with a simple case of purchase of the property by the husband in the name of the wife with his own money, the purchase being with the waqf money, even applying the principles extracted above it would be noticed that the concurrent findings of the courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ]lie burden has been strictly discharged by the respondent so much so that the finding as recorded could not be assailed. It was merely attempted to be availed of to support a new case in this Court. It should be remembered that by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another-namely the source whence the purchase money came has been established beyond doubt. The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including tile respondent. The motive to, acquire the property in the name of the wife is clearly spoken of by D.W.I. brother of the Raja when he said at page 37 of the pa per book "Raja Sahib was also present at the time of the execution of the lease. At that time there was no debt against him. On being asked by me he said that the plaintiff used to, trouble him and that in order to please her he was getting a fictitious lease executed in her favour." It was argued for the appellant that the Raja wanted to make a provision for his young wife to protect her interests from being trampled with by her sons and daughters. This is not correct. Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded in the plaint she was pulling on well with the defendant upto the year 1950 and the relations between them got strained when her daughter was married to Saiyed Mohammed Raja Ali Khan. The position of the parties, namely, the Raja and the plaintiff, was such that one could be inclined to believe that in all probability the Raja could provide funds for acquisition of the property not only in the name of his wife but for her and her alone provided the funds expended were his personal funds. But no such inference is possible on the unmistakable position of this case that the funds came from the coffer of the waqf estate. The custody of the title-deed and other papers, except a few, were not with the plaintiff. But on the facts of this case one, cannot attach much importance to this circumstance either way. The conduct of the parties concerned in dealing with the property after acquisition also goes in favour the defendant and against the plaintiff. It could not be shown that the plaintiff bad realised rent from the other tenants who had been there in the Kothi before 1947. Nor was there anything to show that the defendant himself was inducted as a tenant in the Kothi by the plaintiff. We, therefore, hold that even on the application of the salutary principles of law enunciated in Jaydyal Poddars case the appellant cannot succeed. This case was merely followed in Krishnanands case by Bhagwati J.We may again emphasize that in a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired. The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf Is it possible to decree her appeal in face of her three varying stands in the three courts ? They are (1) in the Trial Court-case of acquisition of property with her personal money; (2) in the High Court-acquisition of property with the personal money of her husband and (3) in this Court-the waqf fund invested from time to time became her personal money and enabled her to acquire the property.
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Zodiac Clothing Co. Ltd Vs. Apparel Export Promotion Council & Others | exports not less than 90% of the export entitlement shall be released in full. The DG, AEPC shall forfeit the EMD/BG in case of utilization is upto 75% in case of fast moving items and upto 50% in case of slow moving items, proportionate to the short fall in utilization. If utilization of export entitlement allocation is, less than the above percentages EMD/BG shall be forfeited in full. For this purpose utilization shall be computed on individual entitlements or on the basis of each system separately." 6. For the year 2002, the appellant was allotted quotas for export under the said policy in First Come First Serve category, against depositing the requisite bank guarantee as per the terms of the policy.7. A show cause notice was issued by the respondent-Apparel Export Promotion Council (for short "the AEPC") alleging under-utilization of quota by the appellant, and alleging that only 87.5% quota was used, and thereby proposed to forfeit the bank guarantee for the same.8. After the appellant replied, AEPC passed an order dated 18.08.2003 directing forfeiture of the sum of Rs. 8,79,867/-. In the First Appeal that was filed, the First Appellate Committee, on 31.03.2004, revised and scaled down the forfeiture amount from Rs. 8,79,867/- to Rs. 5,39,919/- i.e. the appellants performance being revised to 88.91%, by giving relief against 3 quota certificates. However, given the figure of 88.91%, the First Appeal was dismissed.9. On 18.06.2004, a Second Appeal was disposed of with directions to the AEPC to reconsider the matter. The AEPC, thereafter, invoked the bank guarantee that was submitted of Rs. 8,00,000/-, which was far in excess of the determined penalty. 10. Against this, the appellant filed a Writ Petition (C) No. 14467 of 2005 before the Delhi High Court. The Delhi High Court, by its order dated 20.01.2009, quashed the order that was passed and was pleased to remand the matter for fresh consideration. 11. A personal hearing was given to the appellants representative sometime in the year 2009, who submitted that in point of fact, the fault was not with the appellant but that no quota was at all allotted to the Company against Q.C. No. 653919, and if this particular Q.C. was to be taken out of consideration, then the overall utilization would exceed 90%, in which case no forfeiture could be levied. 12. The AEPC, on remand, by an order dated 11.09.2012, stated that as against the Q.C. No. 653919 a rectifiable discrepancy, which could be rectified within 15 days, was not, in fact, rectified and, therefore, determined the forfeiture amount at Rs. 4,24,415/-. 13. Being aggrieved by this, the appellant knocked at the doors of the Textile Commissioner, who, in First Appeal asked the appellant to submit documentary proof that the quota certificate was not, in fact, allotted to it. The appellant then submitted a copy of the said quota certificate to the Committee which bore the mark "rejected". However, the appellant was again turned down on the ground that there was a rectifiable defect, and then the penalty amount was scaled down from Rs. 4,24,415/- to L3,63,087/-. 14. The First Appellate Committee, by its order dated 13.06.2013, rejected the appeal, again reiterating the same amount as penalty. A Second Appeal was thereafter filed by the appellant, in which the Second Appellate Committee, by its order dated 22.07.2015, for the first time, stated that the rectifiable defect was, in fact, the fact that an authenticated L/C was not produced within either the stipulated period or the extended period of 15 days. What was added in this order was that such discrepancy was placed on the Notice Board for information of the trade. Therefore, the Second Appeal was also rejected.15. In a Writ Petition against this order, the Delhi High Court dismissed the same, by the impugned judgment dated 21.09.2015, stating that since a pure question of fact has been raised, and the matter has gone up and down twice, and that, since the appellant has been heard throughout there was no reason to interfere.16. Learned counsel appearing on behalf of the appellant has argued before us that it was pointed out to the High Court that, according to the appellant, no such notice was ever put on the Notice Board, and that this plea has never, in fact, been taken by the respondent(s) at any point of time. The Second Appellate Committee, somehow or the other, while dismissing the Second Appeal of the appellant, came out with this for the very first time. We put it to learned counsel for the respondent(s) that, at any point of time, had the appellant ever been told except at the Second Appellate Committees stage as to what this "rectifiable discrepancy" was. Secondly, we also put it to learned counsel for the respondent(s) that the appellants specific case is that nothing was put up on the Notice Board and that the Second Appellate Committees finding that this particular Q.C. was put up on the Notice Board is completely perverse, and was not the case of the respondent(s) at all. To this, the respondents counsel has no real answer.17. We are, therefore, of the view that, despite the several rounds of litigation between the parties, the respondent(s) never ever informed the appellant about the ground for rejection of the Q.C. until the Second Appellate Committee stage when it was informed about one particular ground. As has been mentioned herein above, the fact that in accordance with the policy this Q.C. was put up on the Notice Board was never the case of the respondent(s) before the Second Appellate Committee and remains a fact which is completely unauthenticated.18. In this view of the matter, we feel that the appellant has not been fairly dealt with. Also the appellants case, that it was never informed about the unauthenticated letter of credit throughout the proceedings right till the Second Appellate Committee stage, and that the Q.C. in question was never in fact put up on the Notice Board, appears to be correct. | 1[ds]17. We are, therefore, of the view that, despite the several rounds of litigation between the parties, the respondent(s) never ever informed the appellant about the ground for rejection of the Q.C. until the Second Appellate Committee stage when it was informed about one particular ground. As has been mentioned herein above, the fact that in accordance with the policy this Q.C. was put up on the Notice Board was never the case of the respondent(s) before the Second Appellate Committee and remains a fact which is completely unauthenticated.18. In this view of the matter, we feel that the appellant has not been fairly dealt with. Also the appellants case, that it was never informed about the unauthenticated letter of credit throughout the proceedings right till the Second Appellate Committee stage, and that the Q.C. in question was never in fact put up on the Notice Board, appears to be correct. | 1 | 1,370 | 178 | ### 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:
exports not less than 90% of the export entitlement shall be released in full. The DG, AEPC shall forfeit the EMD/BG in case of utilization is upto 75% in case of fast moving items and upto 50% in case of slow moving items, proportionate to the short fall in utilization. If utilization of export entitlement allocation is, less than the above percentages EMD/BG shall be forfeited in full. For this purpose utilization shall be computed on individual entitlements or on the basis of each system separately." 6. For the year 2002, the appellant was allotted quotas for export under the said policy in First Come First Serve category, against depositing the requisite bank guarantee as per the terms of the policy.7. A show cause notice was issued by the respondent-Apparel Export Promotion Council (for short "the AEPC") alleging under-utilization of quota by the appellant, and alleging that only 87.5% quota was used, and thereby proposed to forfeit the bank guarantee for the same.8. After the appellant replied, AEPC passed an order dated 18.08.2003 directing forfeiture of the sum of Rs. 8,79,867/-. In the First Appeal that was filed, the First Appellate Committee, on 31.03.2004, revised and scaled down the forfeiture amount from Rs. 8,79,867/- to Rs. 5,39,919/- i.e. the appellants performance being revised to 88.91%, by giving relief against 3 quota certificates. However, given the figure of 88.91%, the First Appeal was dismissed.9. On 18.06.2004, a Second Appeal was disposed of with directions to the AEPC to reconsider the matter. The AEPC, thereafter, invoked the bank guarantee that was submitted of Rs. 8,00,000/-, which was far in excess of the determined penalty. 10. Against this, the appellant filed a Writ Petition (C) No. 14467 of 2005 before the Delhi High Court. The Delhi High Court, by its order dated 20.01.2009, quashed the order that was passed and was pleased to remand the matter for fresh consideration. 11. A personal hearing was given to the appellants representative sometime in the year 2009, who submitted that in point of fact, the fault was not with the appellant but that no quota was at all allotted to the Company against Q.C. No. 653919, and if this particular Q.C. was to be taken out of consideration, then the overall utilization would exceed 90%, in which case no forfeiture could be levied. 12. The AEPC, on remand, by an order dated 11.09.2012, stated that as against the Q.C. No. 653919 a rectifiable discrepancy, which could be rectified within 15 days, was not, in fact, rectified and, therefore, determined the forfeiture amount at Rs. 4,24,415/-. 13. Being aggrieved by this, the appellant knocked at the doors of the Textile Commissioner, who, in First Appeal asked the appellant to submit documentary proof that the quota certificate was not, in fact, allotted to it. The appellant then submitted a copy of the said quota certificate to the Committee which bore the mark "rejected". However, the appellant was again turned down on the ground that there was a rectifiable defect, and then the penalty amount was scaled down from Rs. 4,24,415/- to L3,63,087/-. 14. The First Appellate Committee, by its order dated 13.06.2013, rejected the appeal, again reiterating the same amount as penalty. A Second Appeal was thereafter filed by the appellant, in which the Second Appellate Committee, by its order dated 22.07.2015, for the first time, stated that the rectifiable defect was, in fact, the fact that an authenticated L/C was not produced within either the stipulated period or the extended period of 15 days. What was added in this order was that such discrepancy was placed on the Notice Board for information of the trade. Therefore, the Second Appeal was also rejected.15. In a Writ Petition against this order, the Delhi High Court dismissed the same, by the impugned judgment dated 21.09.2015, stating that since a pure question of fact has been raised, and the matter has gone up and down twice, and that, since the appellant has been heard throughout there was no reason to interfere.16. Learned counsel appearing on behalf of the appellant has argued before us that it was pointed out to the High Court that, according to the appellant, no such notice was ever put on the Notice Board, and that this plea has never, in fact, been taken by the respondent(s) at any point of time. The Second Appellate Committee, somehow or the other, while dismissing the Second Appeal of the appellant, came out with this for the very first time. We put it to learned counsel for the respondent(s) that, at any point of time, had the appellant ever been told except at the Second Appellate Committees stage as to what this "rectifiable discrepancy" was. Secondly, we also put it to learned counsel for the respondent(s) that the appellants specific case is that nothing was put up on the Notice Board and that the Second Appellate Committees finding that this particular Q.C. was put up on the Notice Board is completely perverse, and was not the case of the respondent(s) at all. To this, the respondents counsel has no real answer.17. We are, therefore, of the view that, despite the several rounds of litigation between the parties, the respondent(s) never ever informed the appellant about the ground for rejection of the Q.C. until the Second Appellate Committee stage when it was informed about one particular ground. As has been mentioned herein above, the fact that in accordance with the policy this Q.C. was put up on the Notice Board was never the case of the respondent(s) before the Second Appellate Committee and remains a fact which is completely unauthenticated.18. In this view of the matter, we feel that the appellant has not been fairly dealt with. Also the appellants case, that it was never informed about the unauthenticated letter of credit throughout the proceedings right till the Second Appellate Committee stage, and that the Q.C. in question was never in fact put up on the Notice Board, appears to be correct.
### Response:
1
### Explanation:
17. We are, therefore, of the view that, despite the several rounds of litigation between the parties, the respondent(s) never ever informed the appellant about the ground for rejection of the Q.C. until the Second Appellate Committee stage when it was informed about one particular ground. As has been mentioned herein above, the fact that in accordance with the policy this Q.C. was put up on the Notice Board was never the case of the respondent(s) before the Second Appellate Committee and remains a fact which is completely unauthenticated.18. In this view of the matter, we feel that the appellant has not been fairly dealt with. Also the appellants case, that it was never informed about the unauthenticated letter of credit throughout the proceedings right till the Second Appellate Committee stage, and that the Q.C. in question was never in fact put up on the Notice Board, appears to be correct.
|
State of Jharkhand & Another Vs. Harihar Yadav & Others | State of Bihar, as it appears, tacitly acceded to the position as a result of which the employees remained at the mercy of JHALCO. At a later stage controversy cropped up, as noticed earlier, due to disagreement and difference between the two States and it was stated that a decision was taken to initiate the liquidation proceedings and the Central Government in exercise of its power under Section 65 of the Act directed the State of Bihar to initiate liquidation proceedings. Government of Jharkhand conceded to the same. Because of the vacillating stand of the State of Jharkhand a distressing and unusual situation has arisen. It is not in dispute that JHALCO absorbed some of the employees but did not take any steps to deal with the other employees on some pretext or the other. There is a cavil over the assets and liabilities. We are neither concerned with the said controversy nor do we intend to express any opinion. 44. The High Court has directed the State of Bihar to pay the salary till 16.6.2011 and has directed JHALCO to absorb the unabsorbed employees. Learned counsel for the State of Jharkhand and JHALCO has painted a picture of frustrated affairs and further advanced the plea that there is no vacancy. As stated earlier, the learned counsel for the respondents-employees has suggested for moulding the relief to give a quietus to the litigation. 45. Having regard to the position that has emerged, we are compelled to dwell upon the role of the State as a model employer. In Som Prakash Rekhi v. Union of India [(1981) 1 SCC 449] , Krishna Iyer, J., has stated thus: - Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt. 46. In Gurmail Singh and others v. State of Punjab and others [(1991) 1 SCC 189] it has been held that the State as a model employer is expected to show fairness in action. 47. In Balram Gupta v. Union of India and Another [1987 (Supp) SC 228], the Court observed that as a model employer the Government must conduct itself with high probity and candour with its employees. 48. In State of Haryana v. Piara Singh [(1992) 4 SCC 118] the Court has ruled that the main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. 49. In Bhupendra Nath Hazarika and another v. State of Assam and others [(2013) 2 SCC 516] , while laying emphasis on the role of the State as a model employer, though in a different context, the Court observed: It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized. 50. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of model employer. It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily happened had there not been bifurcation of the State and what fate of the employees of BHALCO would have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so. 51. Be it noted, a contention was canvassed with immense vehemence by the appellants that the directions may be issued in respect of the respondents-employees who approached the Court. It is not a case where we shall confine the relief to the respondents alone. Earlier this Court had constituted a Committee and the State of Bihar had deposited rupees fifty crores for all the Corporations and the employees working in BHALCO who were not paid salary from 1995 were proportionately paid. Their identities are known. The employees who have died, their legal representatives are easily identifiable. A man in dire need cannot fight a litigation against two experimenting States to get his dues. It is the duty of the constitutional court, as submitted by Ms. Priya Hingorani, that all should be paid their dues as this Court may think fit. 52. | 1[ds]If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of model employer. It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily happened had there not been bifurcation of the State and what fate of the employees of BHALCO would have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so51. Be it noted, a contention was canvassed with immense vehemence by the appellants that the directions may be issued in respect of the respondents-employees who approached the Court. It is not a case where we shall confine the relief to the respondents alone. Earlier this Court had constituted a Committee and the State of Bihar had deposited rupees fifty crores for all the Corporations and the employees working in BHALCO who were not paid salary from 1995 were proportionately paid. Their identities are known. The employees who have died, their legal representatives are easily identifiable. A man in dire need cannot fight a litigation against two experimenting States to get his dues. It is the duty of the constitutional court, as submitted by Ms. Priya Hingorani, that all should be paid their dues as this Court may think fit. | 1 | 10,762 | 427 | ### 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:
State of Bihar, as it appears, tacitly acceded to the position as a result of which the employees remained at the mercy of JHALCO. At a later stage controversy cropped up, as noticed earlier, due to disagreement and difference between the two States and it was stated that a decision was taken to initiate the liquidation proceedings and the Central Government in exercise of its power under Section 65 of the Act directed the State of Bihar to initiate liquidation proceedings. Government of Jharkhand conceded to the same. Because of the vacillating stand of the State of Jharkhand a distressing and unusual situation has arisen. It is not in dispute that JHALCO absorbed some of the employees but did not take any steps to deal with the other employees on some pretext or the other. There is a cavil over the assets and liabilities. We are neither concerned with the said controversy nor do we intend to express any opinion. 44. The High Court has directed the State of Bihar to pay the salary till 16.6.2011 and has directed JHALCO to absorb the unabsorbed employees. Learned counsel for the State of Jharkhand and JHALCO has painted a picture of frustrated affairs and further advanced the plea that there is no vacancy. As stated earlier, the learned counsel for the respondents-employees has suggested for moulding the relief to give a quietus to the litigation. 45. Having regard to the position that has emerged, we are compelled to dwell upon the role of the State as a model employer. In Som Prakash Rekhi v. Union of India [(1981) 1 SCC 449] , Krishna Iyer, J., has stated thus: - Social justice is the conscience of our Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt. 46. In Gurmail Singh and others v. State of Punjab and others [(1991) 1 SCC 189] it has been held that the State as a model employer is expected to show fairness in action. 47. In Balram Gupta v. Union of India and Another [1987 (Supp) SC 228], the Court observed that as a model employer the Government must conduct itself with high probity and candour with its employees. 48. In State of Haryana v. Piara Singh [(1992) 4 SCC 118] the Court has ruled that the main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. 49. In Bhupendra Nath Hazarika and another v. State of Assam and others [(2013) 2 SCC 516] , while laying emphasis on the role of the State as a model employer, though in a different context, the Court observed: It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized. 50. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of model employer. It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily happened had there not been bifurcation of the State and what fate of the employees of BHALCO would have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so. 51. Be it noted, a contention was canvassed with immense vehemence by the appellants that the directions may be issued in respect of the respondents-employees who approached the Court. It is not a case where we shall confine the relief to the respondents alone. Earlier this Court had constituted a Committee and the State of Bihar had deposited rupees fifty crores for all the Corporations and the employees working in BHALCO who were not paid salary from 1995 were proportionately paid. Their identities are known. The employees who have died, their legal representatives are easily identifiable. A man in dire need cannot fight a litigation against two experimenting States to get his dues. It is the duty of the constitutional court, as submitted by Ms. Priya Hingorani, that all should be paid their dues as this Court may think fit. 52.
### Response:
1
### Explanation:
If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the States and the Corporations have conveniently ostracized the concept of model employer. It would not be wrong to say that they have done so with Pacific calmness, sans vision, shorn of responsibility and oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy with cruel impassibility. Neither of the States nor the Corporations have even thought for a moment about the livelihood of the employees. They have remained totally alien to the situation to which the employees have been driven to. In a State of good governance the Government cannot act like an alien. It has an active role to play. It has to have a constructive and progressive vision. What would have ordinarily happened had there not been bifurcation of the State and what fate of the employees of BHALCO would have faced is a different matter altogether. The tragedy has fallen solely because of the bifurcation. True it is, under the law there has been bifurcation and the Central Government has been assigned the role to settle the controversies that had to arise between the two States. But the experimentation that has been done with the employees as if they are guinea pigs is legally not permissible and indubitably absolutely unconscionable. It hurts the soul of the Constitution and no one has the right to do so51. Be it noted, a contention was canvassed with immense vehemence by the appellants that the directions may be issued in respect of the respondents-employees who approached the Court. It is not a case where we shall confine the relief to the respondents alone. Earlier this Court had constituted a Committee and the State of Bihar had deposited rupees fifty crores for all the Corporations and the employees working in BHALCO who were not paid salary from 1995 were proportionately paid. Their identities are known. The employees who have died, their legal representatives are easily identifiable. A man in dire need cannot fight a litigation against two experimenting States to get his dues. It is the duty of the constitutional court, as submitted by Ms. Priya Hingorani, that all should be paid their dues as this Court may think fit.
|
Industrial Infrastructure Development Corporation(Gwalior) M.P. Ltd Vs. Commissioner of Income Tax, Gwalior | Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 14.03.2007 passed by the High Court of Madhya Pradesh at Gwalior in Misc. Appeal(Income Tax) No.6 of 2005 whereby the Division Bench of the High Court allowed the appeal filed by the respondent and set aside the order passed by the ITAT and restored the order of the Commissioner of Income Tax.2. The question involved in the appeal lies in a narrow compass. Few facts, however, need mention to appreciate the same.3. The appellant is a limited company registered under the Companies Act. It is a State Government Undertaking which is established with a view to develop and assist the State in the development of industrial growth centers/areas, to promote, encourage and assist the establishment growth and development of industries in the State of M.P. The appellant is an "assesse" under the Income Tax Act, 1961 (hereinafter referred to as “the Act”).4. On 10.02.1999, the appellant filed an application in the format prescribed under Section 12-A of the Act to the Commissioner of Income Tax (hereinafter referred to as “the CIT”) for grant of registration. According to the appellant, since they were engaged in public utility activity which, according to them, was for a charitable purpose under Section 2(15) of the Act, they were entitled to claim registration as provided under Section 12 (A) of the Act. Since the application for registration was delayed in its filing, the appellant also made an application for condonation of delay in filing the application.5. By order dated 13.04.1999, the CIT (Gwalior) condoned the delay and granted the registration certificate as prayed for by the appellant. In clause 3 of the registration certificate, it was mentioned that the certificate is granted without prejudice to the examination on merits of the claim of exemption after the return is filed.6. On 27.11.2000, the CIT issued a show cause notice to the appellant stating therein as to why the registration certificate granted to the appellant by order dated 10.02.1999 under Section 12A of the Act be not cancelled/withdrawn. The show cause notice also set out the factual grounds for the withdrawal of the registration certificate. The appellant was asked to reply the show cause notice. The appellant accordingly filed their reply and opposed the grounds on which the withdrawal/cancellation of the certificate was proposed.7. By order dated 29.04.2002, the CIT did not find any substance in the stand taken by the appellant in their reply and accordingly cancelled/withdrawn the certificate issued to the appellant.8. The appellant felt aggrieved and filed rectification application under Section 154 of the Act before the CIT on 04.07.2002 contending therein that the order of the CIT dated 29.04.2002 cancelling/withdrawing the registration certificate contains an error apparent and, therefore, it is required to be rectified or/and recalled. It was contended that once the CIT grants the registration certificate under Section 12A, he has no power to cancel/recall the certificate granted to the Assessee.9. On 20.12.2002, the CIT rejected the application filed by the appellant for rectification holding that there was no error in his order cancelling the registration certificate granted to the appellant. In other words, the CIT held that he had the power to cancel the certificate once granted by him and, therefore, the order for cancelling the registration certificate is legal and proper.10. Aggrieved by the said order, the appellant filed an appeal before the Income Tax Appellate Tribunal, Agra Bench. By order dated 26.08.2004, the ITAT allowed the appellants appeal and set aside the order dated 29.04.2002 passed by the CIT by which he had cancelled/withdrawn the registration certificate.11. The Revenue felt aggrieved by the order of the ITAT and filed appeal in the High Court at Gwalior Bench under Section 260-A of the Act. The High Court, by impugned order, allowed the appeal filed by the Revenue and set aside the order passed by the ITAT and restored the order of the CIT.12. The Division Bench of the High Court placed reliance on Section 21 of the General Clauses Act and held that since there is no express power in the Act for cancelling the registration certificate under Section 12A of the Act and hence power to cancel can be traced from Section 21 of the General Clauses Act to support such order. In other words, in the opinion of the High Court, Section 21 is the source of power to pass cancellation of the certification granted by the CIT when there is no express power available under Section 12A of the Act.13. It is against this order, the assessee felt aggrieved and filed this appeal by way of special leave before this Court.14. None appeared for the appellant (assessee). Mr. Radhakrishan, learned Counsel appeared for the respondent (Revenue). | 1[ds]21. In our considered opinion, the CIT had no express power of cancellation of the registration certificate once granted by him to the assessee under Section 12A till 01.10.2004. It is for the reasons that, first, there was no express provision in the Act vesting the CIT with the power to cancel the registration certificate granted under Section 12A of the Act. Second, the order passed under Section 12A by the CIT is a quasi judicial order and being quasi judicial in nature, it could be withdrawn/recalled by the CIT only when there was express power vested in him under the Act to do so. In this case there was no such express power.22. Indeed, the functions exercisable by the CIT under Section 12A are neither legislative and nor executive but as mentioned above they are essentially quasi judicial in nature.23. Third, an order of the CIT passed under Section 12A does not fall in the category of "orders" mentioned in Section 21 of the General Clauses Act. The expression "order" employed in Section 21 would show that such "order" must be in the nature of a "notification", "rules" and "bye laws" etc. ( see – Indian National Congress(I) vs. Institute of Social Welfare & Ors., 2002 (5) SCC 685 ).24. In other words, the order, which can be modified or rescinded by applying Section 21, has to be either executive or legislative in nature whereas the order, which the CIT is required to pass under Section 12A of the Act, is neither legislative nor an executive order but it is a "quasi judicial order". It is for this reason, Section 21 has no application in this case.25. The general power, under Section 21 of the General Clauses Act, to rescind a notification or order has to be understood in the light of the subject matter, context and the effect of the relevant provisions of the statute under which the notification or order is issued and the power is not available after an enforceable right has accrued under the notification or order. Moreover, Section 21 has no application to vary or amend or review a quasi judicial order. A quasi judicial order can be generally varied or reviewed when obtained by fraud or when such power is conferred by the Act or Rules under which it is made. (See Interpretation of Statutes, Ninth Edition by G.P. Singh page 893).It is not in dispute that an express power was conferred on the CIT to cancel the registration for the first time by enacting(3) in Section 12AA only with effect from 01.10.2004 by the Finance (No.2) Act 2004 (23 of 2004) and hence such power could be exercised by the CIT only on and after 01.10.2004, i.e., (assessment yearbecause the amendment in question was not retrospective but was prospective in nature.We are of the considered view that the view taken by the abovementioned three High Courts in the respective cases is in conformity with law and we accordingly approve the said view taken by these High Courts in three aforementioned decisions.The issue involved in this appeal had also come up for consideration before three High Courts, namely, Delhi High Court in the case of Director of Income Tax (Exemptions) vs. Mool Chand Kairati Ram Trust, (2011) 243 CTR(Del) 245 , Uttaranchal High Court in the case of WelhamSchool Society vs. CBDT, (2006) 285 ITR 74(Uttaranchal) and Allahabad High Court in the case of Oxford 14 Academy for Career Development vs. Chief Commissioner of Income Tax & Ors. (2009) 315 ITR 382 (All).29. All the three High Courts after examining the issue, in the light of the object of Section 12A of the Act and Section 21 of the General Clauses Act held that the order of the CIT passed under Section 12A is quasi judicial in nature. Second, there was no express provision in the Act vesting the CIT with power of cancellation of registration till 01.10.2004; and lastly, Section 21of the General Clauses Act has no application to the order passed by the CIT under Section 12A because the order is quasi judicial in nature and it is for all these reasons the CIT had no jurisdiction to cancel the registration certificate once granted by him under Section 12A till the power was expressly conferred on the CIT by Section 12AA(3) of the Act w.e.f. 01.10.2004. | 1 | 883 | 830 | ### 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:
Abhay Manohar Sapre, J.1. This appeal is directed against the final judgment and order dated 14.03.2007 passed by the High Court of Madhya Pradesh at Gwalior in Misc. Appeal(Income Tax) No.6 of 2005 whereby the Division Bench of the High Court allowed the appeal filed by the respondent and set aside the order passed by the ITAT and restored the order of the Commissioner of Income Tax.2. The question involved in the appeal lies in a narrow compass. Few facts, however, need mention to appreciate the same.3. The appellant is a limited company registered under the Companies Act. It is a State Government Undertaking which is established with a view to develop and assist the State in the development of industrial growth centers/areas, to promote, encourage and assist the establishment growth and development of industries in the State of M.P. The appellant is an "assesse" under the Income Tax Act, 1961 (hereinafter referred to as “the Act”).4. On 10.02.1999, the appellant filed an application in the format prescribed under Section 12-A of the Act to the Commissioner of Income Tax (hereinafter referred to as “the CIT”) for grant of registration. According to the appellant, since they were engaged in public utility activity which, according to them, was for a charitable purpose under Section 2(15) of the Act, they were entitled to claim registration as provided under Section 12 (A) of the Act. Since the application for registration was delayed in its filing, the appellant also made an application for condonation of delay in filing the application.5. By order dated 13.04.1999, the CIT (Gwalior) condoned the delay and granted the registration certificate as prayed for by the appellant. In clause 3 of the registration certificate, it was mentioned that the certificate is granted without prejudice to the examination on merits of the claim of exemption after the return is filed.6. On 27.11.2000, the CIT issued a show cause notice to the appellant stating therein as to why the registration certificate granted to the appellant by order dated 10.02.1999 under Section 12A of the Act be not cancelled/withdrawn. The show cause notice also set out the factual grounds for the withdrawal of the registration certificate. The appellant was asked to reply the show cause notice. The appellant accordingly filed their reply and opposed the grounds on which the withdrawal/cancellation of the certificate was proposed.7. By order dated 29.04.2002, the CIT did not find any substance in the stand taken by the appellant in their reply and accordingly cancelled/withdrawn the certificate issued to the appellant.8. The appellant felt aggrieved and filed rectification application under Section 154 of the Act before the CIT on 04.07.2002 contending therein that the order of the CIT dated 29.04.2002 cancelling/withdrawing the registration certificate contains an error apparent and, therefore, it is required to be rectified or/and recalled. It was contended that once the CIT grants the registration certificate under Section 12A, he has no power to cancel/recall the certificate granted to the Assessee.9. On 20.12.2002, the CIT rejected the application filed by the appellant for rectification holding that there was no error in his order cancelling the registration certificate granted to the appellant. In other words, the CIT held that he had the power to cancel the certificate once granted by him and, therefore, the order for cancelling the registration certificate is legal and proper.10. Aggrieved by the said order, the appellant filed an appeal before the Income Tax Appellate Tribunal, Agra Bench. By order dated 26.08.2004, the ITAT allowed the appellants appeal and set aside the order dated 29.04.2002 passed by the CIT by which he had cancelled/withdrawn the registration certificate.11. The Revenue felt aggrieved by the order of the ITAT and filed appeal in the High Court at Gwalior Bench under Section 260-A of the Act. The High Court, by impugned order, allowed the appeal filed by the Revenue and set aside the order passed by the ITAT and restored the order of the CIT.12. The Division Bench of the High Court placed reliance on Section 21 of the General Clauses Act and held that since there is no express power in the Act for cancelling the registration certificate under Section 12A of the Act and hence power to cancel can be traced from Section 21 of the General Clauses Act to support such order. In other words, in the opinion of the High Court, Section 21 is the source of power to pass cancellation of the certification granted by the CIT when there is no express power available under Section 12A of the Act.13. It is against this order, the assessee felt aggrieved and filed this appeal by way of special leave before this Court.14. None appeared for the appellant (assessee). Mr. Radhakrishan, learned Counsel appeared for the respondent (Revenue).
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### Explanation:
21. In our considered opinion, the CIT had no express power of cancellation of the registration certificate once granted by him to the assessee under Section 12A till 01.10.2004. It is for the reasons that, first, there was no express provision in the Act vesting the CIT with the power to cancel the registration certificate granted under Section 12A of the Act. Second, the order passed under Section 12A by the CIT is a quasi judicial order and being quasi judicial in nature, it could be withdrawn/recalled by the CIT only when there was express power vested in him under the Act to do so. In this case there was no such express power.22. Indeed, the functions exercisable by the CIT under Section 12A are neither legislative and nor executive but as mentioned above they are essentially quasi judicial in nature.23. Third, an order of the CIT passed under Section 12A does not fall in the category of "orders" mentioned in Section 21 of the General Clauses Act. The expression "order" employed in Section 21 would show that such "order" must be in the nature of a "notification", "rules" and "bye laws" etc. ( see – Indian National Congress(I) vs. Institute of Social Welfare & Ors., 2002 (5) SCC 685 ).24. In other words, the order, which can be modified or rescinded by applying Section 21, has to be either executive or legislative in nature whereas the order, which the CIT is required to pass under Section 12A of the Act, is neither legislative nor an executive order but it is a "quasi judicial order". It is for this reason, Section 21 has no application in this case.25. The general power, under Section 21 of the General Clauses Act, to rescind a notification or order has to be understood in the light of the subject matter, context and the effect of the relevant provisions of the statute under which the notification or order is issued and the power is not available after an enforceable right has accrued under the notification or order. Moreover, Section 21 has no application to vary or amend or review a quasi judicial order. A quasi judicial order can be generally varied or reviewed when obtained by fraud or when such power is conferred by the Act or Rules under which it is made. (See Interpretation of Statutes, Ninth Edition by G.P. Singh page 893).It is not in dispute that an express power was conferred on the CIT to cancel the registration for the first time by enacting(3) in Section 12AA only with effect from 01.10.2004 by the Finance (No.2) Act 2004 (23 of 2004) and hence such power could be exercised by the CIT only on and after 01.10.2004, i.e., (assessment yearbecause the amendment in question was not retrospective but was prospective in nature.We are of the considered view that the view taken by the abovementioned three High Courts in the respective cases is in conformity with law and we accordingly approve the said view taken by these High Courts in three aforementioned decisions.The issue involved in this appeal had also come up for consideration before three High Courts, namely, Delhi High Court in the case of Director of Income Tax (Exemptions) vs. Mool Chand Kairati Ram Trust, (2011) 243 CTR(Del) 245 , Uttaranchal High Court in the case of WelhamSchool Society vs. CBDT, (2006) 285 ITR 74(Uttaranchal) and Allahabad High Court in the case of Oxford 14 Academy for Career Development vs. Chief Commissioner of Income Tax & Ors. (2009) 315 ITR 382 (All).29. All the three High Courts after examining the issue, in the light of the object of Section 12A of the Act and Section 21 of the General Clauses Act held that the order of the CIT passed under Section 12A is quasi judicial in nature. Second, there was no express provision in the Act vesting the CIT with power of cancellation of registration till 01.10.2004; and lastly, Section 21of the General Clauses Act has no application to the order passed by the CIT under Section 12A because the order is quasi judicial in nature and it is for all these reasons the CIT had no jurisdiction to cancel the registration certificate once granted by him under Section 12A till the power was expressly conferred on the CIT by Section 12AA(3) of the Act w.e.f. 01.10.2004.
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VASHDEO R BHOJWANI Vs. ABHYUDAYA CO OPERATIVE BANK LTD | R.F. Nariman, J. 1. In the facts of the present case, at the relevant time, a default of Rs. 6.7 Crores was found as against the respondent No.2. The respondent No.2 had been declared a NPA by Abhyudaya Co- operative Bank Limited on 23.12.1999. Ultimately, a Recovery Certificate dated 24.12.2001 was issued for this amount. A Section 7 petition was filed by the Respondent No.1 on 21.07.2017 before the NCLT claiming that this amount together with interest, which kept ticking from 1998, was payable to the respondent as the loan granted to Respondent No.2 had originally been assigned, and, thanks to a merger with another Cooperative Bank in 2006, the respondent became a Financial Creditor to whom these moneys were owed. A petition under Section 7 was admitted on 05.03.2018 by the NCLT, stating that as the default continued, no period of limitation would attach and the petition would, therefore, have to be admitted. 2. An appeal filed to the NCLAT resulted in a dismissal on 05.09.2018, stating that since the cause of action in the present case was continuing no limitation period would attach. It was further held that the Recovery Certificate of 2001 plainly shows that there is a default and that there is no statable defence. 3. Having heard learned Counsel for both parties, we are of the view that this is a case covered by our recent judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 (14) Scale 482 , para 27 of which reads as follows:-"27. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.?4. In order to get out of the clutches of para 27, it is urged that Section 23 of the Limitation Act would apply as a result of which limitation would be saved in the present case. This contention is effectively answered by a judgment of three learned Judges of this Court in Balkrishna Savalram Pujari and Others vs. Shree Dnyaneshwar Maharaj Sansthan & Others, [1959] Supp. (2) S.C.R. 476. In this case, this Court held as follows:?… …. In dealing with this argument it is necessary to bear in mind that s.23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that s.23 can be invoked. Thus considered it is difficult to hold that the trustees? act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants? rights though the damage caused by the said decree subsequently continued...?(at page 496)Following this judgment, it is clear that when the Recovery Certificate dated 24.12.2001 was issued, this Certificate injured effectively and completely the appellant?s rights as a result of which limitation would have begun ticking. 5. This being the case, and the claim in the present suit being time barred, there is no doubt that is due and payable in law. | 1[ds]3. Having heard learned Counsel for both parties, we are of the view that this is a case covered by our recent judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 (14) Scale 482 , para 27 of which reads asIt is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.In order to get out of the clutches of para 27, it is urged that Section 23 of the Limitation Act would apply as a result of which limitation would be saved in the present case. This contention is effectively answered by a judgment of three learned Judges of this Court in Balkrishna Savalram Pujari and Others vs. Shree Dnyaneshwar Maharaj Sansthan & Others, [1959] Supp. (2) S.C.R. 476. In this case, this Court held as…. In dealing with this argument it is necessary to bear in mind that s.23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that s.23 can be invoked. Thus considered it is difficult to hold that the trustees? act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants? rights though the damage caused by the said decree subsequentlyng this judgment, it is clear that when the Recovery Certificate dated 24.12.2001 was issued, this Certificate injured effectively and completely the appellant?s rights as a result of which limitation would have begun ticking.This being the case, and the claim in the present suit being time barred, there is no doubt that is due and payable in law. | 1 | 823 | 563 | ### 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:
R.F. Nariman, J. 1. In the facts of the present case, at the relevant time, a default of Rs. 6.7 Crores was found as against the respondent No.2. The respondent No.2 had been declared a NPA by Abhyudaya Co- operative Bank Limited on 23.12.1999. Ultimately, a Recovery Certificate dated 24.12.2001 was issued for this amount. A Section 7 petition was filed by the Respondent No.1 on 21.07.2017 before the NCLT claiming that this amount together with interest, which kept ticking from 1998, was payable to the respondent as the loan granted to Respondent No.2 had originally been assigned, and, thanks to a merger with another Cooperative Bank in 2006, the respondent became a Financial Creditor to whom these moneys were owed. A petition under Section 7 was admitted on 05.03.2018 by the NCLT, stating that as the default continued, no period of limitation would attach and the petition would, therefore, have to be admitted. 2. An appeal filed to the NCLAT resulted in a dismissal on 05.09.2018, stating that since the cause of action in the present case was continuing no limitation period would attach. It was further held that the Recovery Certificate of 2001 plainly shows that there is a default and that there is no statable defence. 3. Having heard learned Counsel for both parties, we are of the view that this is a case covered by our recent judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 (14) Scale 482 , para 27 of which reads as follows:-"27. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.?4. In order to get out of the clutches of para 27, it is urged that Section 23 of the Limitation Act would apply as a result of which limitation would be saved in the present case. This contention is effectively answered by a judgment of three learned Judges of this Court in Balkrishna Savalram Pujari and Others vs. Shree Dnyaneshwar Maharaj Sansthan & Others, [1959] Supp. (2) S.C.R. 476. In this case, this Court held as follows:?… …. In dealing with this argument it is necessary to bear in mind that s.23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that s.23 can be invoked. Thus considered it is difficult to hold that the trustees? act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants? rights though the damage caused by the said decree subsequently continued...?(at page 496)Following this judgment, it is clear that when the Recovery Certificate dated 24.12.2001 was issued, this Certificate injured effectively and completely the appellant?s rights as a result of which limitation would have begun ticking. 5. This being the case, and the claim in the present suit being time barred, there is no doubt that is due and payable in law.
### Response:
1
### Explanation:
3. Having heard learned Counsel for both parties, we are of the view that this is a case covered by our recent judgment in B.K. Educational Services Private Limited vs. Parag Gupta and Associates, 2018 (14) Scale 482 , para 27 of which reads asIt is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.In order to get out of the clutches of para 27, it is urged that Section 23 of the Limitation Act would apply as a result of which limitation would be saved in the present case. This contention is effectively answered by a judgment of three learned Judges of this Court in Balkrishna Savalram Pujari and Others vs. Shree Dnyaneshwar Maharaj Sansthan & Others, [1959] Supp. (2) S.C.R. 476. In this case, this Court held as…. In dealing with this argument it is necessary to bear in mind that s.23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that s.23 can be invoked. Thus considered it is difficult to hold that the trustees? act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants? rights though the damage caused by the said decree subsequentlyng this judgment, it is clear that when the Recovery Certificate dated 24.12.2001 was issued, this Certificate injured effectively and completely the appellant?s rights as a result of which limitation would have begun ticking.This being the case, and the claim in the present suit being time barred, there is no doubt that is due and payable in law.
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Jaswant Singh and Others Etc Vs. Union of India and Others Etc | we are of the opinion that the petitioners are employees of the Central Government. Their conditions of service will be primarily governed by the terms of their appointment but, if they are entitled to the benefit of a ny of the rules of the Central Civil Services (Temporary Service) Rules 1965, they may make representations in that behalf to the appropriate authorities. It is, however, not possible for this Court to grant to the petitioners any of the reliefs claimed by them as arising out of the provisions of the aforesaid rules, including the relief by way of a declaration that they shall be deemed to be in quasi- permanent service under rule 3. We are further of the opinion that the petitioners have no right to be transferred to the services of the Bhakra Management Board, now re-named as the Bhakra Beas Management Board. Lastly, the proposed retrenchment of the petitioners does not offend against the guarantee of equality contained in articles 14 and 16 of the Constitution, since the petitioners and the Deputationists belong to two different and distinct classes.28. Before parting with the cases of these petitioners, we would like to record the assurance given by the lea rned Solicitor General on behalf of the Government of India that while retrenching the petitioners, the last come, first go rule will be applied inter se amongst the petitioners and further, that if and when any direct recruitments are made to the posts under the Bhakra Beas Management Board, preference in those appointments will be given to the petitioners, if they are retrenched.We will now proceed to deal with Writ Petitions Nos. 4505, 4536 and 4658 of 1978 in which the petitioners are all work-charged employees.29. A work-charged establishment broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work.30. The entire strength of labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employ- ed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Schemes.31. But though the work-charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of the pro- visions contained in the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a better position than temporary servant like the other petitioners who are liable to be thrown out of employment without any kind of compensatory benefits.32. The record of Writ Petition No. 4505 of 1978 shows that offers of alternative employment were made to the work- charged employees and many of them have accepted those offers. The rule of last come, first go has also been consistently adopted while retrenching the work-charged employees. In fact the work-charged employees possess a unique right as industrial employees since, by reason of section 25J(1) of the Industrial Disputes Act, the provisions of Chapter VA, "Lay-off and Retrenchment", have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing orders) Act, 1946.There were in all about 36000 work-charged employees working on the Beas Project. Out of them, about 26000 have already accepted retrenchment compensation under the settlement arrived between the workmen and the management in the conciliation proceedings held by the Regional Labour Commissioner (Central), New Delhi, under section 12 of the Industrial Disputes Act, 1947. All the 12 unions of which the work-charged employees are members were parties to the said conciliation proceedings. By reason of section 18(3)(d) of the Industrial Disputes Act, a settlement arrived at in the course of a conciliation proceeding is binding on all persons who were employed in the establishment to which the dispute relates, whether they were employed on the date of the dispute or subsequently. In Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravorty and ors., it was held by this Court that it is not even necessary, in order to bind the work men to the settlement arrived at before the conciliator, to show that they belonged to the union which took part in the conciliation proceedings, since the policy underlying section 18 of the Act is to give an extended operation to such settlements. In the instant case, all the 12 unions which represented the workmen on the work-charged establishment were parties to the conciliation proceedings. The settlement will therefore bind all the work-charged employees.33. Apart from the settlement in the conciliation proceedings, an award was made by the Industrial Tribunal, Central, Chandigarh, in Reference No. 2-C of 1971, in an industrial dispute between the work-charged employees of the Beas-Sutlej Link Project, Sundernagar, with which we are concerned, and the management. Under that award, as stated in the award itself, a consent formula was evolved to which the workmen "virtually agreed". The benefits which flow- to the work- charged employees under the aforesaid award dated May 15, 1974, have been accepted by almost all the work- charged employees, involving a burden of about Rs. 3 crores on the employers.Since the work-charged employees are bound by the settlement dated June 28, 1977 effected between them and the management in the conciliation proceedings and since they are also bound by and have accepted benefits under the consent award dated May 15, 1974, they are not entitled to any rights apart from those flowing from the A aforesaid settlement and the Award. S | 0[ds]The provisions of the Punjab Reorganisation Act afford in our opinion a clear answer to the question whetherthe petitioners are employees of the Centralprovisions leave no doubt that the petitioners, though appointed under orders issued by or on behalf of the Beas Control Board or the Beas Construction Board are employees of the Central Government. Such of the petitioners as were appointed by the Beas Control Board became the employees of the Beas Construction Board by virtue of the first proviso to section 80(3) which we have extracted above. The construction of the Beas Project was commenced in the year 1960 as a joint venture of the composite State of Punjab and the State of Rajasthan. The Beas Control Board was established on February 10, 1961 and it is by and on behalf of that Board that some of the petitioners were appointed prior to November 1, 1966 when the Punjab Reorganisation Act came into force. The Beas Control Board ceased to exist and its place was taken by the Beas Construction Board which was constituted on October 1, 1967. The remaining petitioners were appointed by or under the authority of the Beas Construction Board. The position which therefore emerges is that either by reason of the first proviso to section 80(3) under which ever y person who immediately before the constitution of the Beas Construction Board was engaged in the construction of any work relating to the Beas Project became entitled to continue to be so employed by the Beas Construction Board, or because t he appointments were made for the first time by the Beas Construction Board itself, the petitioners became the employees or were employed by the Beas Construction Board.That leads to the question whether the Beas Construction Board was a body incorporate with an independent statutory existence or B, whether it was merely a limb of the Central Government. Section 80(l), which clinches the matter, provides that notwithstanding anything complained in the Reorganisation Act or in any other law, the construction and completion of any work of the Beas Project shall be undertaken by the Central Government on and from November I, 1966. It is undoubtedly true that under the said provision, the Beas Project was t o be undertaken by the Central Government on behalf of the successor States and the State of Rajasthan. But the direct and immediate responsibility to construct and complete works of the Beas Project was imposed by the statute on the Central Government and not on the successor States and the State of Rajasthan. Under the proviso to section 80(1), the Governments of these States are only under an obligation to provide the necessary funds to the Central Government for meeting the expenditure o n the Beas Project, including the expenses of the Beas Construction Board in behalf of the discharge of its functions under sub-section ( 1 ) . The Central Government is empowered by section 80(2) (a) to constitute the Beas Construction Board "with such members as it may deem fit" and to assign to that Board "such functions as it may consideris impossible to entertain the plea that the petitioners are entitled to any such certificate. Rule 3 of the aforesaid rules provides that a Government servant shall be deemed to be in quasi- permanent service if, (i) he has been in continuous service for mor e than three years and (ii), the appointing authority being satisfied, having regard to the quality of his work, conduct and character as to his suitability for employment in quasi-permanent capacity under the Government of India, has made a declaration to that effect. It does appear that the petitioners have been in continuous temporary service for more than three years but whether they fulfil the second condition or not is a matter to be decided by the appointing authority having regard to the various circumstances mentioned therein. No Government servant can claim entitlement to a declaration that he is in quasi-permanent service, because the question as to whether he is entitled to such a declaration does not depend upon the mere fact of his being in service for a particular number of years. We cannot therefore grant to the petitioners this particularis no warrant for this submission because, though section 80(5) requires a completed work of the Beas Project to be transferred to the Bhakra Management Board, it does not provide that persons who were employed in connection with such a work should also be transferred as employees of the Bhakra Management Board. In the very nature of things there could be no such provision because if any persons were employed for the Beas Project only, their employment would normally cease on completion of that Project. In fact, the petitioners were taken in employment on temporary posts for the purpose of completing the Beas project. On the completion of that Project or any other works for which they were employed their employment would normally come to an end, especially since the statute from which their rights are said to flow does not protect thatfirst proviso to section 79(4) speaks of persons who immediately before "the constitution" of the Bhakra Management Board were engaged in the works mentioned in sub- section (1) of section 79. The scheme of section 80 shows that the Bhakra Beas Management Board was never constituted as such. The only effect which the statute brings about by sub-section (6) of section 80 is the renaming of Bhakra Management Board as the Bhakra Beas Manage ment Board. The words "constitution of the said Board" cannot therefore be substituted by the words "the renaming of the said Board". The contemplation of section 79(4) is that only a certain class of employees should receive protection in the mat ter of continued employment. Unfortunately, the petitioners do not fall within that class since they were not employees of the Bhakra Management Board immediately before October 1, 1967 when that Board wassum up, we are of the opinion thatthe petitioners are employees of the CentralGovernment. Their conditions of service will be primarily governed by the terms of their appointment but, if they are entitled to the benefit of a ny of the rules of the Central Civil Services (Temporary Service) Rules 1965, they may make representations in that behalf to the appropriate authorities. It is, however, not possible for this Court to grant to the petitioners any of the reliefs claimed by them as arising out of the provisions of the aforesaid rules, including the relief by way of a declaration that they shall be deemed to be in quasi- permanent service under rule 3. We are further of the opinion that the petitioners have no right to be transferred to the services of the Bhakra Management Board, now re-named as the Bhakra Beas Management Board. Lastly, the proposed retrenchment of the petitioners does not offend against the guarantee of equality contained in articles 14 and 16 of the Constitution, since the petitioners and the Deputationists belong to two different and distinctentire strength of labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employ- ed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurancethough the work-charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of the pro- visions contained in the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a better position than temporary servant like the other petitioners who are liable to be thrown out of employment without any kind of compensatoryrecord of Writ Petition No. 4505 of 1978 shows that offers of alternative employment were made to the work- charged employees and many of them have accepted those offers. The rule of last come, first go has also been consistently adopted while retrenching the work-charged employees. In fact the work-charged employees possess a unique right as industrial employees since, by reason of section 25J(1) of the Industrial Disputes Act, the provisions of Chapter VA, "Lay-off and Retrenchment", have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing orders) Act, 1946.There were in all about 36000 work-charged employees working on the Beas Project. Out of them, about 26000 have already accepted retrenchment compensation under the settlement arrived between the workmen and the management in the conciliation proceedings held by the Regional Labour Commissioner (Central), New Delhi, under section 12 ofthe Industrial Disputes Act, 1947. All the 12 unions of which the work-charged employees are members were parties to the said conciliation proceedings. By reason of section 18(3)(d) of the Industrial Disputes Act, a settlement arrived at in the course of a conciliation proceeding is binding on all persons who were employed in the establishment to which the dispute relates, whether they were employed on the date of the dispute orfrom the settlement in the conciliation proceedings, an award was made by the Industrial Tribunal, Central, Chandigarh, in Reference No. 2-C of 1971, in an industrial dispute between the work-charged employees of the Beas-Sutlej Link Project, Sundernagar, with which we are concerned, and the management. Under that award, as stated in the award itself, a consent formula was evolved to which the workmen "virtually agreed". The benefits which flow- to the work- charged employees under the aforesaid award dated May 15, 1974, have been accepted by almost all the work- charged employees, involving a burden of about Rs. 3 crores on the employers.Since the work-charged employees are bound by the settlement dated June 28, 1977 effected between them and the management in the conciliation proceedings and since they are also bound by and have accepted benefits under the consent award dated May 15, 1974, they are not entitled to any rights apart from those flowing from the A aforesaid settlement and the Award. | 0 | 8,287 | 1,894 | ### Instruction:
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we are of the opinion that the petitioners are employees of the Central Government. Their conditions of service will be primarily governed by the terms of their appointment but, if they are entitled to the benefit of a ny of the rules of the Central Civil Services (Temporary Service) Rules 1965, they may make representations in that behalf to the appropriate authorities. It is, however, not possible for this Court to grant to the petitioners any of the reliefs claimed by them as arising out of the provisions of the aforesaid rules, including the relief by way of a declaration that they shall be deemed to be in quasi- permanent service under rule 3. We are further of the opinion that the petitioners have no right to be transferred to the services of the Bhakra Management Board, now re-named as the Bhakra Beas Management Board. Lastly, the proposed retrenchment of the petitioners does not offend against the guarantee of equality contained in articles 14 and 16 of the Constitution, since the petitioners and the Deputationists belong to two different and distinct classes.28. Before parting with the cases of these petitioners, we would like to record the assurance given by the lea rned Solicitor General on behalf of the Government of India that while retrenching the petitioners, the last come, first go rule will be applied inter se amongst the petitioners and further, that if and when any direct recruitments are made to the posts under the Bhakra Beas Management Board, preference in those appointments will be given to the petitioners, if they are retrenched.We will now proceed to deal with Writ Petitions Nos. 4505, 4536 and 4658 of 1978 in which the petitioners are all work-charged employees.29. A work-charged establishment broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work.30. The entire strength of labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employ- ed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Schemes.31. But though the work-charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of the pro- visions contained in the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a better position than temporary servant like the other petitioners who are liable to be thrown out of employment without any kind of compensatory benefits.32. The record of Writ Petition No. 4505 of 1978 shows that offers of alternative employment were made to the work- charged employees and many of them have accepted those offers. The rule of last come, first go has also been consistently adopted while retrenching the work-charged employees. In fact the work-charged employees possess a unique right as industrial employees since, by reason of section 25J(1) of the Industrial Disputes Act, the provisions of Chapter VA, "Lay-off and Retrenchment", have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing orders) Act, 1946.There were in all about 36000 work-charged employees working on the Beas Project. Out of them, about 26000 have already accepted retrenchment compensation under the settlement arrived between the workmen and the management in the conciliation proceedings held by the Regional Labour Commissioner (Central), New Delhi, under section 12 of the Industrial Disputes Act, 1947. All the 12 unions of which the work-charged employees are members were parties to the said conciliation proceedings. By reason of section 18(3)(d) of the Industrial Disputes Act, a settlement arrived at in the course of a conciliation proceeding is binding on all persons who were employed in the establishment to which the dispute relates, whether they were employed on the date of the dispute or subsequently. In Ramnagar Cane and Sugar Co. Ltd. v. Jatin Chakravorty and ors., it was held by this Court that it is not even necessary, in order to bind the work men to the settlement arrived at before the conciliator, to show that they belonged to the union which took part in the conciliation proceedings, since the policy underlying section 18 of the Act is to give an extended operation to such settlements. In the instant case, all the 12 unions which represented the workmen on the work-charged establishment were parties to the conciliation proceedings. The settlement will therefore bind all the work-charged employees.33. Apart from the settlement in the conciliation proceedings, an award was made by the Industrial Tribunal, Central, Chandigarh, in Reference No. 2-C of 1971, in an industrial dispute between the work-charged employees of the Beas-Sutlej Link Project, Sundernagar, with which we are concerned, and the management. Under that award, as stated in the award itself, a consent formula was evolved to which the workmen "virtually agreed". The benefits which flow- to the work- charged employees under the aforesaid award dated May 15, 1974, have been accepted by almost all the work- charged employees, involving a burden of about Rs. 3 crores on the employers.Since the work-charged employees are bound by the settlement dated June 28, 1977 effected between them and the management in the conciliation proceedings and since they are also bound by and have accepted benefits under the consent award dated May 15, 1974, they are not entitled to any rights apart from those flowing from the A aforesaid settlement and the Award. S
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Beas Project to be transferred to the Bhakra Management Board, it does not provide that persons who were employed in connection with such a work should also be transferred as employees of the Bhakra Management Board. In the very nature of things there could be no such provision because if any persons were employed for the Beas Project only, their employment would normally cease on completion of that Project. In fact, the petitioners were taken in employment on temporary posts for the purpose of completing the Beas project. On the completion of that Project or any other works for which they were employed their employment would normally come to an end, especially since the statute from which their rights are said to flow does not protect thatfirst proviso to section 79(4) speaks of persons who immediately before "the constitution" of the Bhakra Management Board were engaged in the works mentioned in sub- section (1) of section 79. The scheme of section 80 shows that the Bhakra Beas Management Board was never constituted as such. The only effect which the statute brings about by sub-section (6) of section 80 is the renaming of Bhakra Management Board as the Bhakra Beas Manage ment Board. The words "constitution of the said Board" cannot therefore be substituted by the words "the renaming of the said Board". The contemplation of section 79(4) is that only a certain class of employees should receive protection in the mat ter of continued employment. Unfortunately, the petitioners do not fall within that class since they were not employees of the Bhakra Management Board immediately before October 1, 1967 when that Board wassum up, we are of the opinion thatthe petitioners are employees of the CentralGovernment. Their conditions of service will be primarily governed by the terms of their appointment but, if they are entitled to the benefit of a ny of the rules of the Central Civil Services (Temporary Service) Rules 1965, they may make representations in that behalf to the appropriate authorities. It is, however, not possible for this Court to grant to the petitioners any of the reliefs claimed by them as arising out of the provisions of the aforesaid rules, including the relief by way of a declaration that they shall be deemed to be in quasi- permanent service under rule 3. We are further of the opinion that the petitioners have no right to be transferred to the services of the Bhakra Management Board, now re-named as the Bhakra Beas Management Board. Lastly, the proposed retrenchment of the petitioners does not offend against the guarantee of equality contained in articles 14 and 16 of the Constitution, since the petitioners and the Deputationists belong to two different and distinctentire strength of labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employ- ed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurancethough the work-charged employees are denied these benefits, they are industrial workers and are entitled to the benefits of the pro- visions contained in the Industrial Disputes Act. Their rights flow from that special enactment under which even contracts of employment are open to adjustment and modification. The work-charged employees, therefore, are in a better position than temporary servant like the other petitioners who are liable to be thrown out of employment without any kind of compensatoryrecord of Writ Petition No. 4505 of 1978 shows that offers of alternative employment were made to the work- charged employees and many of them have accepted those offers. The rule of last come, first go has also been consistently adopted while retrenching the work-charged employees. In fact the work-charged employees possess a unique right as industrial employees since, by reason of section 25J(1) of the Industrial Disputes Act, the provisions of Chapter VA, "Lay-off and Retrenchment", have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing orders) Act, 1946.There were in all about 36000 work-charged employees working on the Beas Project. Out of them, about 26000 have already accepted retrenchment compensation under the settlement arrived between the workmen and the management in the conciliation proceedings held by the Regional Labour Commissioner (Central), New Delhi, under section 12 ofthe Industrial Disputes Act, 1947. All the 12 unions of which the work-charged employees are members were parties to the said conciliation proceedings. By reason of section 18(3)(d) of the Industrial Disputes Act, a settlement arrived at in the course of a conciliation proceeding is binding on all persons who were employed in the establishment to which the dispute relates, whether they were employed on the date of the dispute orfrom the settlement in the conciliation proceedings, an award was made by the Industrial Tribunal, Central, Chandigarh, in Reference No. 2-C of 1971, in an industrial dispute between the work-charged employees of the Beas-Sutlej Link Project, Sundernagar, with which we are concerned, and the management. Under that award, as stated in the award itself, a consent formula was evolved to which the workmen "virtually agreed". The benefits which flow- to the work- charged employees under the aforesaid award dated May 15, 1974, have been accepted by almost all the work- charged employees, involving a burden of about Rs. 3 crores on the employers.Since the work-charged employees are bound by the settlement dated June 28, 1977 effected between them and the management in the conciliation proceedings and since they are also bound by and have accepted benefits under the consent award dated May 15, 1974, they are not entitled to any rights apart from those flowing from the A aforesaid settlement and the Award.
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Rattan Anmol Singh & Another Vs. Atma Ram & Others | between singing and the making of a mark as the Act itself does in the definition of sign. It is true the word subscribe is not defined but it is equally clear, when the Act is read as a whole along with the form in the second Schedule, that subscribe can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of signature are to be made, we are bound to give effect to it. In the case of a person who is unable to write his name his signature must be authenticated in such manner as may be prescribed. The prescribed manner is to be found in Rule 2 (2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951. It runs as follows : For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer on being satisfied as to his identity has attested the mark as being the mark of such person. In view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names. 13. The four nomination papers we are concerned with were not signed by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been signed in the special way which the Act requires in such cases. If they are not signed either in one way or the other, then it is clear that they have not been subscribed because subscribing imports a signature and as the Act sets out the only kinds of signatures which is will recognise as singing for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was, therefore, bound to reject them under Section 36 (2) (d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section 36 (4). 14. That sub-section is as follows : The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. The question, therefore, is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer had omitted the satisfaction 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 element 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. But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the subscribing required in the case of the candidate himself. If there is no signature and no mark the form would have to be rejected and there absence could not be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the Rules require is not, in our opinion, any the less important and imperative. 15. The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage. It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage. The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attention and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been. Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been any failure to comply with any of the provisions of Section 33........ The only jurisdiction the Returning Officer has at the security stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical and unsubstantial it will not matter. If it is not, it cannot be set right; 16. We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers. | 1[ds]In our opinion, the crux of the matter lies there. We have to see from the Act itself whether sign and subscribe mean the same thing and whether they can be taken to include the placing of a mark. The majority decision of the Tribunal holds that sign and subscribe are not used in the same sense in the Act because a special meaning has been given to the word sign and none to the word subscribe, therefore, we must use ordinary meaning is to sign but not to sign the ordinary way8. We agree with the learned Chairman of the Tribunal that this is fallacious reasoning. The General Clauses Act does not define the word subscribe any more than the Representation of the People Act, and if it is improper to exclude the special meaning given to sign in the Representation of the People Act because the word sign is defined and not subscribe, it is equal improper to import the special definition of sign in the General Clauses Act because that also defines only sign and not subscribe, and also because the subject and context of the Representation of the People Act show that the writing of a signature and the making of a mark are to be treated differentlyWe do not know why this should be unless, as was suggested by the learned Solicitor-general, the legislature wished to underline the fact that the proposer and seconder are not merely singing by way of attesting the candidates signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and as a person for whom they are prepared to vouch, also that the candidates signature imports more than a mere vouching for the accuracy of the facts entered in the form. It imports assent to his nomination. We think the learned Solicitor-general is probably right because Section 33 speaksa nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nominationIt is evident then that whatever the element of signing. It is evident then that wherever the element of singing has to be incorporated into any provision of the Act it must be construed in the sense set out aboveTherefore, whether subscribe is a synonym for sign or whether it means sign plus something else, namely, a particular assent, the element of singing has to be present; the Schedule places that beyond doubt because it requires certain signatures. We are consequently of opinion that the signing, whenever a signature is necessary, must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Whether this attaches exaggerated importance the authorization is not for us to decide. What is beyond dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases. We are therefore bound to give full effect to this policyIn view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names13. The four nomination papers we are concerned with were not signed by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been signed in the special way which the Act requires in such cases. If they are not signed either in one way or the other, then it is clear that they have not been subscribed because subscribing imports a signature and as the Act sets out the only kinds of signatures which is will recognise as singing for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was, therefore, bound to reject them under Section 36 (2) (d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section 36 (4)We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer had omitted the satisfaction 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 element 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 technicalityBut we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the subscribing required in the case of the candidate himself. If there is no signature and no mark the form would have to be rejected and there absence could not be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the Rules require is not, in our opinion, any the less important and imperativeIt must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage. The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attention and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have beenThe only jurisdiction the Returning Officer has at the security stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical and unsubstantial it will not matter. If it is not, it cannot be set right;16. We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers. | 1 | 2,795 | 1,250 | ### Instruction:
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between singing and the making of a mark as the Act itself does in the definition of sign. It is true the word subscribe is not defined but it is equally clear, when the Act is read as a whole along with the form in the second Schedule, that subscribe can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of signature are to be made, we are bound to give effect to it. In the case of a person who is unable to write his name his signature must be authenticated in such manner as may be prescribed. The prescribed manner is to be found in Rule 2 (2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951. It runs as follows : For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer on being satisfied as to his identity has attested the mark as being the mark of such person. In view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names. 13. The four nomination papers we are concerned with were not signed by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been signed in the special way which the Act requires in such cases. If they are not signed either in one way or the other, then it is clear that they have not been subscribed because subscribing imports a signature and as the Act sets out the only kinds of signatures which is will recognise as singing for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was, therefore, bound to reject them under Section 36 (2) (d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section 36 (4). 14. That sub-section is as follows : The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. The question, therefore, is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer had omitted the satisfaction 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 element 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. But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the subscribing required in the case of the candidate himself. If there is no signature and no mark the form would have to be rejected and there absence could not be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the Rules require is not, in our opinion, any the less important and imperative. 15. The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage. It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage. The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attention and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been. Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been any failure to comply with any of the provisions of Section 33........ The only jurisdiction the Returning Officer has at the security stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical and unsubstantial it will not matter. If it is not, it cannot be set right; 16. We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers.
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because that also defines only sign and not subscribe, and also because the subject and context of the Representation of the People Act show that the writing of a signature and the making of a mark are to be treated differentlyWe do not know why this should be unless, as was suggested by the learned Solicitor-general, the legislature wished to underline the fact that the proposer and seconder are not merely singing by way of attesting the candidates signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and as a person for whom they are prepared to vouch, also that the candidates signature imports more than a mere vouching for the accuracy of the facts entered in the form. It imports assent to his nomination. We think the learned Solicitor-general is probably right because Section 33 speaksa nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nominationIt is evident then that whatever the element of signing. It is evident then that wherever the element of singing has to be incorporated into any provision of the Act it must be construed in the sense set out aboveTherefore, whether subscribe is a synonym for sign or whether it means sign plus something else, namely, a particular assent, the element of singing has to be present; the Schedule places that beyond doubt because it requires certain signatures. We are consequently of opinion that the signing, whenever a signature is necessary, must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Whether this attaches exaggerated importance the authorization is not for us to decide. What is beyond dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases. We are therefore bound to give full effect to this policyIn view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names13. The four nomination papers we are concerned with were not signed by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been signed in the special way which the Act requires in such cases. If they are not signed either in one way or the other, then it is clear that they have not been subscribed because subscribing imports a signature and as the Act sets out the only kinds of signatures which is will recognise as singing for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was, therefore, bound to reject them under Section 36 (2) (d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section 36 (4)We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of writing a signature. If the Returning Officer had omitted the satisfaction 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 element 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 technicalityBut we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the subscribing required in the case of the candidate himself. If there is no signature and no mark the form would have to be rejected and there absence could not be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the Rules require is not, in our opinion, any the less important and imperativeIt must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage. The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attention and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have beenThe only jurisdiction the Returning Officer has at the security stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical and unsubstantial it will not matter. If it is not, it cannot be set right;16. We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers.
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THE STATE OF ODISHA Vs. DHIRENDRA SUNDAR DAS | Service Group ‘B? posts.7.17. To the contrary, some of them have participated in the proceedings of the D.P.C. convened on 30.04.2013 for recruitment to the newly created Orissa Revenue Service Group ‘B? cadre.After being considered, 6 of the contesting Respondents were selected, while 1 was kept on the Waiting List.The State appointed the said Respondents to the Orissa Revenue Service Group ‘B? posts. However, only two out of the five contesting Respondents who were appointed, joined the posts.7.18. Subsequently, during the pendency of the W.P.s, another D.P.C. was convened to consider the promotion of employees working in the Orissa Revenue Services Group ‘B? posts to Orissa Administrative Service Group A (Junior Branch) posts.1 contesting Respondent was promoted to the OAS Group A (Junior Branch) cadre.7.19. The contesting Respondents cannot claim any lien over the abolished OAS Class – II posts, which were governed by the old OAS Class II Rules, 1978 and OAS Class II Regulations, 1978.7.20. In this context, reliance may be placed on two decisions of this Court in Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202. and Union of India & Ors. v. Krishna Kumar & Ors. 2019 (1) SCALE 691. .In Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202. this Court rejected a claim for filing up vacancies in posts which no longer existed, after an amendment of the extant Rules. The relevant excerpt of the decision is reproduced hereinbelow for ready reference:?14. …Once it is held that the old vacancies were in posts which no longer existed after April 1995, there remained no occasion to consider whether these old vacancies could be filled in by applying earlier rules of recruitment to the very same posts…There were no such posts after April 1995 in the cadres of the Rajasthan Agricultural Marketing Service as seen earlier…15. …On the contrary a three¬Judge Bench judgment of this Court in the case of Jai Singh Dalal v. State of Haryana [1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846 : (1993) 24 ATC 788] would squarely get attracted on the facts of the present case. A.M. Ahmadi J., speaking for the three¬Judge Bench in para 7 of the Report relying on an earlier judgment of this Court in case of State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] laid down that when the special process of recruitment had not been finalised and culminated into select list the candidate did not have any right to appointment. In this connection it was observed that the recruitment process could be stopped by the Government at any time before a candidate has been appointed. A candidate has no vested right to get the process completed and at the most the Government could be required to justify its action on the touchstone of Article 14 of the Constitution.?(emphasis supplied)In Union of India & Ors. v. Krishna Kumar & Ors. 2019 (1) SCALE 691. this Court was dealing with a similar situation of cadre restructuring.The relevant extract of the decision is reproduced hereinbelow for ready reference:?14. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion.?(emphasis supplied)7.21. The submission of the contesting Respondents that their case be considered at par with the candidates appointed by way of selection and promotion as against the vacancies for the years 2001 to 2005 is not tenable.The appointments of persons as against the vacancies for the years 2001 to 2005 were made vide two Notifications dated December 7, 2010, which were issued prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978.7.22. Finally, the High Court had relied upon the decision in Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors. 2012 (II) OLR 61. [W.P. (C) No. 19827/2009; Decided on 16.04.2012] to hold that promotions could be given under the repealed OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978. The S.L.P. against this judgment had been simply dismissed. The Counsel for the contesting Respondents prayed for dismissal of the present Civil Appeals by submitting that the said decision had been affirmed by this Court vide Order dated 28.09.2012.It is a well¬settled principle of law emerging from a catena of decisions of this Court, including Supreme Court Employees? Welfare Association v. Union of India & Anr. (1989) 1 SCC 187 (paras 22 and 23) and State of Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC 770 (paras 112 and 113), that the dismissal of a S.L.P. in limine simply implies that the case before this Court was not considered worthy of examination for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons, does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution. | 1[ds]7.1. The contesting Respondents cannot claim an accrued or vested right for selection or promotion to OAS Class – II posts in the year 2008, merely on the basis of their names being forwarded by the respective Departmental Authorities.7.After considering the list prepared under Regulation 7 along with other documents and records received from the State Government, the Orissa Public Service Commission was required to recommend a list of candidates suitable for selection or promotion, as the case may be, under Regulation 9.7.10. The list of candidates recommended by the Orissa Public Service Commission under Regulation 9 was required to be placed before the State Government. The said list, after any approval with modification, was to form the final list from which appointments were to be made to OAS Class – II posts by way of selection or promotion in accordance with Regulation 10.Thus, the recruitment process by way of selection or promotion, as the case may be, initiated in accordance with Regulation 6 would culminate on the making of a final list as per Regulation 10. Appointments by way of promotion or selection could be made only from amongst the candidates whose names featured in the final list prepared by the Commission, and placed before the State Government.7.In the present case, the names of 559 candidates, including the contesting Respondents, were merely recommended by their respective Departmental Authorities under Regulation 6. The recruitment process did not proceed any further in accordance with Regulations 7, 8, 9 and 10. No final list of selected candidates was placed by the Orissa Public Service Commission before the State Government for the purposes of appointment as against the vacancies of 2008.As such, the contesting Respondents who had merely been recommended by their respective Departmental Authorities could not be considered to be ‘eligible? for appointment by way of promotion or selection under the erstwhile OAS Class II Regulations, 1978, since the steps set out in the regulations mentioned below had not been completed prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class7 – preparation of a list of suitable candidates by the Selection8 – consultation with the Orissa Public ServiceRegulation 9 – recommendation of the Orissa Public Service Commission;10 – preparation and placement of final list before the State Government forthe contesting Respondents had not acquired an accrued or vested right of selection or promotion to OAS Class – II posts in accordance with the OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978, since their names had never been considered for selection or promotion beyond the stage contemplated under Regulation 6.7.In the present case the contesting Respondents had merely been recommended by the respective Departmental Authorities under Regulation 6. The recruitment process had not proceeded any further thereafter. There was no time¬frame prescribed for completion of the recruitment process under the erstwhile OAS Class – II Rules, 1978 or the OAS Class – II Regulations, 1978.7.15. In the meanwhile, the State restructured the Orissa Administrative Service cadre, and constituted the Orissa Revenue Service vide Resolutions dated 28.02.2009 and 25.05.2009.As a part of the re¬structuring exercise, the erstwhile OAS Class – II posts were abolished, and a corresponding new cadre of Group ‘B? posts in the newly constituted Orissa Revenue Service was created.7.16. The contesting Respondents have not challenged either the abolition of OAS Class – II posts, or the creation of the corresponding Orissa Revenue Service Group ‘B? posts.7.17. To the contrary, some of them have participated in the proceedings of the D.P.C. convened on 30.04.2013 for recruitment to the newly created Orissa Revenue Service Group ‘B? cadre.After being considered, 6 of the contesting Respondents were selected, while 1 was kept on the Waiting List.The State appointed the said Respondents to the Orissa Revenue Service Group ‘B? posts. However, only two out of the five contesting Respondents who were appointed, joined the posts.7.18. Subsequently, during the pendency of the W.P.s, another D.P.C. was convened to consider the promotion of employees working in the Orissa Revenue Services Group ‘B? posts to Orissa Administrative Service Group A (Junior Branch) posts.1 contesting Respondent was promoted to the OAS Group A (Junior Branch) cadre.7.19. The contesting Respondents cannot claim any lien over the abolished OAS Class – II posts, which were governed by the old OAS Class II Rules, 1978 and OAS Class II Regulations, 1978.7.The submission of the contesting Respondents that their case be considered at par with the candidates appointed by way of selection and promotion as against the vacancies for the years 2001 to 2005 is not tenable.The appointments of persons as against the vacancies for the years 2001 to 2005 were made vide two Notifications dated December 7, 2010, which were issued prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978.7.22. Finally, the High Court had relied upon the decision in Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors. 2012 (II) OLR 61. [W.P. (C) No. 19827/2009; Decided on 16.04.2012] to hold that promotions could be given under the repealed OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978. The S.L.P. against this judgment had been simply dismissed. TheCounsel for the contesting Respondents prayed for dismissal of the present Civil Appeals by submitting that the said decision had been affirmed by this Court vide Order datedis a well¬settled principle of law emerging from a catena of decisions of this Court, including Supreme Court Employees? Welfare Association v. Union of India & Anr. (1989) 1 SCC 187 (paras 22 and 23) and State of Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC 770 (paras 112 and 113), that the dismissal of a S.L.P. in limine simply implies that the case before this Court was not considered worthy of examination for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons, does not constitute any declaration of law or a binding precedent under Article 141 of the | 1 | 5,254 | 1,131 | ### 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:
Service Group ‘B? posts.7.17. To the contrary, some of them have participated in the proceedings of the D.P.C. convened on 30.04.2013 for recruitment to the newly created Orissa Revenue Service Group ‘B? cadre.After being considered, 6 of the contesting Respondents were selected, while 1 was kept on the Waiting List.The State appointed the said Respondents to the Orissa Revenue Service Group ‘B? posts. However, only two out of the five contesting Respondents who were appointed, joined the posts.7.18. Subsequently, during the pendency of the W.P.s, another D.P.C. was convened to consider the promotion of employees working in the Orissa Revenue Services Group ‘B? posts to Orissa Administrative Service Group A (Junior Branch) posts.1 contesting Respondent was promoted to the OAS Group A (Junior Branch) cadre.7.19. The contesting Respondents cannot claim any lien over the abolished OAS Class – II posts, which were governed by the old OAS Class II Rules, 1978 and OAS Class II Regulations, 1978.7.20. In this context, reliance may be placed on two decisions of this Court in Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202. and Union of India & Ors. v. Krishna Kumar & Ors. 2019 (1) SCALE 691. .In Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202. this Court rejected a claim for filing up vacancies in posts which no longer existed, after an amendment of the extant Rules. The relevant excerpt of the decision is reproduced hereinbelow for ready reference:?14. …Once it is held that the old vacancies were in posts which no longer existed after April 1995, there remained no occasion to consider whether these old vacancies could be filled in by applying earlier rules of recruitment to the very same posts…There were no such posts after April 1995 in the cadres of the Rajasthan Agricultural Marketing Service as seen earlier…15. …On the contrary a three¬Judge Bench judgment of this Court in the case of Jai Singh Dalal v. State of Haryana [1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846 : (1993) 24 ATC 788] would squarely get attracted on the facts of the present case. A.M. Ahmadi J., speaking for the three¬Judge Bench in para 7 of the Report relying on an earlier judgment of this Court in case of State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] laid down that when the special process of recruitment had not been finalised and culminated into select list the candidate did not have any right to appointment. In this connection it was observed that the recruitment process could be stopped by the Government at any time before a candidate has been appointed. A candidate has no vested right to get the process completed and at the most the Government could be required to justify its action on the touchstone of Article 14 of the Constitution.?(emphasis supplied)In Union of India & Ors. v. Krishna Kumar & Ors. 2019 (1) SCALE 691. this Court was dealing with a similar situation of cadre restructuring.The relevant extract of the decision is reproduced hereinbelow for ready reference:?14. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion.?(emphasis supplied)7.21. The submission of the contesting Respondents that their case be considered at par with the candidates appointed by way of selection and promotion as against the vacancies for the years 2001 to 2005 is not tenable.The appointments of persons as against the vacancies for the years 2001 to 2005 were made vide two Notifications dated December 7, 2010, which were issued prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978.7.22. Finally, the High Court had relied upon the decision in Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors. 2012 (II) OLR 61. [W.P. (C) No. 19827/2009; Decided on 16.04.2012] to hold that promotions could be given under the repealed OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978. The S.L.P. against this judgment had been simply dismissed. The Counsel for the contesting Respondents prayed for dismissal of the present Civil Appeals by submitting that the said decision had been affirmed by this Court vide Order dated 28.09.2012.It is a well¬settled principle of law emerging from a catena of decisions of this Court, including Supreme Court Employees? Welfare Association v. Union of India & Anr. (1989) 1 SCC 187 (paras 22 and 23) and State of Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC 770 (paras 112 and 113), that the dismissal of a S.L.P. in limine simply implies that the case before this Court was not considered worthy of examination for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons, does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution.
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### Explanation:
or promotion to OAS Class – II posts in the year 2008, merely on the basis of their names being forwarded by the respective Departmental Authorities.7.After considering the list prepared under Regulation 7 along with other documents and records received from the State Government, the Orissa Public Service Commission was required to recommend a list of candidates suitable for selection or promotion, as the case may be, under Regulation 9.7.10. The list of candidates recommended by the Orissa Public Service Commission under Regulation 9 was required to be placed before the State Government. The said list, after any approval with modification, was to form the final list from which appointments were to be made to OAS Class – II posts by way of selection or promotion in accordance with Regulation 10.Thus, the recruitment process by way of selection or promotion, as the case may be, initiated in accordance with Regulation 6 would culminate on the making of a final list as per Regulation 10. Appointments by way of promotion or selection could be made only from amongst the candidates whose names featured in the final list prepared by the Commission, and placed before the State Government.7.In the present case, the names of 559 candidates, including the contesting Respondents, were merely recommended by their respective Departmental Authorities under Regulation 6. The recruitment process did not proceed any further in accordance with Regulations 7, 8, 9 and 10. No final list of selected candidates was placed by the Orissa Public Service Commission before the State Government for the purposes of appointment as against the vacancies of 2008.As such, the contesting Respondents who had merely been recommended by their respective Departmental Authorities could not be considered to be ‘eligible? for appointment by way of promotion or selection under the erstwhile OAS Class II Regulations, 1978, since the steps set out in the regulations mentioned below had not been completed prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class7 – preparation of a list of suitable candidates by the Selection8 – consultation with the Orissa Public ServiceRegulation 9 – recommendation of the Orissa Public Service Commission;10 – preparation and placement of final list before the State Government forthe contesting Respondents had not acquired an accrued or vested right of selection or promotion to OAS Class – II posts in accordance with the OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978, since their names had never been considered for selection or promotion beyond the stage contemplated under Regulation 6.7.In the present case the contesting Respondents had merely been recommended by the respective Departmental Authorities under Regulation 6. The recruitment process had not proceeded any further thereafter. There was no time¬frame prescribed for completion of the recruitment process under the erstwhile OAS Class – II Rules, 1978 or the OAS Class – II Regulations, 1978.7.15. In the meanwhile, the State restructured the Orissa Administrative Service cadre, and constituted the Orissa Revenue Service vide Resolutions dated 28.02.2009 and 25.05.2009.As a part of the re¬structuring exercise, the erstwhile OAS Class – II posts were abolished, and a corresponding new cadre of Group ‘B? posts in the newly constituted Orissa Revenue Service was created.7.16. The contesting Respondents have not challenged either the abolition of OAS Class – II posts, or the creation of the corresponding Orissa Revenue Service Group ‘B? posts.7.17. To the contrary, some of them have participated in the proceedings of the D.P.C. convened on 30.04.2013 for recruitment to the newly created Orissa Revenue Service Group ‘B? cadre.After being considered, 6 of the contesting Respondents were selected, while 1 was kept on the Waiting List.The State appointed the said Respondents to the Orissa Revenue Service Group ‘B? posts. However, only two out of the five contesting Respondents who were appointed, joined the posts.7.18. Subsequently, during the pendency of the W.P.s, another D.P.C. was convened to consider the promotion of employees working in the Orissa Revenue Services Group ‘B? posts to Orissa Administrative Service Group A (Junior Branch) posts.1 contesting Respondent was promoted to the OAS Group A (Junior Branch) cadre.7.19. The contesting Respondents cannot claim any lien over the abolished OAS Class – II posts, which were governed by the old OAS Class II Rules, 1978 and OAS Class II Regulations, 1978.7.The submission of the contesting Respondents that their case be considered at par with the candidates appointed by way of selection and promotion as against the vacancies for the years 2001 to 2005 is not tenable.The appointments of persons as against the vacancies for the years 2001 to 2005 were made vide two Notifications dated December 7, 2010, which were issued prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978.7.22. Finally, the High Court had relied upon the decision in Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors. 2012 (II) OLR 61. [W.P. (C) No. 19827/2009; Decided on 16.04.2012] to hold that promotions could be given under the repealed OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978. The S.L.P. against this judgment had been simply dismissed. TheCounsel for the contesting Respondents prayed for dismissal of the present Civil Appeals by submitting that the said decision had been affirmed by this Court vide Order datedis a well¬settled principle of law emerging from a catena of decisions of this Court, including Supreme Court Employees? Welfare Association v. Union of India & Anr. (1989) 1 SCC 187 (paras 22 and 23) and State of Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC 770 (paras 112 and 113), that the dismissal of a S.L.P. in limine simply implies that the case before this Court was not considered worthy of examination for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons, does not constitute any declaration of law or a binding precedent under Article 141 of the
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Coastal Marine Construction & Engineering Limited & Another Vs. The Shipping Corporation of India & Others | of tenders because it is the realm of contract and as such the decision more often are made collectively by experts. It is also been held by catena of judgments that the Government must have freedom of contract. A fair play is necessary for an administrative body functioning in administrative spare. The Courts have also to consider that the quashing of decision may impose heavy administrative burden on the administration. Even if some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 of the Constitution of India in furtherance of public interest and not merely on the making out of a legal point. [See Jagdish Mandal vs. State of Orissa, (2007) 14 Supreme Court Cases, 517 , (relied upon by the third Respondent), Air India Ltd. vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , Tata Cellular vs. Union of India, (1994) 6 SCC 651 , B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd., (2006) 11 SCC 548 , Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) 1 SCC 492 ]. 15. Having heard the learned counsel for the parties, we find that the only question which is required to be decided in this Petition as to whether the clause Nos. 6.1 and 6.5 permit the TPC/ first Respondent to take into consideration the experience of another company namely Fugro Survey (Middle East) Ltd. along with the experience of the third Respondent bidder company for the purposes of fulfilling the experience criteria.16. It is pertinent to mention here that from the minutes of the meeting of TPC, it reveals that the TPC had observed that the company Furgro (Middle East) Ltd. is unrelated company from the bidder third Respondent company. There is no material to accept the contention of the third Respondent that Furgro (Middle East) Ltd. is its Parent Company or the third Respondent is its Subsidiary.17. On a plain reading of clause Nos. 6.1 and 6.5 we find ourselves unable to agree with the claim of the Respondents that the experience of the Group Company can also be taken into consideration while considering the experience of bidder when the clauses are so clear requiring therein that the bidder independently should have experience. In this view of the matter, even though clause 5.1 provides that in the event of any dispute as regards interpretation of the clauses, the decision of the first Respondent shall be final and binding, the interpretation as has been done by the first Respondent leads to absurdity and provides for arbitrary exercise of powers.18. In our considered view the condition NO. 6.1 and 6.5 regarding eligibility criteria being fundamental condition of tender for being qualified for the purposes of experience if allowed to be interpreted as has been done then the said condition would become redundant. By putting the aforesaid clauses, the Respondent No. 1 having restricted the entry of the bidders to those who independently should have experience could not have allowed the other bidders to claim experience of technical collaborator/totally unrelated Group Companies. By doing so the first Respondent has violated the fundamental experience qualification condition and thereby acted in arbitrary manner vitiating the entire decision making process. As noted above, we also have not come across any document to show that the third Respondent bidder is Subsidiary of Fugro Survey (Middle East) Ltd. or that the said Company is Parent Company or Sister Company of the third Respondent bidder.19. In what way the Group Company or Subsidiary can be termed as parent or sister company of the third Respondent for claiming the experience said company i.e. Furgo Middle East Private Limited has also not been explained by first or the third Respondent in their reply affidavit. On the other hand, the reply affidavit filed by these Respondents is not touching to the main issue raised by the Petitioners. In reply, it has been stated by the first Respondent that the term independently does not bar any form of any association between a parent company or subsidiary. However it is not the case of the third Respondent that Fugro Middle East Pvt. Ltd company is its parent, sister or subsidiary company. It is also the case of the first Respondent that Appendix VII of the tender provides for guarantee to be given by the parent company. However, admittedly the guarantee in terms of Appendix VII has not been given by third Respondent as during the course of arguments, it has been stated by counsel for both the Respondents that the guarantee in the form of Appendix VII was not required to be furnished in the present case as the said clause is not applicable. We may also note that the third Respondent to support its association with Fugro (Middle East) Ltd. has submitted a document titled Memorandum of Understanding wherein the third Respondent has referred itself as the bidder and has referred Fugro (Middle East) Ltd as a Technical Collaborator and not that it is Parent Company.20. Keeping in view the aforesaid facts and the settled legal position as stated above, we are of the view that while accepting the third Respondents bid, the first Respondent has acted arbitrary and has violated the fundamental condition of the tender in respect of eligibility criteria. The first Respondent firstly restricted the number of bidders from participating in the tender process by putting the said eligibility criteria and thereafter arbitrarily accepted the bid of the third Respondent by relaxing the condition by interpreting it contrary to its spirit by taking into consideration the experience of altogether unrelated company, in the garb of the technical collaborator/ group company or the Subsidiary company. The use of the expression Subsidiary company or Group Company or Technical Collaborator of the third Respondent company for taking into consideration the experience of Fugro Survey Middle East Ltd. is merely an eye wash and the same is of no use in view of the condition regarding experience criteria as extracted above. | 1[ds]14. True it is, normally the Courts will not interfere in the decision of the tender evaluation committee consisting of experts unless it is malafide or wholly perverse. It is also a settled position of law that in the matters relating to tenders if the decision relating to award of contract is bonafide and is in public interest, the Courts will not in exercise of powers of judicial review interfere even if procedural aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide the contractual disputes. The evaluation of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters, the Court is concerned primarily as to whether there has been any infirmity in the decision making process. The Courts certainly examine whether the decision making process was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution. The Court will not sit as a Court of Appeal but merely reviews the manner in which the decision was made as it has no expertise to correct the administrative action. It is also well settled that the Court is not empowered to scrutinize the terms of the invitation of tenders because it is the realm of contract and as such the decision more often are made collectively by experts. It is also been held by catena of judgments that the Government must have freedom of contract. A fair play is necessary for an administrative body functioning in administrative spare. The Courts have also to consider that the quashing of decision may impose heavy administrative burden on the administration. Even if some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 of the Constitution of India in furtherance of public interest and not merely on the making out of a legal point. [See Jagdish Mandal vs. State of Orissa, (2007) 14 Supreme Court Cases, 517 , (relied upon by the third Respondent), Air India Ltd. vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , Tata Cellular vs. Union of India, (1994) 6 SCC 651 , B.S.N. JoshiSons Ltd. vs. Nair Coal Services Ltd., (2006) 11 SCC 548 , Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) 1 SCC 492 ].16. It is pertinent to mention here that from the minutes of the meeting of TPC, it reveals that the TPC had observed that the company Furgro (Middle East) Ltd. is unrelated company from the bidder third Respondent company. There is no material to accept the contention of the third Respondent that Furgro (Middle East) Ltd. is its Parent Company or the third Respondent is its Subsidiary.17. On a plain reading of clause Nos. 6.1 and 6.5 we find ourselves unable to agree with the claim of the Respondents that the experience of the Group Company can also be taken into consideration while considering the experience of bidder when the clauses are so clear requiring therein that the bidder independently should have experience. In this view of the matter, even though clause 5.1 provides that in the event of any dispute as regards interpretation of the clauses, the decision of the first Respondent shall be final and binding, the interpretation as has been done by the first Respondent leads to absurdity and provides for arbitrary exercise of powers.18. In our considered view the condition NO. 6.1 and 6.5 regarding eligibility criteria being fundamental condition of tender for being qualified for the purposes of experience if allowed to be interpreted as has been done then the said condition would become redundant. By putting the aforesaid clauses, the Respondent No. 1 having restricted the entry of the bidders to those who independently should have experience could not have allowed the other bidders to claim experience of technical collaborator/totally unrelated Group Companies. By doing so the first Respondent has violated the fundamental experience qualification condition and thereby acted in arbitrary manner vitiating the entire decision making process. As noted above, we also have not come across any document to show that the third Respondent bidder is Subsidiary of Fugro Survey (Middle East) Ltd. or that the said Company is Parent Company or Sister Company of the third Respondent bidder.19. In what way the Group Company or Subsidiary can be termed as parent or sister company of the third Respondent for claiming the experience said company i.e. Furgo Middle East Private Limited has also not been explained by first or the third Respondent in their reply affidavit. On the other hand, the reply affidavit filed by these Respondents is not touching to the main issue raised by the Petitioners. In reply, it has been stated by the first Respondent that the term independently does not bar any form of any association between a parent company or subsidiary. However it is not the case of the third Respondent that Fugro Middle East Pvt. Ltd company is its parent, sister or subsidiary company. It is also the case of the first Respondent that Appendix VII of the tender provides for guarantee to be given by the parent company. However, admittedly the guarantee in terms of Appendix VII has not been given by third Respondent as during the course of arguments, it has been stated by counsel for both the Respondents that the guarantee in the form of Appendix VII was not required to be furnished in the present case as the said clause is not applicable. We may also note that the third Respondent to support its association with Fugro (Middle East) Ltd. has submitted a document titled Memorandum of Understanding wherein the third Respondent has referred itself as the bidder and has referred Fugro (Middle East) Ltd as a Technical Collaborator and not that it is Parent Company.20. Keeping in view the aforesaid facts and the settled legal position as stated above, we are of the view that while accepting the third Respondents bid, the first Respondent has acted arbitrary and has violated the fundamental condition of the tender in respect of eligibility criteria. The first Respondent firstly restricted the number of bidders from participating in the tender process by putting the said eligibility criteria and thereafter arbitrarily accepted the bid of the third Respondent by relaxing the condition by interpreting it contrary to its spirit by taking into consideration the experience of altogether unrelated company, in the garb of the technical collaborator/ group company or the Subsidiary company. The use of the expression Subsidiary company or Group Company or Technical Collaborator of the third Respondent company for taking into consideration the experience of Fugro Survey Middle East Ltd. is merely an eye wash and the same is of no use in view of the condition regarding experience criteria as extracted above. | 1 | 3,634 | 1,247 | ### Instruction:
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of tenders because it is the realm of contract and as such the decision more often are made collectively by experts. It is also been held by catena of judgments that the Government must have freedom of contract. A fair play is necessary for an administrative body functioning in administrative spare. The Courts have also to consider that the quashing of decision may impose heavy administrative burden on the administration. Even if some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 of the Constitution of India in furtherance of public interest and not merely on the making out of a legal point. [See Jagdish Mandal vs. State of Orissa, (2007) 14 Supreme Court Cases, 517 , (relied upon by the third Respondent), Air India Ltd. vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , Tata Cellular vs. Union of India, (1994) 6 SCC 651 , B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd., (2006) 11 SCC 548 , Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) 1 SCC 492 ]. 15. Having heard the learned counsel for the parties, we find that the only question which is required to be decided in this Petition as to whether the clause Nos. 6.1 and 6.5 permit the TPC/ first Respondent to take into consideration the experience of another company namely Fugro Survey (Middle East) Ltd. along with the experience of the third Respondent bidder company for the purposes of fulfilling the experience criteria.16. It is pertinent to mention here that from the minutes of the meeting of TPC, it reveals that the TPC had observed that the company Furgro (Middle East) Ltd. is unrelated company from the bidder third Respondent company. There is no material to accept the contention of the third Respondent that Furgro (Middle East) Ltd. is its Parent Company or the third Respondent is its Subsidiary.17. On a plain reading of clause Nos. 6.1 and 6.5 we find ourselves unable to agree with the claim of the Respondents that the experience of the Group Company can also be taken into consideration while considering the experience of bidder when the clauses are so clear requiring therein that the bidder independently should have experience. In this view of the matter, even though clause 5.1 provides that in the event of any dispute as regards interpretation of the clauses, the decision of the first Respondent shall be final and binding, the interpretation as has been done by the first Respondent leads to absurdity and provides for arbitrary exercise of powers.18. In our considered view the condition NO. 6.1 and 6.5 regarding eligibility criteria being fundamental condition of tender for being qualified for the purposes of experience if allowed to be interpreted as has been done then the said condition would become redundant. By putting the aforesaid clauses, the Respondent No. 1 having restricted the entry of the bidders to those who independently should have experience could not have allowed the other bidders to claim experience of technical collaborator/totally unrelated Group Companies. By doing so the first Respondent has violated the fundamental experience qualification condition and thereby acted in arbitrary manner vitiating the entire decision making process. As noted above, we also have not come across any document to show that the third Respondent bidder is Subsidiary of Fugro Survey (Middle East) Ltd. or that the said Company is Parent Company or Sister Company of the third Respondent bidder.19. In what way the Group Company or Subsidiary can be termed as parent or sister company of the third Respondent for claiming the experience said company i.e. Furgo Middle East Private Limited has also not been explained by first or the third Respondent in their reply affidavit. On the other hand, the reply affidavit filed by these Respondents is not touching to the main issue raised by the Petitioners. In reply, it has been stated by the first Respondent that the term independently does not bar any form of any association between a parent company or subsidiary. However it is not the case of the third Respondent that Fugro Middle East Pvt. Ltd company is its parent, sister or subsidiary company. It is also the case of the first Respondent that Appendix VII of the tender provides for guarantee to be given by the parent company. However, admittedly the guarantee in terms of Appendix VII has not been given by third Respondent as during the course of arguments, it has been stated by counsel for both the Respondents that the guarantee in the form of Appendix VII was not required to be furnished in the present case as the said clause is not applicable. We may also note that the third Respondent to support its association with Fugro (Middle East) Ltd. has submitted a document titled Memorandum of Understanding wherein the third Respondent has referred itself as the bidder and has referred Fugro (Middle East) Ltd as a Technical Collaborator and not that it is Parent Company.20. Keeping in view the aforesaid facts and the settled legal position as stated above, we are of the view that while accepting the third Respondents bid, the first Respondent has acted arbitrary and has violated the fundamental condition of the tender in respect of eligibility criteria. The first Respondent firstly restricted the number of bidders from participating in the tender process by putting the said eligibility criteria and thereafter arbitrarily accepted the bid of the third Respondent by relaxing the condition by interpreting it contrary to its spirit by taking into consideration the experience of altogether unrelated company, in the garb of the technical collaborator/ group company or the Subsidiary company. The use of the expression Subsidiary company or Group Company or Technical Collaborator of the third Respondent company for taking into consideration the experience of Fugro Survey Middle East Ltd. is merely an eye wash and the same is of no use in view of the condition regarding experience criteria as extracted above.
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certainly examine whether the decision making process was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution. The Court will not sit as a Court of Appeal but merely reviews the manner in which the decision was made as it has no expertise to correct the administrative action. It is also well settled that the Court is not empowered to scrutinize the terms of the invitation of tenders because it is the realm of contract and as such the decision more often are made collectively by experts. It is also been held by catena of judgments that the Government must have freedom of contract. A fair play is necessary for an administrative body functioning in administrative spare. The Courts have also to consider that the quashing of decision may impose heavy administrative burden on the administration. Even if some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 of the Constitution of India in furtherance of public interest and not merely on the making out of a legal point. [See Jagdish Mandal vs. State of Orissa, (2007) 14 Supreme Court Cases, 517 , (relied upon by the third Respondent), Air India Ltd. vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , Tata Cellular vs. Union of India, (1994) 6 SCC 651 , B.S.N. JoshiSons Ltd. vs. Nair Coal Services Ltd., (2006) 11 SCC 548 , Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) 1 SCC 492 ].16. It is pertinent to mention here that from the minutes of the meeting of TPC, it reveals that the TPC had observed that the company Furgro (Middle East) Ltd. is unrelated company from the bidder third Respondent company. There is no material to accept the contention of the third Respondent that Furgro (Middle East) Ltd. is its Parent Company or the third Respondent is its Subsidiary.17. On a plain reading of clause Nos. 6.1 and 6.5 we find ourselves unable to agree with the claim of the Respondents that the experience of the Group Company can also be taken into consideration while considering the experience of bidder when the clauses are so clear requiring therein that the bidder independently should have experience. In this view of the matter, even though clause 5.1 provides that in the event of any dispute as regards interpretation of the clauses, the decision of the first Respondent shall be final and binding, the interpretation as has been done by the first Respondent leads to absurdity and provides for arbitrary exercise of powers.18. In our considered view the condition NO. 6.1 and 6.5 regarding eligibility criteria being fundamental condition of tender for being qualified for the purposes of experience if allowed to be interpreted as has been done then the said condition would become redundant. By putting the aforesaid clauses, the Respondent No. 1 having restricted the entry of the bidders to those who independently should have experience could not have allowed the other bidders to claim experience of technical collaborator/totally unrelated Group Companies. By doing so the first Respondent has violated the fundamental experience qualification condition and thereby acted in arbitrary manner vitiating the entire decision making process. As noted above, we also have not come across any document to show that the third Respondent bidder is Subsidiary of Fugro Survey (Middle East) Ltd. or that the said Company is Parent Company or Sister Company of the third Respondent bidder.19. In what way the Group Company or Subsidiary can be termed as parent or sister company of the third Respondent for claiming the experience said company i.e. Furgo Middle East Private Limited has also not been explained by first or the third Respondent in their reply affidavit. On the other hand, the reply affidavit filed by these Respondents is not touching to the main issue raised by the Petitioners. In reply, it has been stated by the first Respondent that the term independently does not bar any form of any association between a parent company or subsidiary. However it is not the case of the third Respondent that Fugro Middle East Pvt. Ltd company is its parent, sister or subsidiary company. It is also the case of the first Respondent that Appendix VII of the tender provides for guarantee to be given by the parent company. However, admittedly the guarantee in terms of Appendix VII has not been given by third Respondent as during the course of arguments, it has been stated by counsel for both the Respondents that the guarantee in the form of Appendix VII was not required to be furnished in the present case as the said clause is not applicable. We may also note that the third Respondent to support its association with Fugro (Middle East) Ltd. has submitted a document titled Memorandum of Understanding wherein the third Respondent has referred itself as the bidder and has referred Fugro (Middle East) Ltd as a Technical Collaborator and not that it is Parent Company.20. Keeping in view the aforesaid facts and the settled legal position as stated above, we are of the view that while accepting the third Respondents bid, the first Respondent has acted arbitrary and has violated the fundamental condition of the tender in respect of eligibility criteria. The first Respondent firstly restricted the number of bidders from participating in the tender process by putting the said eligibility criteria and thereafter arbitrarily accepted the bid of the third Respondent by relaxing the condition by interpreting it contrary to its spirit by taking into consideration the experience of altogether unrelated company, in the garb of the technical collaborator/ group company or the Subsidiary company. The use of the expression Subsidiary company or Group Company or Technical Collaborator of the third Respondent company for taking into consideration the experience of Fugro Survey Middle East Ltd. is merely an eye wash and the same is of no use in view of the condition regarding experience criteria as extracted above.
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Rami Manprasad Gordhandas & Others Vs. Gopichand Shersing Gupta & Others | not confer on the High Court any power of revision. Shri shroff rightly conceding that he was bound by this decision relied on it for the submission that we should send the case back to the High Court for considering whether there were cogent grounds for interference under Section 115, Code of Civil Procedure. In the reported case in a suit for ejectment and arrears of rent instituted under the Act with respect to certain premises in Ahmedabad, the trial Court had disallowed the claim for ejectment but had inter alia granted a decree for arrears of rent. That decree was confirmed on appeal on February 25, 1963 under Section 29. The aggrieved tenant moved the High Court under Section 115, C. P. C for revision of the appellate decree. During the pendency of that revision Section 29 (2) of the Act was amended by Gujarat Act 18 of 1965. The new sub-section (2), while retaining the prohibition against further appeal, expressly conferred power of revision on the High Court. The new sub-section (2) provides :"No further appeal shall lie against any decision in appeal under sub-section (1), but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."The High Court, when considering the revision originally preferred under Section 115, Code of Civil Procedure assumed that the amendment governed pending cases as well, and, therefore, empowered it to treat the pending revision also to be governed by Section 29 (2). On this assumption the High Court exercised the wider power of revision conferred on it by the amended Section 29 (2) and varied the impugned judgment on that basis. In this Court the view taken by the High Court was successfully challenged. This Court observed that the amended Section 29 (2) was not retrospective in its operation, adding that it did not merely explain the scope of the existing revisional power of the High Court as contended in support of the order appealed against. Allowing the appeal this Court set aside the order of the High Court and remanded the case back to it for disposing of the revision on the footing that it was governed by Section 115 of the Code of Civil Procedure under which it had been filed.8. Before us also Shri Shroff contended that although no provision of law was mentioned in the memorandum of revision presented by the appellant in the High Court, it must be assumed to have been filed under Section 115, C. P. C. under which it could have been filed, and, therefore, the case should be sent back to the High Court for disposing of the revision on the footing that it was governed by Section 115, C. P. C. Shri Shroff did not, as indeed, he could not, in face of the language of unamended Section 29 (2) which governs the present case contend that any revisional power vested in the High Court under this sub-section.9. We are unable to accept this submission. In the reported case the revision expressly purported to have been filed under Section 115, C. P. C. Such is not the case before us. No request was made to the High Court to treat the revision under Section 115, C. P. C. and the only provision of law under which the revision was understood both by the plaintiff-appellant and the High Court to have been filed was Section 29 (2). No doubt the lable under which a revision is filed, if erroneous, does not estop the party from paying that the revision may be dealt with under the proper law applicable to the case and such a prayer is open to consideration by the Court. But such a prayer has, as a rule, to be made in the Court which is requested to exercise its judicial discretion for that purpose. Section 115, C. P. C., it is plain, vests the High Court with a discretionary power to be exercised judicially to interfere only when the cause of justice demands it. The High Court is not bound to interfere merely because the conditions in clause (a), (b) or (c) of Section 115 are satisfied. The appellant never requested the High Court to exercise its power under Section 115 of the Code and the High Court also did not consider the question of exercising its discretionary power thereunder. In this Court also no ground seems to have been taken in the special leave application complaining that the High Court was in error in failing to exercise the power conferred on it under Section 115, C. P. C.We are, therefore, unable to find any cogent ground for permitting the appellant now to make out this new case in this Court with the result that the order of the High Court dismissing the appeal must be considered to be unexceptionable though we confine our decision only to the ground that no revision was competent in that Court under Section 29 (2) of the Act.10. On the view that we have taken it is unnecessary to refer to the decision of this Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, 7 Guj LR 1061 = (AIR 1967 SC 1078 ) dealing with the scope of the various sub-sections of Section 12 of the Act. It is equally unnecessary to refer to the unreported decision of this Court in Raghunath Ravji Dandekar v. Anant Narayan Apte, C. A. No. 387 of 1964, D/- 5-4-1966 (SC) also dealing with the scope of Section 12 (2) of the Act, though it may be pointed out that this Court disallowed the respondent in the unreported case to raise for the first time in this Court the point that the High Court had no jurisdiction to interfere in revision under Section 115, C. P. C. there being no question of jurisdiction involved. | 0[ds]4. Shri S. T. Desai has raised a preliminary objections to the competence of the appeal. According to him, on the date of the appellate judgment of the City Civil Court, the said judgment was neither open to further appeal nor was there any provision in the Act under which the High Court could be approached for revising the said judgment, with the result that the revision preferred by thehad in any event to be dismissed as incompetent.The ground on which the High Court dismissed the revision is, therefore, immaterial because under the law it is not open to theto urge that the High Court could or should have granted any relief on an incompetent revision. In our view, this point is relevant more to the merits than to the competency of the appeal.n (2) of this section plainly does not provide for revision to the High Court. It merely prohibits further appeal from the decision given on appeal under(1) of Section 29.It is thus clear that the High Court was under some mistaken impression when it observed that the revision before it was under Section 29 (2) of the Act. Right of appeal and revision, it is nowas a creature of statute and there can be no inherent right either of appeal or of revision against a judgment or order of a Court.7.Shri Desai has referred us to Keshavalal Jethalal Shah v. Mohanlal Bhagwandas, (1968) 3 SCR 623 = (AIR 1968 SC 1336 ) for the view that Section 29 (2) in its unamended from did not confer on the High Court any power of revision. Shri shroff rightly conceding that he was bound by this decision relied on it for the submission that we should send the case back to the High Court for considering whether there were cogent grounds for interference under Section 115, Code of Civil Procedure.We are unable to accept this submission. In the reported case the revision expressly purported to have been filed under Section 115, C. P. C. Such is not the case before us. No request was made to the High Court to treat the revision under Section 115, C. P. C. and the only provision of law under which the revision was understood both by theand the High Court to have been filed was Section 29 (2). No doubt the lable under which a revision is filed, if erroneous, does not estop the party from paying that the revision may be dealt with under the proper law applicable to the case and such a prayer is open to consideration by the Court. But such a prayer has, as a rule, to be made in the Court which is requested to exercise its judicial discretion for that purpose. Section 115, C. P. C., it is plain, vests the High Court with a discretionary power to be exercised judicially to interfere only when the cause of justice demands it. The High Court is not bound to interfere merely because the conditions in clause (a), (b) or (c) of Section 115 are satisfied. The appellant never requested the High Court to exercise its power under Section 115 of the Code and the High Court also did not consider the question of exercising its discretionary power thereunder. In this Court also no ground seems to have been taken in the special leave application complaining that the High Court was in error in failing to exercise the power conferred on it under Section 115, C. P. C.We are, therefore, unable to find any cogent ground for permitting the appellant now to make out this new case in this Court with the result that the order of the High Court dismissing the appeal must be considered to be unexceptionable though we confine our decision only to the ground that no revision was competent in that Court under Section 29 (2) of the Act.10. On the view that we have taken it is unnecessary to refer to the decision of this Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, 7 Guj LR 1061 = (AIR 1967 SC 1078 ) dealing with the scope of the variousof Section 12 of the Act. It is equally unnecessary to refer to the unreported decision of this Court in Raghunath Ravji Dandekar v. Anant Narayan Apte, C. A. No. 387 of 1964, D/(SC) also dealing with the scope of Section 12 (2) of the Act, though it may be pointed out that this Court disallowed the respondent in the unreported case to raise for the first time in this Court the point that the High Court had no jurisdiction to interfere in revision under Section 115, C. P. C. there being no question of jurisdiction involved. | 0 | 2,278 | 865 | ### Instruction:
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not confer on the High Court any power of revision. Shri shroff rightly conceding that he was bound by this decision relied on it for the submission that we should send the case back to the High Court for considering whether there were cogent grounds for interference under Section 115, Code of Civil Procedure. In the reported case in a suit for ejectment and arrears of rent instituted under the Act with respect to certain premises in Ahmedabad, the trial Court had disallowed the claim for ejectment but had inter alia granted a decree for arrears of rent. That decree was confirmed on appeal on February 25, 1963 under Section 29. The aggrieved tenant moved the High Court under Section 115, C. P. C for revision of the appellate decree. During the pendency of that revision Section 29 (2) of the Act was amended by Gujarat Act 18 of 1965. The new sub-section (2), while retaining the prohibition against further appeal, expressly conferred power of revision on the High Court. The new sub-section (2) provides :"No further appeal shall lie against any decision in appeal under sub-section (1), but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."The High Court, when considering the revision originally preferred under Section 115, Code of Civil Procedure assumed that the amendment governed pending cases as well, and, therefore, empowered it to treat the pending revision also to be governed by Section 29 (2). On this assumption the High Court exercised the wider power of revision conferred on it by the amended Section 29 (2) and varied the impugned judgment on that basis. In this Court the view taken by the High Court was successfully challenged. This Court observed that the amended Section 29 (2) was not retrospective in its operation, adding that it did not merely explain the scope of the existing revisional power of the High Court as contended in support of the order appealed against. Allowing the appeal this Court set aside the order of the High Court and remanded the case back to it for disposing of the revision on the footing that it was governed by Section 115 of the Code of Civil Procedure under which it had been filed.8. Before us also Shri Shroff contended that although no provision of law was mentioned in the memorandum of revision presented by the appellant in the High Court, it must be assumed to have been filed under Section 115, C. P. C. under which it could have been filed, and, therefore, the case should be sent back to the High Court for disposing of the revision on the footing that it was governed by Section 115, C. P. C. Shri Shroff did not, as indeed, he could not, in face of the language of unamended Section 29 (2) which governs the present case contend that any revisional power vested in the High Court under this sub-section.9. We are unable to accept this submission. In the reported case the revision expressly purported to have been filed under Section 115, C. P. C. Such is not the case before us. No request was made to the High Court to treat the revision under Section 115, C. P. C. and the only provision of law under which the revision was understood both by the plaintiff-appellant and the High Court to have been filed was Section 29 (2). No doubt the lable under which a revision is filed, if erroneous, does not estop the party from paying that the revision may be dealt with under the proper law applicable to the case and such a prayer is open to consideration by the Court. But such a prayer has, as a rule, to be made in the Court which is requested to exercise its judicial discretion for that purpose. Section 115, C. P. C., it is plain, vests the High Court with a discretionary power to be exercised judicially to interfere only when the cause of justice demands it. The High Court is not bound to interfere merely because the conditions in clause (a), (b) or (c) of Section 115 are satisfied. The appellant never requested the High Court to exercise its power under Section 115 of the Code and the High Court also did not consider the question of exercising its discretionary power thereunder. In this Court also no ground seems to have been taken in the special leave application complaining that the High Court was in error in failing to exercise the power conferred on it under Section 115, C. P. C.We are, therefore, unable to find any cogent ground for permitting the appellant now to make out this new case in this Court with the result that the order of the High Court dismissing the appeal must be considered to be unexceptionable though we confine our decision only to the ground that no revision was competent in that Court under Section 29 (2) of the Act.10. On the view that we have taken it is unnecessary to refer to the decision of this Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, 7 Guj LR 1061 = (AIR 1967 SC 1078 ) dealing with the scope of the various sub-sections of Section 12 of the Act. It is equally unnecessary to refer to the unreported decision of this Court in Raghunath Ravji Dandekar v. Anant Narayan Apte, C. A. No. 387 of 1964, D/- 5-4-1966 (SC) also dealing with the scope of Section 12 (2) of the Act, though it may be pointed out that this Court disallowed the respondent in the unreported case to raise for the first time in this Court the point that the High Court had no jurisdiction to interfere in revision under Section 115, C. P. C. there being no question of jurisdiction involved.
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### Explanation:
4. Shri S. T. Desai has raised a preliminary objections to the competence of the appeal. According to him, on the date of the appellate judgment of the City Civil Court, the said judgment was neither open to further appeal nor was there any provision in the Act under which the High Court could be approached for revising the said judgment, with the result that the revision preferred by thehad in any event to be dismissed as incompetent.The ground on which the High Court dismissed the revision is, therefore, immaterial because under the law it is not open to theto urge that the High Court could or should have granted any relief on an incompetent revision. In our view, this point is relevant more to the merits than to the competency of the appeal.n (2) of this section plainly does not provide for revision to the High Court. It merely prohibits further appeal from the decision given on appeal under(1) of Section 29.It is thus clear that the High Court was under some mistaken impression when it observed that the revision before it was under Section 29 (2) of the Act. Right of appeal and revision, it is nowas a creature of statute and there can be no inherent right either of appeal or of revision against a judgment or order of a Court.7.Shri Desai has referred us to Keshavalal Jethalal Shah v. Mohanlal Bhagwandas, (1968) 3 SCR 623 = (AIR 1968 SC 1336 ) for the view that Section 29 (2) in its unamended from did not confer on the High Court any power of revision. Shri shroff rightly conceding that he was bound by this decision relied on it for the submission that we should send the case back to the High Court for considering whether there were cogent grounds for interference under Section 115, Code of Civil Procedure.We are unable to accept this submission. In the reported case the revision expressly purported to have been filed under Section 115, C. P. C. Such is not the case before us. No request was made to the High Court to treat the revision under Section 115, C. P. C. and the only provision of law under which the revision was understood both by theand the High Court to have been filed was Section 29 (2). No doubt the lable under which a revision is filed, if erroneous, does not estop the party from paying that the revision may be dealt with under the proper law applicable to the case and such a prayer is open to consideration by the Court. But such a prayer has, as a rule, to be made in the Court which is requested to exercise its judicial discretion for that purpose. Section 115, C. P. C., it is plain, vests the High Court with a discretionary power to be exercised judicially to interfere only when the cause of justice demands it. The High Court is not bound to interfere merely because the conditions in clause (a), (b) or (c) of Section 115 are satisfied. The appellant never requested the High Court to exercise its power under Section 115 of the Code and the High Court also did not consider the question of exercising its discretionary power thereunder. In this Court also no ground seems to have been taken in the special leave application complaining that the High Court was in error in failing to exercise the power conferred on it under Section 115, C. P. C.We are, therefore, unable to find any cogent ground for permitting the appellant now to make out this new case in this Court with the result that the order of the High Court dismissing the appeal must be considered to be unexceptionable though we confine our decision only to the ground that no revision was competent in that Court under Section 29 (2) of the Act.10. On the view that we have taken it is unnecessary to refer to the decision of this Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, 7 Guj LR 1061 = (AIR 1967 SC 1078 ) dealing with the scope of the variousof Section 12 of the Act. It is equally unnecessary to refer to the unreported decision of this Court in Raghunath Ravji Dandekar v. Anant Narayan Apte, C. A. No. 387 of 1964, D/(SC) also dealing with the scope of Section 12 (2) of the Act, though it may be pointed out that this Court disallowed the respondent in the unreported case to raise for the first time in this Court the point that the High Court had no jurisdiction to interfere in revision under Section 115, C. P. C. there being no question of jurisdiction involved.
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