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Sashi Bhushan Vs. Prof. Balraj Madhok & Ors | This is what the Court observed."The true legal position in this matter is no longer in doubt. Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by cl. (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power the Tribunal has to bear in mind certain important considerations. Section 88 (1) (a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies, and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he reliese. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose which S. 88 (1) (a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void. We do not propose of lay down any hard and fast rule in this matter; Indeed to attempt to lay down such a rule would be inexpendient and unreasonable." 15. The above observations succinctly bring out the circumstances under which an inspection can be ordered. The overriding test laid down there is the interest of justice. Facts naturally differ from case to case. Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite they must be supported by material facts and prayer made must be a bona fide one. If these conditions as satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society. 16. The last decision relied on by the appellants is Jitendra Bahadur Singh v. Krishna Behari (1970) 1 SCR 852 = (AIR 1970 SC 276 ). To this decision one of us was a party. Therein an elector (1st respondent in that appeal) challenged the election of the appellant to the Lok Sabha. He alleged inter alia in the election petition that there were improper rejection and improper reception of votes. In the Schedule to the petition, he gave some figures of votes improperly rejected as well as accepted. In the verification to the election petition, he stated that the concerned allegations were made on the basis of information received from his workers and counting agents. It was, however, not stated who those persons were and what was the basis of their information. No written objection was filed during the counting either to the acceptance or to the rejection of any vote. Nor was any application made for recounting. Before the trial of the election petition, the election petitioner filed an application to inspect the ballot papers. In the affidavit filed in support of the petition, the election petitioner claimed to have been present on one of the days when counting went on and thus came to know about the improper acceptance and rejection of ballot papers. This was not a claim put forward in the election petition. The High Court allowed the inspection and permitted the scrutiny solely on the basis of the allegations in the election petition and the affidavit filed by the petitioner. This Court reversing the decision held that on the facts established, the High Court was not justified in allowing the inspection of the ballot papers. This Court came to the conclusion that relevant allegations were vague and indefinite; they were not supported by material facts and there was no basis for coming to the conclusion that inspection of the ballot papers was necessary for doing justice between the parties. 17. At the hearing of the appeals we enquired with the Counsel for the appellants whether the allegations regarding the chemical treatment of the ballot papers can be proved in any other manner than by inspecting the ballot papers. We got no satisfactory reply to our query. In the very nature of things the allegations in question can be proved of disproved only by inspecting the ballot papers. 18. The next question is whether it is necessary to inspect all the ballot papers as has been ordered by the trial Judge. | 0[ds]5. We are free to admit that we are unable to comprehend the theories propounded by the election petitioners. But we are conscious of our limitations. The march of science in recent years has shown that what was thought to be impossible just a few years back has become an easy possibility now. What we would have thought as wild imaginations some years back are now proved to be realities. Hence we are unable to reject the allegations of the election petitioners without scrutiny. We shall accept nothing and reject nothing except on satisfactory proof. We are approaching the allegations made in the election petitions in that spirit6. The learned trial judge did not hold that the allegations made by the election petitioners were not bona fide allegations. We see no reason to come to a contrary conclusions. He took the view that those allegations were of serious character and the material facts stated in support of those allegations were such as to call for investigation into the truth of those allegations. We are of the same opinion. The allegation that our electoral process has been fouled is a very serious allegation. That allegation is a challenge to the integrity and impartiality of the Election Commission. Those allegations if believed are sure to undermine the confidence of our people in our democratic institutions. Herein we are not merely concerned about the validity of elections in two constituencies. They are no doubt important but in the context of things their importance pales into insignificance. What is more important is the survival of the very democratic institutions on which our way of life dependsIf that is so, it is public interest that the falsity of that propaganda should be exposed. The confidence in our electoral machinery should not be allowed to be corroded by false propaganda. It is of utmost importance that our electorate should have full confidence in the impartiality of the Election Commission. Even the very best institutions can be maligned.In all countries, at all times, there are gullible persons. The effectiveness of an institution like the Election Commission depends on public confidence. For building up public confidence, public must be given the opportunity to know the truth. Any attempt to obstruct an enquiry into the allegations made may give an impression that there might be some truth in the allegations made8. From the records we gather that the allegations with which we are concerned are being made in several places in this country with some persistency. It is not unlikely that the section of our people, rightly or wrongly, have persuaded themselves to believe in those allegations. Such a situation should not be allowed to remain. The strength of a democratic society depends on the knowledge of its ordinary citizens about the affairs of the institutions created to safeguard their rights. It is dangerous to allow them to feed themselves with rumoursAssuming that the persons concerned did not inform the Assistant Returning Officer of what they had observed, it does not estop to Election petitioners from taking the pleas in question in the election petitions though undoubtedly it is a circumstance to be considered on the question of the value to be attached to the allegations made regarding the observations said to have been made at the time of the counting. Assuming that the conclusion reached by the election petitioners was the result of not merely observing certain facts at the time of the counting but on the basis of various circumstances, some of which came to their notice before the election, some at the time of the counting and some after the counting, that by itself is not sufficient to brush aside the allegations11. It is true that merely because someone makes bold and comes out with a desperate allegation, that by itself should not be a ground to attach value to the allegation made. But at the same time serious allegations cannot be dismissed summarily merely because they do not look probable. Prudence requires a cauctious approach in these matters. In all these matters, the courts aim should be to render complete justice between the parties. Further, if the allegations made raise issues of public importance, greater care and circumspection is necessary12. These cases have peculiar features of their own. No such case had come up for decision earlier. Hence decided cases can give little assistance to us. In a matter like allowing inspection of ballot papers, no rigid rules have been laid down, nor can be laid down. Much depends on the facts of each case. The primary aim of the courts is to render complete justice between the parties. Subject to thatoverridingconsideration, courts have laid down the circumstances that should weigh in granting or refusing inspection. Having said that much let us now examine the cases read to us on behalf of the appellants15. The above observations succinctly bring out the circumstances under which an inspection can be ordered. Theoverridingtest laid down there is the interest of justice. Facts naturally differ from case to case. Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite they must be supported by material facts and prayer made must be a bona fide one. If these conditions as satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society17. At the hearing of the appeals we enquired with the Counsel for the appellants whether the allegations regarding the chemical treatment of the ballot papers can be proved in any other manner than by inspecting the ballot papers. We got no satisfactory reply to our query. In the very nature of things the allegations in question can be proved of disproved only by inspecting the ballot papers | 0 | 3,470 | 1,109 | ### 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:
This is what the Court observed."The true legal position in this matter is no longer in doubt. Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by cl. (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power the Tribunal has to bear in mind certain important considerations. Section 88 (1) (a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies, and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he reliese. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose which S. 88 (1) (a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void. We do not propose of lay down any hard and fast rule in this matter; Indeed to attempt to lay down such a rule would be inexpendient and unreasonable." 15. The above observations succinctly bring out the circumstances under which an inspection can be ordered. The overriding test laid down there is the interest of justice. Facts naturally differ from case to case. Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite they must be supported by material facts and prayer made must be a bona fide one. If these conditions as satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society. 16. The last decision relied on by the appellants is Jitendra Bahadur Singh v. Krishna Behari (1970) 1 SCR 852 = (AIR 1970 SC 276 ). To this decision one of us was a party. Therein an elector (1st respondent in that appeal) challenged the election of the appellant to the Lok Sabha. He alleged inter alia in the election petition that there were improper rejection and improper reception of votes. In the Schedule to the petition, he gave some figures of votes improperly rejected as well as accepted. In the verification to the election petition, he stated that the concerned allegations were made on the basis of information received from his workers and counting agents. It was, however, not stated who those persons were and what was the basis of their information. No written objection was filed during the counting either to the acceptance or to the rejection of any vote. Nor was any application made for recounting. Before the trial of the election petition, the election petitioner filed an application to inspect the ballot papers. In the affidavit filed in support of the petition, the election petitioner claimed to have been present on one of the days when counting went on and thus came to know about the improper acceptance and rejection of ballot papers. This was not a claim put forward in the election petition. The High Court allowed the inspection and permitted the scrutiny solely on the basis of the allegations in the election petition and the affidavit filed by the petitioner. This Court reversing the decision held that on the facts established, the High Court was not justified in allowing the inspection of the ballot papers. This Court came to the conclusion that relevant allegations were vague and indefinite; they were not supported by material facts and there was no basis for coming to the conclusion that inspection of the ballot papers was necessary for doing justice between the parties. 17. At the hearing of the appeals we enquired with the Counsel for the appellants whether the allegations regarding the chemical treatment of the ballot papers can be proved in any other manner than by inspecting the ballot papers. We got no satisfactory reply to our query. In the very nature of things the allegations in question can be proved of disproved only by inspecting the ballot papers. 18. The next question is whether it is necessary to inspect all the ballot papers as has been ordered by the trial Judge.
### Response:
0
### Explanation:
recent years has shown that what was thought to be impossible just a few years back has become an easy possibility now. What we would have thought as wild imaginations some years back are now proved to be realities. Hence we are unable to reject the allegations of the election petitioners without scrutiny. We shall accept nothing and reject nothing except on satisfactory proof. We are approaching the allegations made in the election petitions in that spirit6. The learned trial judge did not hold that the allegations made by the election petitioners were not bona fide allegations. We see no reason to come to a contrary conclusions. He took the view that those allegations were of serious character and the material facts stated in support of those allegations were such as to call for investigation into the truth of those allegations. We are of the same opinion. The allegation that our electoral process has been fouled is a very serious allegation. That allegation is a challenge to the integrity and impartiality of the Election Commission. Those allegations if believed are sure to undermine the confidence of our people in our democratic institutions. Herein we are not merely concerned about the validity of elections in two constituencies. They are no doubt important but in the context of things their importance pales into insignificance. What is more important is the survival of the very democratic institutions on which our way of life dependsIf that is so, it is public interest that the falsity of that propaganda should be exposed. The confidence in our electoral machinery should not be allowed to be corroded by false propaganda. It is of utmost importance that our electorate should have full confidence in the impartiality of the Election Commission. Even the very best institutions can be maligned.In all countries, at all times, there are gullible persons. The effectiveness of an institution like the Election Commission depends on public confidence. For building up public confidence, public must be given the opportunity to know the truth. Any attempt to obstruct an enquiry into the allegations made may give an impression that there might be some truth in the allegations made8. From the records we gather that the allegations with which we are concerned are being made in several places in this country with some persistency. It is not unlikely that the section of our people, rightly or wrongly, have persuaded themselves to believe in those allegations. Such a situation should not be allowed to remain. The strength of a democratic society depends on the knowledge of its ordinary citizens about the affairs of the institutions created to safeguard their rights. It is dangerous to allow them to feed themselves with rumoursAssuming that the persons concerned did not inform the Assistant Returning Officer of what they had observed, it does not estop to Election petitioners from taking the pleas in question in the election petitions though undoubtedly it is a circumstance to be considered on the question of the value to be attached to the allegations made regarding the observations said to have been made at the time of the counting. Assuming that the conclusion reached by the election petitioners was the result of not merely observing certain facts at the time of the counting but on the basis of various circumstances, some of which came to their notice before the election, some at the time of the counting and some after the counting, that by itself is not sufficient to brush aside the allegations11. It is true that merely because someone makes bold and comes out with a desperate allegation, that by itself should not be a ground to attach value to the allegation made. But at the same time serious allegations cannot be dismissed summarily merely because they do not look probable. Prudence requires a cauctious approach in these matters. In all these matters, the courts aim should be to render complete justice between the parties. Further, if the allegations made raise issues of public importance, greater care and circumspection is necessary12. These cases have peculiar features of their own. No such case had come up for decision earlier. Hence decided cases can give little assistance to us. In a matter like allowing inspection of ballot papers, no rigid rules have been laid down, nor can be laid down. Much depends on the facts of each case. The primary aim of the courts is to render complete justice between the parties. Subject to thatoverridingconsideration, courts have laid down the circumstances that should weigh in granting or refusing inspection. Having said that much let us now examine the cases read to us on behalf of the appellants15. The above observations succinctly bring out the circumstances under which an inspection can be ordered. Theoverridingtest laid down there is the interest of justice. Facts naturally differ from case to case. Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite they must be supported by material facts and prayer made must be a bona fide one. If these conditions as satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society17. At the hearing of the appeals we enquired with the Counsel for the appellants whether the allegations regarding the chemical treatment of the ballot papers can be proved in any other manner than by inspecting the ballot papers. We got no satisfactory reply to our query. In the very nature of things the allegations in question can be proved of disproved only by inspecting the ballot papers
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Lokesh Katara & Another Vs. Honourable High Court of Gujarat | Dr. D.Y. Chandrachud, J.1. These proceedings have been instituted under Article 32 of the Constitution by two petitioners who are stated to be working as Systems Officers and Systems Assistants since 2009 on a contractual basis. The petitioners state that Systems Officers and Systems Assistants were engaged in the High Court and the district courts in the State of Gujarat in consonance with the National Policy and Action Plan prepared by the E- Committee. In 2013, the Government of Gujarat sanctioned posts of Systems Officers and Systems Assistants in the regular cadre. An amendment was made to the recruitment rules in 2015 for filling up these posts by direct recruitment. The existing Systems Officers and Systems Assistants working in various district courts submitted a representation seeking their absorption. An online skill test was conducted. Another representation was submitted on 16 March 2016. However, the representation for absorption was rejected on 26 May 2016. On 9 September 2016 an advertisement was published by the Registrar (Recruitment and Finance) inviting applications for thirty posts of Systems Officers and thirty posts of Systems Assistants. The Writ Petition has been instituted seeking to challenge the advertisement issued by the High Court and for a mandamus for incorporating a provision in the recruitment rules for the absorption of the petitioners and similarly placed persons.2. We are not inclined to entertain a Writ Petition under Article 32 of the Constitution. The petitioners have a remedy available of moving the High Court on the judicial side under Article 226 of the Constitution. In the circumstances, while leaving it open to the petitioners to institute appropriate proceedings as they may be advised, we decline to entertain this petition under Article 32 of the Constitution. | 0[ds]2. We are not inclined to entertain a Writ Petition under Article 32 of the Constitution. The petitioners have a remedy available of moving the High Court on the judicial side under Article 226 of the Constitution. In the circumstances, while leaving it open to the petitioners to institute appropriate proceedings as they may be advised, we decline to entertain this petition under Article 32 of the Constitution. | 0 | 308 | 78 | ### 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:
Dr. D.Y. Chandrachud, J.1. These proceedings have been instituted under Article 32 of the Constitution by two petitioners who are stated to be working as Systems Officers and Systems Assistants since 2009 on a contractual basis. The petitioners state that Systems Officers and Systems Assistants were engaged in the High Court and the district courts in the State of Gujarat in consonance with the National Policy and Action Plan prepared by the E- Committee. In 2013, the Government of Gujarat sanctioned posts of Systems Officers and Systems Assistants in the regular cadre. An amendment was made to the recruitment rules in 2015 for filling up these posts by direct recruitment. The existing Systems Officers and Systems Assistants working in various district courts submitted a representation seeking their absorption. An online skill test was conducted. Another representation was submitted on 16 March 2016. However, the representation for absorption was rejected on 26 May 2016. On 9 September 2016 an advertisement was published by the Registrar (Recruitment and Finance) inviting applications for thirty posts of Systems Officers and thirty posts of Systems Assistants. The Writ Petition has been instituted seeking to challenge the advertisement issued by the High Court and for a mandamus for incorporating a provision in the recruitment rules for the absorption of the petitioners and similarly placed persons.2. We are not inclined to entertain a Writ Petition under Article 32 of the Constitution. The petitioners have a remedy available of moving the High Court on the judicial side under Article 226 of the Constitution. In the circumstances, while leaving it open to the petitioners to institute appropriate proceedings as they may be advised, we decline to entertain this petition under Article 32 of the Constitution.
### Response:
0
### Explanation:
2. We are not inclined to entertain a Writ Petition under Article 32 of the Constitution. The petitioners have a remedy available of moving the High Court on the judicial side under Article 226 of the Constitution. In the circumstances, while leaving it open to the petitioners to institute appropriate proceedings as they may be advised, we decline to entertain this petition under Article 32 of the Constitution.
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Pramod Kumar Vs. The Oriental Insurance Co. Ltd. And Another | get the candidate promoted, who is having unblemished record. It is the delicate job on which the administration has to do. The difficulty arises when case of a particular employee does not fall within either of the three contingencies. But one can very well say that there is insistence on the vigilance clearance (where the case falls under either of the three categories or otherwise). It is true that when Honble Supreme Court dealt with the case of Union of India Vs. K.V. Jankiraman And Others (supra), three OMs referred by us were not in force. 27. It is very well true that averments by the Respondents about sending the case to Chief Vigilance Commissioner and referring the matter to CBI were not disputed by the Respondents. The copy of the FIR dated 12 January 2018 was filed by the Petitioner himself. This FIR is lodged by Deputy Superintendent of Police, CBI, New Delhi. It is filed on the basis of the preliminary inquiry dated 14 November 2017. Whereas the remark of Vigilance Department of sending the case to CVC dated 15 June 2016 and CVC has handed over the case to CBI vide dated 20 October 2016. Though the date of meeting of DPC is not available, we may find that the list of successful candidates was declared on 22 June 2017. 28. There were in all seven candidates. So one may very well say that two letters of 2016 were very much in existence prior to preliminary inquiry is registered on 14 November 2007. It is true that name of the Petitioner has not been named in the FIR. It is very well true that at the time of lodging of an FIR and particularly, when it involves documents, name of each and every culprits may not be known. It is part of an investigation. If one reads FIR, we may find modus-oparandi. One of the business of the Respondent-company is Marine Insurance. The vessels are insured. The FIR alleges that there was reinsurance taken from private companies by Respondent No.1-company. There is allegation that infact the original Marine Insurance Policies were not issued and forged documents were prepared and premium was parted away from funds of the Respondentcompany to private insurance companies and as such Respondent No.1 company was duped. In that exercise, some of the named officers of the company, representatives of the private companies were involved. Admittedly, a Chairman has granted sanction to prosecute the Petitioner vide Order dated 11 May 2020. It is but natural to grant sanction if the materials placed before him warrant and it is the requirement under the provisions of Prevention of Corruption Act. 29. Now we have got Inquiry Report dated 29 October 2021, thereby exonerating the Petitioner. The decision taken by Disciplinary Authority is not made known. It is very well true that one cause of action may lead to initiation of Departmental Enquiry on one hand and launching criminal prosecution on the other hand. Both these proceedings are required to be tried on the basis of available material and nature of inquiry, purpose of inquiry and outcome are different. Finding in one of them is not binding in other proceedings. 30. After considering all materials, what we feel is that the DPC is justified in not considering name of the Petitioner for promotion. This is the case which does not either fall under any of the three categories, nor it can be said that there is no suspicion over behavior of the Petitioner. The fact that Chief Vigilance Commissioner had sent case to CBI itself indicate that there is a criminal element involved in it. The case of the Respondents is fortified by the act of granting sanction subsequently. The fact that the sanction is granted itself suggest that there is sufficient material to file chargesheet against the Petitioner. Every time DPC may not deal with a clear case. Here we are affirming decision of the DPC also due to nonrebuttal by the Petitioner about sending case to CVC and to CBI. Delay and latches 31. The Respondent No.1-company opposed the prayer also on the ground of delay and latches. Learned Counsel appearing for Respondent No.1-company relied upon the following judgments : (1) Chairman/Managing Director, UP Power Corporation Ltd And Others Vs. Ram Gopal (Civil Appeal No.852 of 2020 with Criminal Appeal No.204 of 2020 Supreme Court of India, judgement dated 30.01.2020). (2) P.S. Sadasivaswamy Vs. State of Tamil Nadu 1974 AIR (SC) 2271. (3) City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala 2009(1)CTC 174. (4) Shiba Shankar Mohapatra Vs. State of Orrisa 2010(1) KLT 1(SN). 32. We have perused the judgments relied upon by the Respondents on the point of delay. On facts, learned Counsel for the Petitioner differentiated the ratios laid down in those judgments. It is true that in approaching the writ court diligence is very decisive factor in favour of the Petitioner. The observations in those judgments are on the basis of facts of those cases. The conclusion cannot be applied universally. The bottom line is that the writ court needs to consider whether the Petitioner has approached the court after inordinate delay which is unexplained and unjustified. 33. On this background, if facts of this petition are perused, we may find that the DPC was conducted on 22 June 2017, whereas the Petitioner is filed in the year 2019. It is undisputed fact that the Respondents have not informed to the Petitioner in writing why he was denied the promotion. Prior to filing the petition, the Petitioner has started pursuing with the higher officials. There are the correspondence starting from 11 March 2019 and last correspondence is of 30 August 2019 made with PMO. It shows that the Petitioner was not sitting idle and he has chosen to approach the court when he could not get justice from the higher officials. For these reasons, we do not think that on the ground of delay, the Petitioner is required to be non-suited. | 1[ds]Prior to dealing with them, it will be material to consider the law laid down by the Honble Supreme Court in case of Union of India Vs. K.V. Jankiraman And Others (1991) 4 Supreme Court Cases 109 . In that matter, the Honble Supreme Court dealt with various civil appeals arising out of different orders passed by Central Administrative Tribunal. In para8 questions involved in those appeals were narrated. They are :-(1) from which date the disciplinary or criminal proceeding can be said to be pending against an employee;(2) when the employee is held guilty, what is a course to be adopted and;(3) when employee is exonerated what are the benefits which enures to him.11. While dealing with those questions, Honble Supreme Court has considered the provisions of Office memorandum dated 13 January 1982 and 26 September 1986 issued by Government of India. It was held that from the date of issuance of a charge-sheet or a charge memo, Sealed Cover Procedure needs to be followed. It was observed that employee is not having a right to promotion, but certainly he has right to be considered for promotion. The contingencies under which Sealed Cover Procedure is to be followed was reiterated.16. So far as the first category is concerned, there is no question of ambiguity about the line of action to be proposed in respect of such an employee. Dispute arose only in respect of an employee falling under the second category. We are dealing with that category. It is very well true that an employee has got right to be considered for promotion (though he has no right of promotion). At the same time, it is true that any organization should promote only such an employee whose record is clear. Even though he fits into all criterias fixed for promotion, but if he is having blemished record, certainly an organization may not consider him for promotion at least till the time, he is cleared from all the allegations.17. It is true that functioning of any organization is governed by set of rules. They are binding on an organization as well as on employees working in it. So if an organization want to deny promotion to an otherwise eligible employee the person at the helm of the affairs of the organization can not arbitrarily deny the promotion. If there are allegations of misuse of official position by an employee, the person at the helm of affair need to verify and scrutinize the allegations. Such allegations may lead to initiation of disciplinary inquiry and sometime also may lead to initiation of criminal prosecution.18. In the present case the Petitioner is subjected to departmental inquiry and he is also facing a criminal prosecution. These facts were not in existence at the time, DPC hold its meeting. The Petitioner is exonerated in the departmental inquiry. The Inquiry Report dated 28 October 2021 is shown to us during hearing. Respondents claim that yet the findings given (exonerating the Petitioner and two others) is not confirmed by disciplinary authority.As said above initiation of departmental inquiry/criminal prosecution was not in existence at the time of holding of DPC. Admittedly, the minutes of meeting of DPC were neither produced nor shown to us. So what prompted the administration of Respondent No.1- company to place materials before DPC and which compelled DPC not to include name of the Petitioner in the promotion list20. If we will read the averments from the Respondents affidavit, we may finding following particulars :-a) The result of the Petitioner was kept in a sealed cover by Departmental Promotion Committee because Vigilance Department has not given the vigilance clearance, which is mandatory requirement;b) Vigilance remarked that the case was referred to CVC for First Stage Advice on 15 June 2016 with recommendation of CVO and DA. CVC vide letter dated 20 October 2016 handed over the case to SP, Bank Securities and Fraud Cell, CBI, New Delhi for detailed investigation;c) Sanction for prosecution has been accorded by C.A. vide letter dated 11 May 2020.21. Even those correspondence were not filed on record. They are referred in para No.10 of the affidavit-in-reply of Respondents. The Petitioner has filed an affidavit-in-rejoinder.23. Nowhere, the Petitioner has denied the averments relating to pending case with Chief Vigilance Commissioner and handing over the case to Superintendent of Police, CBI, New Delhi.26. When we have considered all these OMs cumulatively, we may find that Ministry of Personnel has tried to balance the rights of an employee to get the promotion on one hand and also tried to protect the interest of administration to get the candidate promoted, who is having unblemished record. It is the delicate job on which the administration has to do. The difficulty arises when case of a particular employee does not fall within either of the three contingencies. But one can very well say that there is insistence on the vigilance clearance (where the case falls under either of the three categories or otherwise). It is true that when Honble Supreme Court dealt with the case of Union of India Vs. K.V. Jankiraman And Others (supra), three OMs referred by us were not in force.27. It is very well true that averments by the Respondents about sending the case to Chief Vigilance Commissioner and referring the matter to CBI were not disputed by the Respondents. The copy of the FIR dated 12 January 2018 was filed by the Petitioner himself. This FIR is lodged by Deputy Superintendent of Police, CBI, New Delhi. It is filed on the basis of the preliminary inquiry dated 14 November 2017. Whereas the remark of Vigilance Department of sending the case to CVC dated 15 June 2016 and CVC has handed over the case to CBI vide dated 20 October 2016. Though the date of meeting of DPC is not available, we may find that the list of successful candidates was declared on 22 June 2017.28. There were in all seven candidates. So one may very well say that two letters of 2016 were very much in existence prior to preliminary inquiry is registered on 14 November 2007. It is true that name of the Petitioner has not been named in the FIR. It is very well true that at the time of lodging of an FIR and particularly, when it involves documents, name of each and every culprits may not be known. It is part of an investigation. If one reads FIR, we may find modus-oparandi. One of the business of the Respondent-company is Marine Insurance. The vessels are insured. The FIR alleges that there was reinsurance taken from private companies by Respondent No.1-company. There is allegation that infact the original Marine Insurance Policies were not issued and forged documents were prepared and premium was parted away from funds of the Respondentcompany to private insurance companies and as such Respondent No.1 company was duped. In that exercise, some of the named officers of the company, representatives of the private companies were involved. Admittedly, a Chairman has granted sanction to prosecute the Petitioner vide Order dated 11 May 2020. It is but natural to grant sanction if the materials placed before him warrant and it is the requirement under the provisions of Prevention of Corruption Act.29. Now we have got Inquiry Report dated 29 October 2021, thereby exonerating the Petitioner. The decision taken by Disciplinary Authority is not made known. It is very well true that one cause of action may lead to initiation of Departmental Enquiry on one hand and launching criminal prosecution on the other hand. Both these proceedings are required to be tried on the basis of available material and nature of inquiry, purpose of inquiry and outcome are different. Finding in one of them is not binding in other proceedings.30. After considering all materials, what we feel is that the DPC is justified in not considering name of the Petitioner for promotion. This is the case which does not either fall under any of the three categories, nor it can be said that there is no suspicion over behavior of the Petitioner. The fact that Chief Vigilance Commissioner had sent case to CBI itself indicate that there is a criminal element involved in it. The case of the Respondents is fortified by the act of granting sanction subsequently. The fact that the sanction is granted itself suggest that there is sufficient material to file chargesheet against the Petitioner. Every time DPC may not deal with a clear case. Here we are affirming decision of the DPC also due to nonrebuttal by the Petitioner about sending case to CVC and to CBI.32. We have perused the judgments relied upon by the Respondents on the point of delay. On facts, learned Counsel for the Petitioner differentiated the ratios laid down in those judgments. It is true that in approaching the writ court diligence is very decisive factor in favour of the Petitioner. The observations in those judgments are on the basis of facts of those cases. The conclusion cannot be applied universally. The bottom line is that the writ court needs to consider whether the Petitioner has approached the court after inordinate delay which is unexplained and unjustified.33. On this background, if facts of this petition are perused, we may find that the DPC was conducted on 22 June 2017, whereas the Petitioner is filed in the year 2019. It is undisputed fact that the Respondents have not informed to the Petitioner in writing why he was denied the promotion. Prior to filing the petition, the Petitioner has started pursuing with the higher officials. There are the correspondence starting from 11 March 2019 and last correspondence is of 30 August 2019 made with PMO. It shows that the Petitioner was not sitting idle and he has chosen to approach the court when he could not get justice from the higher officials. For these reasons, we do not think that on the ground of delay, the Petitioner is required to be non-suited. | 1 | 4,160 | 1,824 | ### 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:
get the candidate promoted, who is having unblemished record. It is the delicate job on which the administration has to do. The difficulty arises when case of a particular employee does not fall within either of the three contingencies. But one can very well say that there is insistence on the vigilance clearance (where the case falls under either of the three categories or otherwise). It is true that when Honble Supreme Court dealt with the case of Union of India Vs. K.V. Jankiraman And Others (supra), three OMs referred by us were not in force. 27. It is very well true that averments by the Respondents about sending the case to Chief Vigilance Commissioner and referring the matter to CBI were not disputed by the Respondents. The copy of the FIR dated 12 January 2018 was filed by the Petitioner himself. This FIR is lodged by Deputy Superintendent of Police, CBI, New Delhi. It is filed on the basis of the preliminary inquiry dated 14 November 2017. Whereas the remark of Vigilance Department of sending the case to CVC dated 15 June 2016 and CVC has handed over the case to CBI vide dated 20 October 2016. Though the date of meeting of DPC is not available, we may find that the list of successful candidates was declared on 22 June 2017. 28. There were in all seven candidates. So one may very well say that two letters of 2016 were very much in existence prior to preliminary inquiry is registered on 14 November 2007. It is true that name of the Petitioner has not been named in the FIR. It is very well true that at the time of lodging of an FIR and particularly, when it involves documents, name of each and every culprits may not be known. It is part of an investigation. If one reads FIR, we may find modus-oparandi. One of the business of the Respondent-company is Marine Insurance. The vessels are insured. The FIR alleges that there was reinsurance taken from private companies by Respondent No.1-company. There is allegation that infact the original Marine Insurance Policies were not issued and forged documents were prepared and premium was parted away from funds of the Respondentcompany to private insurance companies and as such Respondent No.1 company was duped. In that exercise, some of the named officers of the company, representatives of the private companies were involved. Admittedly, a Chairman has granted sanction to prosecute the Petitioner vide Order dated 11 May 2020. It is but natural to grant sanction if the materials placed before him warrant and it is the requirement under the provisions of Prevention of Corruption Act. 29. Now we have got Inquiry Report dated 29 October 2021, thereby exonerating the Petitioner. The decision taken by Disciplinary Authority is not made known. It is very well true that one cause of action may lead to initiation of Departmental Enquiry on one hand and launching criminal prosecution on the other hand. Both these proceedings are required to be tried on the basis of available material and nature of inquiry, purpose of inquiry and outcome are different. Finding in one of them is not binding in other proceedings. 30. After considering all materials, what we feel is that the DPC is justified in not considering name of the Petitioner for promotion. This is the case which does not either fall under any of the three categories, nor it can be said that there is no suspicion over behavior of the Petitioner. The fact that Chief Vigilance Commissioner had sent case to CBI itself indicate that there is a criminal element involved in it. The case of the Respondents is fortified by the act of granting sanction subsequently. The fact that the sanction is granted itself suggest that there is sufficient material to file chargesheet against the Petitioner. Every time DPC may not deal with a clear case. Here we are affirming decision of the DPC also due to nonrebuttal by the Petitioner about sending case to CVC and to CBI. Delay and latches 31. The Respondent No.1-company opposed the prayer also on the ground of delay and latches. Learned Counsel appearing for Respondent No.1-company relied upon the following judgments : (1) Chairman/Managing Director, UP Power Corporation Ltd And Others Vs. Ram Gopal (Civil Appeal No.852 of 2020 with Criminal Appeal No.204 of 2020 Supreme Court of India, judgement dated 30.01.2020). (2) P.S. Sadasivaswamy Vs. State of Tamil Nadu 1974 AIR (SC) 2271. (3) City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala 2009(1)CTC 174. (4) Shiba Shankar Mohapatra Vs. State of Orrisa 2010(1) KLT 1(SN). 32. We have perused the judgments relied upon by the Respondents on the point of delay. On facts, learned Counsel for the Petitioner differentiated the ratios laid down in those judgments. It is true that in approaching the writ court diligence is very decisive factor in favour of the Petitioner. The observations in those judgments are on the basis of facts of those cases. The conclusion cannot be applied universally. The bottom line is that the writ court needs to consider whether the Petitioner has approached the court after inordinate delay which is unexplained and unjustified. 33. On this background, if facts of this petition are perused, we may find that the DPC was conducted on 22 June 2017, whereas the Petitioner is filed in the year 2019. It is undisputed fact that the Respondents have not informed to the Petitioner in writing why he was denied the promotion. Prior to filing the petition, the Petitioner has started pursuing with the higher officials. There are the correspondence starting from 11 March 2019 and last correspondence is of 30 August 2019 made with PMO. It shows that the Petitioner was not sitting idle and he has chosen to approach the court when he could not get justice from the higher officials. For these reasons, we do not think that on the ground of delay, the Petitioner is required to be non-suited.
### Response:
1
### Explanation:
by C.A. vide letter dated 11 May 2020.21. Even those correspondence were not filed on record. They are referred in para No.10 of the affidavit-in-reply of Respondents. The Petitioner has filed an affidavit-in-rejoinder.23. Nowhere, the Petitioner has denied the averments relating to pending case with Chief Vigilance Commissioner and handing over the case to Superintendent of Police, CBI, New Delhi.26. When we have considered all these OMs cumulatively, we may find that Ministry of Personnel has tried to balance the rights of an employee to get the promotion on one hand and also tried to protect the interest of administration to get the candidate promoted, who is having unblemished record. It is the delicate job on which the administration has to do. The difficulty arises when case of a particular employee does not fall within either of the three contingencies. But one can very well say that there is insistence on the vigilance clearance (where the case falls under either of the three categories or otherwise). It is true that when Honble Supreme Court dealt with the case of Union of India Vs. K.V. Jankiraman And Others (supra), three OMs referred by us were not in force.27. It is very well true that averments by the Respondents about sending the case to Chief Vigilance Commissioner and referring the matter to CBI were not disputed by the Respondents. The copy of the FIR dated 12 January 2018 was filed by the Petitioner himself. This FIR is lodged by Deputy Superintendent of Police, CBI, New Delhi. It is filed on the basis of the preliminary inquiry dated 14 November 2017. Whereas the remark of Vigilance Department of sending the case to CVC dated 15 June 2016 and CVC has handed over the case to CBI vide dated 20 October 2016. Though the date of meeting of DPC is not available, we may find that the list of successful candidates was declared on 22 June 2017.28. There were in all seven candidates. So one may very well say that two letters of 2016 were very much in existence prior to preliminary inquiry is registered on 14 November 2007. It is true that name of the Petitioner has not been named in the FIR. It is very well true that at the time of lodging of an FIR and particularly, when it involves documents, name of each and every culprits may not be known. It is part of an investigation. If one reads FIR, we may find modus-oparandi. One of the business of the Respondent-company is Marine Insurance. The vessels are insured. The FIR alleges that there was reinsurance taken from private companies by Respondent No.1-company. There is allegation that infact the original Marine Insurance Policies were not issued and forged documents were prepared and premium was parted away from funds of the Respondentcompany to private insurance companies and as such Respondent No.1 company was duped. In that exercise, some of the named officers of the company, representatives of the private companies were involved. Admittedly, a Chairman has granted sanction to prosecute the Petitioner vide Order dated 11 May 2020. It is but natural to grant sanction if the materials placed before him warrant and it is the requirement under the provisions of Prevention of Corruption Act.29. Now we have got Inquiry Report dated 29 October 2021, thereby exonerating the Petitioner. The decision taken by Disciplinary Authority is not made known. It is very well true that one cause of action may lead to initiation of Departmental Enquiry on one hand and launching criminal prosecution on the other hand. Both these proceedings are required to be tried on the basis of available material and nature of inquiry, purpose of inquiry and outcome are different. Finding in one of them is not binding in other proceedings.30. After considering all materials, what we feel is that the DPC is justified in not considering name of the Petitioner for promotion. This is the case which does not either fall under any of the three categories, nor it can be said that there is no suspicion over behavior of the Petitioner. The fact that Chief Vigilance Commissioner had sent case to CBI itself indicate that there is a criminal element involved in it. The case of the Respondents is fortified by the act of granting sanction subsequently. The fact that the sanction is granted itself suggest that there is sufficient material to file chargesheet against the Petitioner. Every time DPC may not deal with a clear case. Here we are affirming decision of the DPC also due to nonrebuttal by the Petitioner about sending case to CVC and to CBI.32. We have perused the judgments relied upon by the Respondents on the point of delay. On facts, learned Counsel for the Petitioner differentiated the ratios laid down in those judgments. It is true that in approaching the writ court diligence is very decisive factor in favour of the Petitioner. The observations in those judgments are on the basis of facts of those cases. The conclusion cannot be applied universally. The bottom line is that the writ court needs to consider whether the Petitioner has approached the court after inordinate delay which is unexplained and unjustified.33. On this background, if facts of this petition are perused, we may find that the DPC was conducted on 22 June 2017, whereas the Petitioner is filed in the year 2019. It is undisputed fact that the Respondents have not informed to the Petitioner in writing why he was denied the promotion. Prior to filing the petition, the Petitioner has started pursuing with the higher officials. There are the correspondence starting from 11 March 2019 and last correspondence is of 30 August 2019 made with PMO. It shows that the Petitioner was not sitting idle and he has chosen to approach the court when he could not get justice from the higher officials. For these reasons, we do not think that on the ground of delay, the Petitioner is required to be non-suited.
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Commissioner Of Income Tax, Nagpur Vs. Sutlej Cotton Mills Supply Agency Ltd | this would show that the assessee had been buying and selling shares even though as an isolated adventure in the nature of business. The High Court has not upset this finding, but has only said that this is an isolated transaction. That apart, in the same year, a sum of Rs. 6, 30, 000 was debited to the profit and loss account on devaluation of the shares of M/s. Pilani Investment Corporation. Such a debit was permissible only on the footing that the shares constituted the stock-in-trade of the assessee. It is no doubt true that the department did not allow this claim. But that was on the basis that the claim that the shares have fallen in value was not proved to the satisfaction of the Income-tax Officer, and not on the basis that the shares were not held as stock-in-trade as the High Court wrongly thought. The Tribunal also referred to the resolutions passed by the assessee authorising one of its directors to purchase and sell the shares in the rayon company. The finding of the High Court that the clauses of the memorandum of association, viz., clauses 10, 12, 13, 28 and 29 do not authorize the company to acquire and sell shares as business has no relevance in view of the aforesaid resolution of the assessee and of the fact that it had been dealing in shares in a commercial spirit as is evident from its claim for loss in dealings in the shares of M/s. Titaghur Paper Mills Ltd. and devaluation of shares of M/s. Pilani Investment Corporation on the basis that they had fallen in valueSecondly, the Tribunal said that from 1947 to 1956, no dividend had been declared by the rayon company and that the money which went into the purchase of these shares was borrowed by the assessee. In other words, the view of the Tribunal was, it was with borrowed funds that the assessee purchased the shares. It is no doubt true that there was no evidence to show that the money was specifically borrowed for the purpose of buying shares. But there was evidence before the Tribunal for its finding that the liabilities of the assessee exceeded its assets. The finding, therefore, that the shares were purchased with borrowed funds on which the assessee was paying interest, was a finding supported by evidence. The reasoning of the Tribunal that it is most improbable that the assessee would be investing borrowed money on which interest would have to be paid in shares which yielded no dividend was correct. We cannot say that this was not a relevant circumstance for the Tribunal to take into consideration for coming to the conclusion that the transaction was an adventure in the nature of business. Looking into all the circumstances, the Tribunal negatived the case of the assessee that it had invested its funds with a view to earn dividend.The case of the assessee throughout was that the purchase of the shares was by way of investment and the sale was forced by necessity because the creditors were pressing for repayment of the loan. The Tribunal found that the shares were not sold to liquidate the debts of the assessee as the balance-sheet as on March 31, 1956, showed that the proceeds were kept as liquid cash in the United Commercial Bank Ltd.As already stated, the main reason why the High Court came to a different conclusion, is stated as follows in the judgment." Undoubtedly, there are some elements which are contra-indicative of investment but there are other considerations which detract from their value as elements indicating an adventure in the nature of trade, the main being, that the assessee-company, which is controlled by the Birlas, purchased the shares with a view to assisting a sister company controlled by the same persons, and not to embark upon a venture in the nature of trade."At no time had the assessee a case that the shares were purchased with a view to help a sister company controlled by the Birlas. No such case was set up by the assessee either before the Income-tax Officer or the Appellate Assistant Commissioner, nor was it urged before the Appellate Tribunal. Nowhere in the statement of case or the supplementary statement of case prepared by the Tribunal and filed in the High Court was there any finding on the question. The whole conclusion of the High Court is based on unwarranted assumption of facts which must have been taken from the argument of the assessee before the High Court. The danger of failing to recognize that the jurisdiction of the High Court in these matters is only advisory and that conclusions of facts are conclusions on which the High Court is to exercise the advisory jurisdiction is illustrated by this case.Mr. Chagla for the respondent contended that the only question to be asked and answered is : What was the dominant intention of the assessee when it purchased the shares ? If the dominant intention was to carry on an adventure in the nature of business, the profit can be taxed ; otherwise not. In other words, the question is whether the assessee purchased the shares in a commercial spirit with a view to make profit by trading in them. The Tribunal found, after taking into account all the relevant circumstances, that the dominant intention of the assessee was to make profit by resale of the shares and not to make an investment.The finding that loss or profit is a trading loss or profit is primarily a finding of fact, though in reaching that finding the Tribunal has to apply the correct test laid down by law. When we see that the Tribunal has considered the evidence on record and applied the correct test, there is no scope for interference with the finding of the Tribunal (see Commissioner of Income-tax v. Ashoka Marketing Co.)We do not think that the High Court was right in interfering with the judgment of the Tribunal. | 1[ds]The Tribunal relied on the following circumstances for coming to the conclusion. The assessee had been dealing in shares from 1951 to 1953. For the assessment yearthe assessee claimed a sum of Rs. 1, 29, 214 which was shown in the profit and loss account and theof the company for the year ending March 31, 1951, as a loss in the dealing of shares of M/s. Titaghur Paper Mills Ltd. This claim was allowed by theOfficer. According to the Tribunal, this would show that the assessee had been buying and selling shares even though as an isolated adventure in the nature of business. The High Court has not upset this finding, but has only said that this is an isolated transaction. That apart, in the same year, a sum of Rs. 6, 30, 000 was debited to the profit and loss account on devaluation of the shares of M/s. Pilani Investment Corporation. Such a debit was permissible only on the footing that the shares constituted theof the assessee. It is no doubt true that the department did not allow this claim. But that was on the basis that the claim that the shares have fallen in value was not proved to the satisfaction of theOfficer, and not on the basis that the shares were not held asas the High Court wrongly thought. The Tribunal also referred to the resolutions passed by the assessee authorising one of its directors to purchase and sell the shares in the rayon company. The finding of the High Court that the clauses of the memorandum of association, viz., clauses 10, 12, 13, 28 and 29 do not authorize the company to acquire and sell shares as business has no relevance in view of the aforesaid resolution of the assessee and of the fact that it had been dealing in shares in a commercial spirit as is evident from its claim for loss in dealings in the shares of M/s. Titaghur Paper Mills Ltd. and devaluation of shares of M/s. Pilani Investment Corporation on the basis that they had fallen in valueSecondly, the Tribunal said that from 1947 to 1956, no dividend had been declared by the rayon company and that the money which went into the purchase of these shares was borrowed by the assessee. In other words, the view of the Tribunal was, it was with borrowed funds that the assessee purchased the shares. It is no doubt true that there was no evidence to show that the money was specifically borrowed for the purpose of buying shares. But there was evidence before the Tribunal for its finding that the liabilities of the assessee exceeded its assets. The finding, therefore, that the shares were purchased with borrowed funds on which the assessee was paying interest, was a finding supported by evidence. The reasoning of the Tribunal that it is most improbable that the assessee would be investing borrowed money on which interest would have to be paid in shares which yielded no dividend was correct. We cannot say that this was not a relevant circumstance for the Tribunal to take into consideration for coming to the conclusion that the transaction was an adventure in the nature of business. Looking into all the circumstances, the Tribunal negatived the case of the assessee that it had invested its funds with a view to earn dividend.TheTribunal found, after taking into account all the relevant circumstances, that the dominant intention of the assessee was to make profit by resale of the shares and not to make an investment.The finding that loss or profit is a trading loss or profit is primarily a finding of fact, though in reaching that finding the Tribunal has to apply the correct test laid down by law. When we see that the Tribunal has considered the evidence on record and applied the correct test, there is no scope for interference with the finding of the Tribunal (see Commissioner ofv. Ashoka Marketing Co.)We do not think that the High Court was right in interfering with the judgment of the Tribunal. | 1 | 3,994 | 739 | ### 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:
this would show that the assessee had been buying and selling shares even though as an isolated adventure in the nature of business. The High Court has not upset this finding, but has only said that this is an isolated transaction. That apart, in the same year, a sum of Rs. 6, 30, 000 was debited to the profit and loss account on devaluation of the shares of M/s. Pilani Investment Corporation. Such a debit was permissible only on the footing that the shares constituted the stock-in-trade of the assessee. It is no doubt true that the department did not allow this claim. But that was on the basis that the claim that the shares have fallen in value was not proved to the satisfaction of the Income-tax Officer, and not on the basis that the shares were not held as stock-in-trade as the High Court wrongly thought. The Tribunal also referred to the resolutions passed by the assessee authorising one of its directors to purchase and sell the shares in the rayon company. The finding of the High Court that the clauses of the memorandum of association, viz., clauses 10, 12, 13, 28 and 29 do not authorize the company to acquire and sell shares as business has no relevance in view of the aforesaid resolution of the assessee and of the fact that it had been dealing in shares in a commercial spirit as is evident from its claim for loss in dealings in the shares of M/s. Titaghur Paper Mills Ltd. and devaluation of shares of M/s. Pilani Investment Corporation on the basis that they had fallen in valueSecondly, the Tribunal said that from 1947 to 1956, no dividend had been declared by the rayon company and that the money which went into the purchase of these shares was borrowed by the assessee. In other words, the view of the Tribunal was, it was with borrowed funds that the assessee purchased the shares. It is no doubt true that there was no evidence to show that the money was specifically borrowed for the purpose of buying shares. But there was evidence before the Tribunal for its finding that the liabilities of the assessee exceeded its assets. The finding, therefore, that the shares were purchased with borrowed funds on which the assessee was paying interest, was a finding supported by evidence. The reasoning of the Tribunal that it is most improbable that the assessee would be investing borrowed money on which interest would have to be paid in shares which yielded no dividend was correct. We cannot say that this was not a relevant circumstance for the Tribunal to take into consideration for coming to the conclusion that the transaction was an adventure in the nature of business. Looking into all the circumstances, the Tribunal negatived the case of the assessee that it had invested its funds with a view to earn dividend.The case of the assessee throughout was that the purchase of the shares was by way of investment and the sale was forced by necessity because the creditors were pressing for repayment of the loan. The Tribunal found that the shares were not sold to liquidate the debts of the assessee as the balance-sheet as on March 31, 1956, showed that the proceeds were kept as liquid cash in the United Commercial Bank Ltd.As already stated, the main reason why the High Court came to a different conclusion, is stated as follows in the judgment." Undoubtedly, there are some elements which are contra-indicative of investment but there are other considerations which detract from their value as elements indicating an adventure in the nature of trade, the main being, that the assessee-company, which is controlled by the Birlas, purchased the shares with a view to assisting a sister company controlled by the same persons, and not to embark upon a venture in the nature of trade."At no time had the assessee a case that the shares were purchased with a view to help a sister company controlled by the Birlas. No such case was set up by the assessee either before the Income-tax Officer or the Appellate Assistant Commissioner, nor was it urged before the Appellate Tribunal. Nowhere in the statement of case or the supplementary statement of case prepared by the Tribunal and filed in the High Court was there any finding on the question. The whole conclusion of the High Court is based on unwarranted assumption of facts which must have been taken from the argument of the assessee before the High Court. The danger of failing to recognize that the jurisdiction of the High Court in these matters is only advisory and that conclusions of facts are conclusions on which the High Court is to exercise the advisory jurisdiction is illustrated by this case.Mr. Chagla for the respondent contended that the only question to be asked and answered is : What was the dominant intention of the assessee when it purchased the shares ? If the dominant intention was to carry on an adventure in the nature of business, the profit can be taxed ; otherwise not. In other words, the question is whether the assessee purchased the shares in a commercial spirit with a view to make profit by trading in them. The Tribunal found, after taking into account all the relevant circumstances, that the dominant intention of the assessee was to make profit by resale of the shares and not to make an investment.The finding that loss or profit is a trading loss or profit is primarily a finding of fact, though in reaching that finding the Tribunal has to apply the correct test laid down by law. When we see that the Tribunal has considered the evidence on record and applied the correct test, there is no scope for interference with the finding of the Tribunal (see Commissioner of Income-tax v. Ashoka Marketing Co.)We do not think that the High Court was right in interfering with the judgment of the Tribunal.
### Response:
1
### Explanation:
The Tribunal relied on the following circumstances for coming to the conclusion. The assessee had been dealing in shares from 1951 to 1953. For the assessment yearthe assessee claimed a sum of Rs. 1, 29, 214 which was shown in the profit and loss account and theof the company for the year ending March 31, 1951, as a loss in the dealing of shares of M/s. Titaghur Paper Mills Ltd. This claim was allowed by theOfficer. According to the Tribunal, this would show that the assessee had been buying and selling shares even though as an isolated adventure in the nature of business. The High Court has not upset this finding, but has only said that this is an isolated transaction. That apart, in the same year, a sum of Rs. 6, 30, 000 was debited to the profit and loss account on devaluation of the shares of M/s. Pilani Investment Corporation. Such a debit was permissible only on the footing that the shares constituted theof the assessee. It is no doubt true that the department did not allow this claim. But that was on the basis that the claim that the shares have fallen in value was not proved to the satisfaction of theOfficer, and not on the basis that the shares were not held asas the High Court wrongly thought. The Tribunal also referred to the resolutions passed by the assessee authorising one of its directors to purchase and sell the shares in the rayon company. The finding of the High Court that the clauses of the memorandum of association, viz., clauses 10, 12, 13, 28 and 29 do not authorize the company to acquire and sell shares as business has no relevance in view of the aforesaid resolution of the assessee and of the fact that it had been dealing in shares in a commercial spirit as is evident from its claim for loss in dealings in the shares of M/s. Titaghur Paper Mills Ltd. and devaluation of shares of M/s. Pilani Investment Corporation on the basis that they had fallen in valueSecondly, the Tribunal said that from 1947 to 1956, no dividend had been declared by the rayon company and that the money which went into the purchase of these shares was borrowed by the assessee. In other words, the view of the Tribunal was, it was with borrowed funds that the assessee purchased the shares. It is no doubt true that there was no evidence to show that the money was specifically borrowed for the purpose of buying shares. But there was evidence before the Tribunal for its finding that the liabilities of the assessee exceeded its assets. The finding, therefore, that the shares were purchased with borrowed funds on which the assessee was paying interest, was a finding supported by evidence. The reasoning of the Tribunal that it is most improbable that the assessee would be investing borrowed money on which interest would have to be paid in shares which yielded no dividend was correct. We cannot say that this was not a relevant circumstance for the Tribunal to take into consideration for coming to the conclusion that the transaction was an adventure in the nature of business. Looking into all the circumstances, the Tribunal negatived the case of the assessee that it had invested its funds with a view to earn dividend.TheTribunal found, after taking into account all the relevant circumstances, that the dominant intention of the assessee was to make profit by resale of the shares and not to make an investment.The finding that loss or profit is a trading loss or profit is primarily a finding of fact, though in reaching that finding the Tribunal has to apply the correct test laid down by law. When we see that the Tribunal has considered the evidence on record and applied the correct test, there is no scope for interference with the finding of the Tribunal (see Commissioner ofv. Ashoka Marketing Co.)We do not think that the High Court was right in interfering with the judgment of the Tribunal.
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State of Mysore Vs. P.T. Muniswamy Gowda & Others | and objections were preferred in December. 1963 by P. T. Muniswamy Gowda on behalf of himself and his brother (respondents in this Court) against the draft data of compensation. Thereafter the inamdars made statements of their claim to compensation which were recorded under Section 23 on January 10, 1964. The Special Deputy Commissioner by his award dated January. 13, 1964 determined the income which was lower than the Mahazar estimate and also than that contained in the draft of the Special Tahsildar. The following table would give us the picture of the itemwise claim made by the inamdars, the Mahazar estimate, the proposal of the Special Tahsildar and the amount finally determined by the Special Deputy Commissioner:ItemsClaimMahazar estimate of incomeProposal of the Special TahsildarAward by Deputy Commr.Rs.Rs.Rs.Rs.1. Income from Bande (6 places)4,500/-3,000/-2,300/-2,000/-2. Sale of jungle fuel3,000/-1,000/-500/-500/-3. Sale of black Jalli and white Jalli2,000/-1,000/-200/-200/-4. Tamarind trees (5)420/-350/-240/-240/-5. Hullugavalu700/-300/-300/-200/-6. Tandadi and Rali500/-400/-250/-7. Honge and Alemane Surugu400/-200/-50/-8. Red Gravel400/-200/-50/- nil9. Beedi leaves300/-100/-25/-10. Fishery200/-100/-50/-11. Sand in Halla100/-100/-50/-Total12,520/-6,850/-4,015/-3,240/-3. The inamdars, feeling dissatisfied with the final award, preferred an appeal to the High Court. The High Court came to the conduction that there was no cogent ground for reducing the amount claimed by the inamdars and by the impugned judgment enhanced the compensation from Rs. 31,400/- to Rs. 1,25,000/-. It may be recalled that under Section 17 (1) (v) the compensation to be awarded is to be equal to ten times the average net annual income determined according to the provisions of the Act.4. In this appeal the only serious criticism which had been pressed by Shri Dholakia, the learned counsel for the appellant against the judgment of the High Court was that the High Court had not taken into consideration the Mahazar report. This submission appears to be misconceived. The High Court was fully alive to the Mahazar report as is clear from the following observation in its judgment:"The Deputy Commissioner actually visited the village for a local enquiry in addition to furnishing himself with information in the shape of Mahazars prepared in the locality as well as a report by the local Tahsildar. He found that the quarry was a huge one and was being worked in four or five places even during his visit. He was also quite satisfied about the fact that the jodidars were deriving a reasonably substantial income from the other items like fuel, jalli tamarind trees and grazing ground."5. The counsel then faintly contended that the various vouchers referred to by the High Court in support of the annual income of the inamdars were not proved according to the law of evidence and, therefore, the judgment must be held to be vitiated on account of an error of law. This contention is equally devoid of merit. Not only was this contention not raised in the High Court, there being no reference to it in the judgment under appeal, there is also ample a proof of the vouchers on the record. We find from the record that P. T. Muniswamy Gowda, the objecting inamdar, had actually appeared before the Deputy Commissioner, himself on January 10, 1964 and stated on oath as follows:-"The compensation now awarded to our village is very low. The average annual income of this village was Rs. 12,520/-, in this behalf we have produced vouchers at the time of on enquiry by the Tahsildar."6. He deposed that the compensation actually awarded was only 1/4 th of their claim and this according to the inamdar was unjust. We further find that P. T. Muniswami Gowda had also appeared and made a statement on oath on March 11. 1963 before the special Tahsildar when that officer held the enquiry for preparing the Mahazar statement. In those proceedings all the vouchers on which reliance was placed in support of their claim in respect of the income from the inam were actually produced. Now, the enquiry under this Act does not seem to us to be governed by the provisions of the Indian Evidence Act which apply to judicial proceedings in or before a Court. The Special Deputy Commissioner or the Special Tahsildar holding enquiries under the Inam Abolitian Act can by no means be described judicial proceedings in or before a Court and indeed Shri Dholakia rightly did not contend to the contrary. Now, if the technical provisions of the mode of proof as provided by the Indian Evidence Act are inapplicable then the criticism levelled by the appellant cannot possibly have any merit. Needless to add that no objection to the made of proof of the vouchers was ever before raised in these proceedings. This contention must, therefore, be repelled.7. The High Court, after referring to the visit of the Deputy Commissioner to the village in question for local enquiry and to the fact that the Deputy Commissioner had taken into consideration the Tahsildars reprint expressed its conclusion in these words:"The appellant had produced eleven vouchers in support of their estimate of the annual income from these various items. If the vouchers are good and genuine, they fully support their case and that is also the opinion of the Deputy Commissioner. He did not find any reason to disbelieve or even to suspect any one of the vouchers. Nevertheless he not only reduced the estimate of the average annual income in respect of the first five items to Rs. 3,140/- but also totally rejected the claim in respect of the remaining items numbers 6 to 11.For the reduction there is no reason whatever except a different estimate made by the Tahsildar and then by the Deputy Commissioner resulting in progressive reduction of the figures."8. This passage discloses the final reasoning on which the High Court allowed the appeal. The appellants learned counsel was unable to point out any error in this reasoning. From the record to which our attention has been drawn we are satisfied that the High Court was fully justified in enhancing the claim of the inamdars and it is not possible to disagree with its conclusions | 0[ds]At this stage it would be relevant to point out that under Rule 8(2) of the Rules framed by the Government of Mysore under Section 38 of the Act where the particulars necessary to compute the average net income under Clause (v) of(1) if Section 17 are not available shall be the average net annual income where the particulars are not available, or where the particulars appear in material respect to be incorrect, the computation of the average net annual income under Clause (v) of(1) of Section 17 is required to be made after local enquiry and on the basis of the annual income derived from similar lands situated in the samesubmission appears to be misconceived. The High Court was fully alive to the Mahazar report as is clear from the following observation in its judgment:"The Deputy Commissioner actually visited the village for a local enquiry in addition to furnishing himself with information in the shape of Mahazars prepared in the locality as well as a report by the local Tahsildar. He found that the quarry was a huge one and was being worked in four or five places even during his visit. He was also quite satisfied about the fact that the jodidars were deriving a reasonably substantial income from the other items like fuel, jalli tamarind trees and grazingcontention is equally devoid of merit. Not only was this contention not raised in the High Court, there being no reference to it in the judgment under appeal, there is also ample a proof of the vouchers on the record. We find from the record that P. T. Muniswamy Gowda, the objecting inamdar, had actually appeared before the Deputy Commissioner, himself on January 10, 1964 and stated on oath ascompensation now awarded to our village is very low. The average annual income of this village was Rs.in this behalf we have produced vouchers at the time of on enquiry by thethe enquiry under this Act does not seem to us to be governed by the provisions of the Indian Evidence Act which apply to judicial proceedings in or before a Court. The Special Deputy Commissioner or the Special Tahsildar holding enquiries under the Inam Abolitian Act can by no means be described judicial proceedings in or before a Court and indeed Shri Dholakia rightly did not contend to the contrary. Now, if the technical provisions of the mode of proof as provided by the Indian Evidence Act are inapplicable then the criticism levelled by the appellant cannot possibly have any merit. Needless to add that no objection to the made of proof of the vouchers was ever before raised in these proceedings. This contention must, therefore, bepassage discloses the final reasoning on which the High Court allowed the appeal. The appellants learned counsel was unable to point out any error in this reasoning. From the record to which our attention has been drawn we are satisfied that the High Court was fully justified in enhancing the claim of the inamdars and it is not possible to disagree with its conclusions | 0 | 2,455 | 555 | ### 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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and objections were preferred in December. 1963 by P. T. Muniswamy Gowda on behalf of himself and his brother (respondents in this Court) against the draft data of compensation. Thereafter the inamdars made statements of their claim to compensation which were recorded under Section 23 on January 10, 1964. The Special Deputy Commissioner by his award dated January. 13, 1964 determined the income which was lower than the Mahazar estimate and also than that contained in the draft of the Special Tahsildar. The following table would give us the picture of the itemwise claim made by the inamdars, the Mahazar estimate, the proposal of the Special Tahsildar and the amount finally determined by the Special Deputy Commissioner:ItemsClaimMahazar estimate of incomeProposal of the Special TahsildarAward by Deputy Commr.Rs.Rs.Rs.Rs.1. Income from Bande (6 places)4,500/-3,000/-2,300/-2,000/-2. Sale of jungle fuel3,000/-1,000/-500/-500/-3. Sale of black Jalli and white Jalli2,000/-1,000/-200/-200/-4. Tamarind trees (5)420/-350/-240/-240/-5. Hullugavalu700/-300/-300/-200/-6. Tandadi and Rali500/-400/-250/-7. Honge and Alemane Surugu400/-200/-50/-8. Red Gravel400/-200/-50/- nil9. Beedi leaves300/-100/-25/-10. Fishery200/-100/-50/-11. Sand in Halla100/-100/-50/-Total12,520/-6,850/-4,015/-3,240/-3. The inamdars, feeling dissatisfied with the final award, preferred an appeal to the High Court. The High Court came to the conduction that there was no cogent ground for reducing the amount claimed by the inamdars and by the impugned judgment enhanced the compensation from Rs. 31,400/- to Rs. 1,25,000/-. It may be recalled that under Section 17 (1) (v) the compensation to be awarded is to be equal to ten times the average net annual income determined according to the provisions of the Act.4. In this appeal the only serious criticism which had been pressed by Shri Dholakia, the learned counsel for the appellant against the judgment of the High Court was that the High Court had not taken into consideration the Mahazar report. This submission appears to be misconceived. The High Court was fully alive to the Mahazar report as is clear from the following observation in its judgment:"The Deputy Commissioner actually visited the village for a local enquiry in addition to furnishing himself with information in the shape of Mahazars prepared in the locality as well as a report by the local Tahsildar. He found that the quarry was a huge one and was being worked in four or five places even during his visit. He was also quite satisfied about the fact that the jodidars were deriving a reasonably substantial income from the other items like fuel, jalli tamarind trees and grazing ground."5. The counsel then faintly contended that the various vouchers referred to by the High Court in support of the annual income of the inamdars were not proved according to the law of evidence and, therefore, the judgment must be held to be vitiated on account of an error of law. This contention is equally devoid of merit. Not only was this contention not raised in the High Court, there being no reference to it in the judgment under appeal, there is also ample a proof of the vouchers on the record. We find from the record that P. T. Muniswamy Gowda, the objecting inamdar, had actually appeared before the Deputy Commissioner, himself on January 10, 1964 and stated on oath as follows:-"The compensation now awarded to our village is very low. The average annual income of this village was Rs. 12,520/-, in this behalf we have produced vouchers at the time of on enquiry by the Tahsildar."6. He deposed that the compensation actually awarded was only 1/4 th of their claim and this according to the inamdar was unjust. We further find that P. T. Muniswami Gowda had also appeared and made a statement on oath on March 11. 1963 before the special Tahsildar when that officer held the enquiry for preparing the Mahazar statement. In those proceedings all the vouchers on which reliance was placed in support of their claim in respect of the income from the inam were actually produced. Now, the enquiry under this Act does not seem to us to be governed by the provisions of the Indian Evidence Act which apply to judicial proceedings in or before a Court. The Special Deputy Commissioner or the Special Tahsildar holding enquiries under the Inam Abolitian Act can by no means be described judicial proceedings in or before a Court and indeed Shri Dholakia rightly did not contend to the contrary. Now, if the technical provisions of the mode of proof as provided by the Indian Evidence Act are inapplicable then the criticism levelled by the appellant cannot possibly have any merit. Needless to add that no objection to the made of proof of the vouchers was ever before raised in these proceedings. This contention must, therefore, be repelled.7. The High Court, after referring to the visit of the Deputy Commissioner to the village in question for local enquiry and to the fact that the Deputy Commissioner had taken into consideration the Tahsildars reprint expressed its conclusion in these words:"The appellant had produced eleven vouchers in support of their estimate of the annual income from these various items. If the vouchers are good and genuine, they fully support their case and that is also the opinion of the Deputy Commissioner. He did not find any reason to disbelieve or even to suspect any one of the vouchers. Nevertheless he not only reduced the estimate of the average annual income in respect of the first five items to Rs. 3,140/- but also totally rejected the claim in respect of the remaining items numbers 6 to 11.For the reduction there is no reason whatever except a different estimate made by the Tahsildar and then by the Deputy Commissioner resulting in progressive reduction of the figures."8. This passage discloses the final reasoning on which the High Court allowed the appeal. The appellants learned counsel was unable to point out any error in this reasoning. From the record to which our attention has been drawn we are satisfied that the High Court was fully justified in enhancing the claim of the inamdars and it is not possible to disagree with its conclusions
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### Explanation:
At this stage it would be relevant to point out that under Rule 8(2) of the Rules framed by the Government of Mysore under Section 38 of the Act where the particulars necessary to compute the average net income under Clause (v) of(1) if Section 17 are not available shall be the average net annual income where the particulars are not available, or where the particulars appear in material respect to be incorrect, the computation of the average net annual income under Clause (v) of(1) of Section 17 is required to be made after local enquiry and on the basis of the annual income derived from similar lands situated in the samesubmission appears to be misconceived. The High Court was fully alive to the Mahazar report as is clear from the following observation in its judgment:"The Deputy Commissioner actually visited the village for a local enquiry in addition to furnishing himself with information in the shape of Mahazars prepared in the locality as well as a report by the local Tahsildar. He found that the quarry was a huge one and was being worked in four or five places even during his visit. He was also quite satisfied about the fact that the jodidars were deriving a reasonably substantial income from the other items like fuel, jalli tamarind trees and grazingcontention is equally devoid of merit. Not only was this contention not raised in the High Court, there being no reference to it in the judgment under appeal, there is also ample a proof of the vouchers on the record. We find from the record that P. T. Muniswamy Gowda, the objecting inamdar, had actually appeared before the Deputy Commissioner, himself on January 10, 1964 and stated on oath ascompensation now awarded to our village is very low. The average annual income of this village was Rs.in this behalf we have produced vouchers at the time of on enquiry by thethe enquiry under this Act does not seem to us to be governed by the provisions of the Indian Evidence Act which apply to judicial proceedings in or before a Court. The Special Deputy Commissioner or the Special Tahsildar holding enquiries under the Inam Abolitian Act can by no means be described judicial proceedings in or before a Court and indeed Shri Dholakia rightly did not contend to the contrary. Now, if the technical provisions of the mode of proof as provided by the Indian Evidence Act are inapplicable then the criticism levelled by the appellant cannot possibly have any merit. Needless to add that no objection to the made of proof of the vouchers was ever before raised in these proceedings. This contention must, therefore, bepassage discloses the final reasoning on which the High Court allowed the appeal. The appellants learned counsel was unable to point out any error in this reasoning. From the record to which our attention has been drawn we are satisfied that the High Court was fully justified in enhancing the claim of the inamdars and it is not possible to disagree with its conclusions
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Alijan Nanhe Pehalwan Qureshi Vs. State Of Maharashtra | KRISHNA IYER, J. 1. We were not happy at the disposal by the High Court of a case under s. 302 I.P.C. without a speaking order. After all in so serious a crime as murder, where so severe a sentence as life imprisonment has been inflicted by the trial court and the appeal is as of right, the High Court must indicate in a reasoned judgment that it has applied its mind to the material questions of fact and law. A judgment may be brief but not a blank, especially in a situation such as this. For this reason we should have straightaway set aside the judgment of the High Court and sent it back for fresh hearing, but under Article 136 where justice is the paramount consideration we wanted to reduce the delay in the proceedings since there is a sentence of life imprisonment on the petitioner so we directed that the original record be sent for so that counsel on both sides may have the opportunity to peruse the entire case records and make submissions to us as if we were hearing the appeal in the regular course. Counsel have had that facility and have made submissions after perusal of the materials. After a brief hearing counsel for the petitioner was unable to demonstrate that the trial courts judgment was vitiated by any flaw in appreciation of evidence or assessment of probabilities. | 0[ds]A judgment may be brief but not a blank, especially in a situation such as this. For this reason we should have straightaway set aside the judgment of the High Court and sent it back for fresh hearing, but under Article 136 where justice is the paramount consideration we wanted to reduce the delay in the proceedings since there is a sentence of life imprisonment on the petitioner so we directed that the original record be sent for so that counsel on both sides may have the opportunity to peruse the entire case records and make submissions to us as if we were hearing the appeal in the regular course. Counsel have had that facility and have made submissions after perusal of the materials. After a brief hearing counsel for the petitioner was unable to demonstrate that the trial courts judgment was vitiated by any flaw in appreciation of evidence or assessment of probabilities. | 0 | 248 | 164 | ### 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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KRISHNA IYER, J. 1. We were not happy at the disposal by the High Court of a case under s. 302 I.P.C. without a speaking order. After all in so serious a crime as murder, where so severe a sentence as life imprisonment has been inflicted by the trial court and the appeal is as of right, the High Court must indicate in a reasoned judgment that it has applied its mind to the material questions of fact and law. A judgment may be brief but not a blank, especially in a situation such as this. For this reason we should have straightaway set aside the judgment of the High Court and sent it back for fresh hearing, but under Article 136 where justice is the paramount consideration we wanted to reduce the delay in the proceedings since there is a sentence of life imprisonment on the petitioner so we directed that the original record be sent for so that counsel on both sides may have the opportunity to peruse the entire case records and make submissions to us as if we were hearing the appeal in the regular course. Counsel have had that facility and have made submissions after perusal of the materials. After a brief hearing counsel for the petitioner was unable to demonstrate that the trial courts judgment was vitiated by any flaw in appreciation of evidence or assessment of probabilities.
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### Explanation:
A judgment may be brief but not a blank, especially in a situation such as this. For this reason we should have straightaway set aside the judgment of the High Court and sent it back for fresh hearing, but under Article 136 where justice is the paramount consideration we wanted to reduce the delay in the proceedings since there is a sentence of life imprisonment on the petitioner so we directed that the original record be sent for so that counsel on both sides may have the opportunity to peruse the entire case records and make submissions to us as if we were hearing the appeal in the regular course. Counsel have had that facility and have made submissions after perusal of the materials. After a brief hearing counsel for the petitioner was unable to demonstrate that the trial courts judgment was vitiated by any flaw in appreciation of evidence or assessment of probabilities.
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The Nagpur Glass Works Limited, Nagpur City Vs. The Regional Provident Fund Commissioner & Others | support of this argument he relied upon the provisions of Sec. 83 of the Indian Trusts Act, which runs thus :"83. Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust-property, the trustee, in the absence of a direction to the contrary, must hold the trust-property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative."It is clear that the section in terms cannot apply to our present case. It cannot be said that the trust is incapable of being executed or has been completely executed. The most important point to be noted is that under Sec. 83 the property or so much thereof as remains unexhausted is held for the benefit of the author of the trust or his legal representative. Mr. Phadke contended that even if the section in terms does not apply to the present case the spirit underlying the section may be applicable. Assuming that the spirit underlying the section is applicable to a case where certain amounts remained unpaid to the beneficiary, still the question remains as to whether there is any person who can be called the author of the trust. Mr. Phadke suggests that the employer can be regarded as the author of the trust so far as his own contributions are concerned. We cannot persuade ourselves to accept this argument. The trust in relation to the Employees Provident Fund is not the creation of any individual. It is a statutory trust. The contributions, which an employer makes towards the Fund of the trust are not his voluntary contributions. The employer is under statutory obligation to make those contributions. The employer, therefore, cannot be called the author of the trust without doing violence to language. In the present case the statute has provided that the moneys remaining undisbursed to the individual employees shall stand to the credit of the reserve account of the Fund. In other wards instead of the individual beneficiary the whole class of employees of a particular establishment will be the beneficiary so far as the undisbursed sums are concerned. This provision is based on the analogy of the doctrine of cypres. In our view, there is no question of the reversion of the amounts remaining undisbursed to the source from which they came. Once the contributions are made, the employer is divested of his dominion over the same. These contributions become vested in the board of trustees of the Provident Fund. All that sub-section (5) lays down is that the sums remaining undisbursed, which originally stood in the account of the individual employee would be transferred to the general reserve account of the Fund.14. Before concluding this topic reference must be made to a case reported in 1958-1 All ER 37 - Re Gillingham Bus Disaster Fund - which was cited by Mr. Phadke in the course of his argument. The facts of that case were as follows :- In December 1951, a motor vehicle ran into a column of cadets, who were marching along a road in Gillingham, killing some of them and injuring others. The mayors of Gillingham, Rochester and Chatham decided to open a memorial fund, and the town clerk of Gillingham wrote a letter to a daily newspaper referring to that decision and stating that the fund was "to be devoted, among other things, to defraying the funeral expenses, caring for the boys who may be disabled, and them to such worthy cause or causes in memory of the boys who lost their lives, as the mayor may determine". Money was contributed to the fund anonymously by means of street collections, and also, but to a smaller extent, by substantial gifts from known persons. After so much of the fund as was required to discharge the primary objects (i.e., the defraying of general expenses and the caring for disabled boys) had been spent for the benefit of the victims of the accident, application was made to the court to determine what should be done with the remainder. It was admitted that the primary objects of the Fund were not charitable. Held, the remainder of the fund was held on a resulting trust in favour of the donors because -(i) treating the town clerks letter as the instrument declaring trusts, the trust for "worthy causes" failed for uncertainty, and(ii) the defect was not cured by the Charitable Trusts (Validation) Act, 1954........We are unable to understand how this decision assists Mr. Phadke in the argument which he has advanced. It seems to have been assumed in the above case that there was an instrument declaring trust and that instrument was provided by the town clerks letter. In the present case, as pointed out, there is no instrument of trust, and the trust is a statutory one. Furthermore the words "trust for worthwhile causes" as appearing in the instrument of trust were vague and, therefore, it was held that the trust failed for uncertainty. The trust having failed, it logically follows that the amount must be held in trust for the original donors. There is no question in the present case of the trust failing for uncertainty. We must, therefore, hold that the amount remaining undisbursed to the particular employees must stand to the credit of the reserve account of the Fund as provided for in paragraph 69 of the Scheme.15. Mr. Phadke finally argued that in any case the administrative charges cannot be levied because no work of administrative character could be done or was done in respect of the contributions which have not been collected. We are unable to accept this argument. We have already held that the petitioner is liable to make his contributions for his share in respect of dearness allowance payable to the employees with effect from 1st November 1952. It that is so, the administrative charges, which are consequential upon the above payment, are admissible and, therefore, can be recovered from the employees. | 0[ds]It is not, however, disputed that the Scheme under the Act i.e."The Employees Provident Fund Scheme, 1952", has been applied to the entire area in which the petitioners factory is situate. We are not prepared to accept the proposition that the application of the Scheme must be in respect of each of the establishments. There is nothing either in the Act or in the Scheme to warrant such an assumption. If that is so, then it can hardly be disputed that the Scheme has been applied to the establishment inis, however, to be noted that paragraph 26 applies to an establishment to which the Employees Provident Fund Scheme, 1952, has been applied for the first time. After the application of the Scheme every employee who fulfils the conditions laid down in paragraph 26, namely, that he has completed one years service and that he is not excluded, shall be required to become a member of the Fund. That means that he will be compelled to subscribe to the Fund which has been newly applied to the establishment. No option will be left to him. All the same Mr. Phadke is right in contending that the employee does not automatically become a member but he becomes such a member only after he subscribes to the Fund, which, of course, he will be compelled to do. Paragraph 26, however, is obviously inapplicable to an establishment where there is already a Provident Fund Scheme in existence. That Scheme may be a Scheme recognised under the Indian Income-tax Act or a Scheme under the Provident Funds Act, 1925. Whatever that may be, if there is already in existence a Provident Fund Scheme then the appropriate paragraph applicable would be paragraphif the member exercises an option in favour of continuing to subscribe to the old Fund, the last proviso to paragraph 27 makes it clear that he will not be allowed to continue to subscribe to the existing Provident Fund unless the authorities are satisfied that the Provident Fund rules are in conformity with or more favourable to the employee, than those specified in the Act or the Scheme. It will thus be clear that the present case will be governed by paragraph 27 because there was already a Provident Fund Scheme in existence, under the Provident Funds Act, 1925. It is not the case of the petitioners that any of the members had exercised their option in favour of continuing to subscribe to the old Fund. If that is so, then it is clear that the employees must be deemed to have become members of the Fund established under the Provident Fund Scheme,are unable to accept this argument. Under Sec. 15(2) the accumulations in the existing Fund are statutorily transferable to the Fund established under the new Scheme. At this stage, we may set out the line of Mr. Peerbhoys reply :- Section 15(2) creates a legal fiction that the accumulation standing in the old Provident Fund stand credited to the Fund established under the new Scheme. It is true that before the accumulations in the Fund are actually transferred, it is necessary that certain steps are taken by the authorities who are in charge of that Fund and these steps have been enumerated in paragraph 28.But if the authorities in charge of the management did not take the necessary steps and kept the matter pending for years together, that does not mean that the Fund under the new Scheme has not been established, nor does it mean that the accumulations do not become vested in the new Scheme. The authorities in charge of the management cannot be allowed to take advantage of their own default. If the authorities prove intransigent then coercive process for making recovery can be started by the Government under Sec. 8 of the Act. It is not necessary to express any opinion on this part of the argument. Even assuming that Mr. Phadkes argument is correct, it will have application only so far as the accumulations are concerned. It may be that the accumulations do not vest in the new Fund so long as they have not been actually transferred and the necessary formalities in effecting the transfer have not been got through. That does not, however, mean that the Fund has not come into being or that so far as the future subscriptions are concerned the liabilities have not accrued due. The distinction suggested above is implicit in the wording of Clause (5) of paragraphour view, that does not mean that the liability to pay contributions arises only after the issue of a notification mentioned in clause (5) of paragraph 28, nor does it mean that membership of the Fund springs into existence only after the issue of the notification. It is one thing to say that the ownership in the accumulations will only become vested in the Board after the accumulations have been transferred to the new Fund and quite another to say that the Fund has not come into existence for any purposeclaim made on the petitioner in respect of contributions on the basic salary as well as the dearness allowance relates to a period from 1st November 1952 to 1st April 1955, which is the date of demand. In our view, the claim is legal and valid and it is not correct to say either that the claim is premature or that it is being made to have retrospectiveis an admitted fact that so far as the dearness allowance is concerned the employer did not make the necessary deductions from the salaries of the employees. Even so, according to the Government, the employer remains statutorily liable to make payment of the employers share of the contributions together with that of the employees. It appears that the Government had made a demand upon the petitioner-establishment on that basis. It further appears that the Government was pleased to exempt the employer from payment of the employees share of contributions so far as the dearness allowance is concerned. This exemption appears to have been granted on equitable considerations. The employer had not recovered the employees share and it was not possible for the employer to make those recoveries with retrospective effect. These considerations may have influenced the Government in allowing thein the present case the exemption granted by the Government has enured to the benefit of the employer because the employer has been exempted from making payment so far as the employees share is concerned, although under the statute the employer is responsible for not only paying his share of the contribution but also the share of theappears that the petitioner was contending that his establishment was not governed by the Provident Funds Act and the Scheme framed thereunder. Even after the decision of the High Court the petitioner seems to have continued to harbour the impression that the Scheme was not applicable with effect from 1st November 1952, and that it would come into operation after the same was extended by a notification. After a demand from him on 17th September 1957, the petitioner started correspondence with the Regional Commissioner. In his letter dated 5th February 1958 he has mentioned the ground on which he disputed his liability. The Regional Commissioner by his letter dated 11th March 1958 informed the petitioner that he may approach the Government of India for clarification since they had the authority to give a decision on disputed points. The Regional Commissioner presumably had section 19-A in his mind. In pursuance of the letter of the Regional Commissioner the petitioner sent a letter dated 18th March 1958 seeking for clarification in respect of the points raised by him. That letter does not in terms refer to Sec. 19-A but we are prepared to assume that the letter or the memorandum was made with a view to call upon the Government to decide the matter by virtue of the powers vested in them under sectionis not necessary for us to consider as to the effect of any decision taken by the Government under Sec. 19-A and whether the order of the Central Government can or cannot be challenged even under Article 226 of the Constitution. The fact remains that in the present case the Government have not taken any decision and the letters written by the petitioner have simply gone unanswered. Merely because the letters have gone unanswered in regard to a difficulty, which is of the making of the petitioner himself, it does not stand to reason to hold that the Regional Commissioner cannot enforce the demand made by him and must stay his hands till the Government have taken a final decision in that respect. In our view, the decision of the Madras High Court is not correct if it is intended to apply to the first clause, namely with regard to the difficulty in giving effect to the Act. We refrain from expressing any opinion as to whether the above decision is correct or not in so far as it relates to specific doubts arising in relation to clauses (i) to (iv), as that question does not arise in the present case, nor are we called upon to consider whether the Central Government is constituted into a tribunal or a simple administrative machinery has been created to try and settle the disputes or clear the doubts referred to in thatfar as the petitioners share in these sums is concerned according to Mr. Phadkes arguments, they must revert back to the employer.These sums cannot be forfeited as is sought to be contended by the respondents. In order to appreciate this argument it is necessary to refer to the provisions of paragraph 69 of the Employees Provident Funds Scheme,forfeiture is one of the matters for which provision can be made in the Scheme. It is not, therefore, correct to say that the provision for forfeiture exceeds the power conferred by Sec. 6 (2) or the items enumerated in Schedule II. The second line of attack against the provision of forfeiture as set out in the petition was that this provision was of an exproprietary character and, therefore, offended the provisions of Article 19 of the Constitution of India. Mr. Phadke however, did not press this aspect of the matter and, therefore, we need not consider the same.Phadke contended that even if the section in terms does not apply to the present case the spirit underlying the section may be applicable.Assuming that the spirit underlying the section is applicable to a case where certain amounts remained unpaid to the beneficiary, still the question remains as to whether there is any person who can be called the author of the trust. Mr.Phadke suggests that the employer can be regarded as the author of the trust so far as his own contributions are concerned.We cannot persuade ourselves to accept this argument. The trust in relation to the Employees Provident Fund is not the creation of any individual. It is a statutory trust. The contributions, which an employer makes towards the Fund of the trust are not his voluntary contributions. The employer is under statutory obligation to make those contributions. The employer, therefore, cannot be called the author of the trust without doing violence to language. In the present case the statute has provided that the moneys remaining undisbursed to the individual employees shall stand to the credit of the reserve account of the Fund. In other wards instead of the individual beneficiary the whole class of employees of a particular establishment will be the beneficiary so far as the undisbursed sums are concerned. This provision is based on the analogy of the doctrine of cypres. In our view, there is no question of the reversion of the amounts remaining undisbursed to the source from which they came. Once the contributions are made, the employer is divested of his dominion over the same. These contributions become vested in the board of trustees of the Provident Fund. All that sub-section (5) lays down is that the sums remaining undisbursed, which originally stood in the account of the individual employee would be transferred to the general reserve account of thethe present case, as pointed out, there is no instrument of trust, and the trust is a statutory one. Furthermore the words "trust for worthwhile causes" as appearing in the instrument of trust were vague and, therefore, it was held that the trust failed for uncertainty. The trust having failed, it logically follows that the amount must be held in trust for the original donors. There is no question in the present case of the trust failing for uncertainty. We must, therefore, hold that the amount remaining undisbursed to the particular employees must stand to the credit of the reserve account of the Fund as provided for in paragraph 69 of the Scheme.Mr. Phadke finally argued that in any case the administrative charges cannot be levied because no work of administrative character could be done or was done in respect of the contributions which have not been collected.We are unable to accept this argument. We have already held that the petitioner is liable to make his contributions for his share in respect of dearness allowance payable to the employees with effect from 1st November 1952. It that is so, the administrative charges, which are consequential upon the above payment, are admissible and, therefore, can be recovered from the employees. | 0 | 10,612 | 2,415 | ### 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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support of this argument he relied upon the provisions of Sec. 83 of the Indian Trusts Act, which runs thus :"83. Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust-property, the trustee, in the absence of a direction to the contrary, must hold the trust-property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative."It is clear that the section in terms cannot apply to our present case. It cannot be said that the trust is incapable of being executed or has been completely executed. The most important point to be noted is that under Sec. 83 the property or so much thereof as remains unexhausted is held for the benefit of the author of the trust or his legal representative. Mr. Phadke contended that even if the section in terms does not apply to the present case the spirit underlying the section may be applicable. Assuming that the spirit underlying the section is applicable to a case where certain amounts remained unpaid to the beneficiary, still the question remains as to whether there is any person who can be called the author of the trust. Mr. Phadke suggests that the employer can be regarded as the author of the trust so far as his own contributions are concerned. We cannot persuade ourselves to accept this argument. The trust in relation to the Employees Provident Fund is not the creation of any individual. It is a statutory trust. The contributions, which an employer makes towards the Fund of the trust are not his voluntary contributions. The employer is under statutory obligation to make those contributions. The employer, therefore, cannot be called the author of the trust without doing violence to language. In the present case the statute has provided that the moneys remaining undisbursed to the individual employees shall stand to the credit of the reserve account of the Fund. In other wards instead of the individual beneficiary the whole class of employees of a particular establishment will be the beneficiary so far as the undisbursed sums are concerned. This provision is based on the analogy of the doctrine of cypres. In our view, there is no question of the reversion of the amounts remaining undisbursed to the source from which they came. Once the contributions are made, the employer is divested of his dominion over the same. These contributions become vested in the board of trustees of the Provident Fund. All that sub-section (5) lays down is that the sums remaining undisbursed, which originally stood in the account of the individual employee would be transferred to the general reserve account of the Fund.14. Before concluding this topic reference must be made to a case reported in 1958-1 All ER 37 - Re Gillingham Bus Disaster Fund - which was cited by Mr. Phadke in the course of his argument. The facts of that case were as follows :- In December 1951, a motor vehicle ran into a column of cadets, who were marching along a road in Gillingham, killing some of them and injuring others. The mayors of Gillingham, Rochester and Chatham decided to open a memorial fund, and the town clerk of Gillingham wrote a letter to a daily newspaper referring to that decision and stating that the fund was "to be devoted, among other things, to defraying the funeral expenses, caring for the boys who may be disabled, and them to such worthy cause or causes in memory of the boys who lost their lives, as the mayor may determine". Money was contributed to the fund anonymously by means of street collections, and also, but to a smaller extent, by substantial gifts from known persons. After so much of the fund as was required to discharge the primary objects (i.e., the defraying of general expenses and the caring for disabled boys) had been spent for the benefit of the victims of the accident, application was made to the court to determine what should be done with the remainder. It was admitted that the primary objects of the Fund were not charitable. Held, the remainder of the fund was held on a resulting trust in favour of the donors because -(i) treating the town clerks letter as the instrument declaring trusts, the trust for "worthy causes" failed for uncertainty, and(ii) the defect was not cured by the Charitable Trusts (Validation) Act, 1954........We are unable to understand how this decision assists Mr. Phadke in the argument which he has advanced. It seems to have been assumed in the above case that there was an instrument declaring trust and that instrument was provided by the town clerks letter. In the present case, as pointed out, there is no instrument of trust, and the trust is a statutory one. Furthermore the words "trust for worthwhile causes" as appearing in the instrument of trust were vague and, therefore, it was held that the trust failed for uncertainty. The trust having failed, it logically follows that the amount must be held in trust for the original donors. There is no question in the present case of the trust failing for uncertainty. We must, therefore, hold that the amount remaining undisbursed to the particular employees must stand to the credit of the reserve account of the Fund as provided for in paragraph 69 of the Scheme.15. Mr. Phadke finally argued that in any case the administrative charges cannot be levied because no work of administrative character could be done or was done in respect of the contributions which have not been collected. We are unable to accept this argument. We have already held that the petitioner is liable to make his contributions for his share in respect of dearness allowance payable to the employees with effect from 1st November 1952. It that is so, the administrative charges, which are consequential upon the above payment, are admissible and, therefore, can be recovered from the employees.
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to give a decision on disputed points. The Regional Commissioner presumably had section 19-A in his mind. In pursuance of the letter of the Regional Commissioner the petitioner sent a letter dated 18th March 1958 seeking for clarification in respect of the points raised by him. That letter does not in terms refer to Sec. 19-A but we are prepared to assume that the letter or the memorandum was made with a view to call upon the Government to decide the matter by virtue of the powers vested in them under sectionis not necessary for us to consider as to the effect of any decision taken by the Government under Sec. 19-A and whether the order of the Central Government can or cannot be challenged even under Article 226 of the Constitution. The fact remains that in the present case the Government have not taken any decision and the letters written by the petitioner have simply gone unanswered. Merely because the letters have gone unanswered in regard to a difficulty, which is of the making of the petitioner himself, it does not stand to reason to hold that the Regional Commissioner cannot enforce the demand made by him and must stay his hands till the Government have taken a final decision in that respect. In our view, the decision of the Madras High Court is not correct if it is intended to apply to the first clause, namely with regard to the difficulty in giving effect to the Act. We refrain from expressing any opinion as to whether the above decision is correct or not in so far as it relates to specific doubts arising in relation to clauses (i) to (iv), as that question does not arise in the present case, nor are we called upon to consider whether the Central Government is constituted into a tribunal or a simple administrative machinery has been created to try and settle the disputes or clear the doubts referred to in thatfar as the petitioners share in these sums is concerned according to Mr. Phadkes arguments, they must revert back to the employer.These sums cannot be forfeited as is sought to be contended by the respondents. In order to appreciate this argument it is necessary to refer to the provisions of paragraph 69 of the Employees Provident Funds Scheme,forfeiture is one of the matters for which provision can be made in the Scheme. It is not, therefore, correct to say that the provision for forfeiture exceeds the power conferred by Sec. 6 (2) or the items enumerated in Schedule II. The second line of attack against the provision of forfeiture as set out in the petition was that this provision was of an exproprietary character and, therefore, offended the provisions of Article 19 of the Constitution of India. Mr. Phadke however, did not press this aspect of the matter and, therefore, we need not consider the same.Phadke contended that even if the section in terms does not apply to the present case the spirit underlying the section may be applicable.Assuming that the spirit underlying the section is applicable to a case where certain amounts remained unpaid to the beneficiary, still the question remains as to whether there is any person who can be called the author of the trust. Mr.Phadke suggests that the employer can be regarded as the author of the trust so far as his own contributions are concerned.We cannot persuade ourselves to accept this argument. The trust in relation to the Employees Provident Fund is not the creation of any individual. It is a statutory trust. The contributions, which an employer makes towards the Fund of the trust are not his voluntary contributions. The employer is under statutory obligation to make those contributions. The employer, therefore, cannot be called the author of the trust without doing violence to language. In the present case the statute has provided that the moneys remaining undisbursed to the individual employees shall stand to the credit of the reserve account of the Fund. In other wards instead of the individual beneficiary the whole class of employees of a particular establishment will be the beneficiary so far as the undisbursed sums are concerned. This provision is based on the analogy of the doctrine of cypres. In our view, there is no question of the reversion of the amounts remaining undisbursed to the source from which they came. Once the contributions are made, the employer is divested of his dominion over the same. These contributions become vested in the board of trustees of the Provident Fund. All that sub-section (5) lays down is that the sums remaining undisbursed, which originally stood in the account of the individual employee would be transferred to the general reserve account of thethe present case, as pointed out, there is no instrument of trust, and the trust is a statutory one. Furthermore the words "trust for worthwhile causes" as appearing in the instrument of trust were vague and, therefore, it was held that the trust failed for uncertainty. The trust having failed, it logically follows that the amount must be held in trust for the original donors. There is no question in the present case of the trust failing for uncertainty. We must, therefore, hold that the amount remaining undisbursed to the particular employees must stand to the credit of the reserve account of the Fund as provided for in paragraph 69 of the Scheme.Mr. Phadke finally argued that in any case the administrative charges cannot be levied because no work of administrative character could be done or was done in respect of the contributions which have not been collected.We are unable to accept this argument. We have already held that the petitioner is liable to make his contributions for his share in respect of dearness allowance payable to the employees with effect from 1st November 1952. It that is so, the administrative charges, which are consequential upon the above payment, are admissible and, therefore, can be recovered from the employees.
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Caltex India Limited Vs. Presiding Officer, Labour Court, And Ors | such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an inquiry held for the purpose."It is not necessary to set out the rest of S. 26 for that is not under attack.3. The contention on behalf of the appellant is that when the proviso lays down that no such notice would be necessary as is mentioned in the main part of S. 26 (1) where services are dispensed with on the charge of misconduct and the State Government is given full power to specify the nature of the misconduct which would eliminate the necessity of a notice, there is excessive delegation of its authority by the legislature in the matter of specifying the nature of such misconduct. It is urged that as the proviso stands it gives arbitrary and naked power to the State Government to specify any misconduct on proof of which notice could be dispensed with.4. We are of opinion that there is no substance in this contention. Under S. 40 of the Act, the State Government has been given the power to make rules to carry out the purposes of the Act. Clause (c) of Section 40 (2) specifically empowers the State Government to frame rules to provide for the nature of misconduct of an employee for which his services may be dispensed with without notice. By virtue of that power, the Sate Government framed R. 20 (1) which specifies as many as 11 acts which are to be created as misconduct on proof of which no notice as required by S. 26 (1) would be necessary.5. We are of opinion that there is guidance in the words of the section itself in the matter of specifying misconduct on proof of which no notice would be necessary. It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of dismissal/discharge, and (ii) minor misconducts which do not justify punishment of dismissal/discharge but may call for lesser punishments. Therefore, when the legislature indicated that the State Government will prescribe the kinds of misconduct on proof of which no notice will be required and services of an employee can be dispensed with it was clearly indicating to the State Government to include in its list of misconducts such of them as are generally understood as major misconducts which justify the dismissal/discharge of an employee. This in our opinion is sufficient guidance to the State Government to specify in the rule it was expected to make such misconduct as is generally understood in industrial law to call for the punishment of discharge/dismissal. It is difficult to see what other guidance the legislature could have given to the rule making authority in this behalf. The only other way in which the legislature could have acted would be to indicate the list of several items of misconduct in the section itself; but apparently the legislature thought that by delegating authority to the State Government the matter of what misconduct should be sufficient to dispense with notice would remain flexible and the State Government would from time to time look into the matter and see what misconduct should be prescribed for this purpose. The authority was being delegated to the State Government and that is also a consideration which the legislature might have kept in its mind when it gave this flexible power to the State Government. The legislature must have known that in industrial law misconduct is generally of two kinds [namely, (i) major misconduct justifying punishment of discharge/dismissal, and (ii) minor misconduct justifying lesser punishment], and that appears to have been thought by the legislature to be sufficient guidance to the State Government to prescribe by rule such misconduct as is major in nature and deserves punishment of discharge or dismissal. Looking at the list of several items of misconduct which have been prescribed by the State Government under R. 20 (1), we are of the opinion that the State Government also properly understood the guidance which was contained in the words of S. 26 (1) and its proviso and has prescribed a list of what are clearly major misconducts for the purpose and has also included therein by the clause "breach of the provision of the Standing Orders applicable to the establishment and certified under the Industrial Employment (Standing Orders) Act, 1946".The last clause would thus include all other major misconducts which would justify an order of dismissal/discharge. Therefore, as we read the words of S. 26 (1) and its proviso, we have no doubt that there is sufficient guidance there for the State Government to define misconduct on proof of which no notice would be necessary. Further if we look at what the State Government has done by R. 20 (1), it is clear that the State Government also rightly understood the guidance contained in the words of the section and has acted accordingly. In the circumstances we are of opinion that the proviso to S. 26 (1) is not ultra vires because of the vice of excessive delegation.6. Learned counsel for the appellant also wanted to urge that the order of the labour Court condoning delay was bad. We have not allowed him to pursue this point. It is true that the first order condoning delay made in December 1960 was ex parte; but after the writ petition was filed against that order by the appellant in the High Court, the labour Court gave an opportunity to the appellant and heard it on March 27, 1961. After hearing both parties, the labour Court confirmed the order condoning delay which it had already made. It cannot, therefore, be said now that the order was made without hearing both the parties. The High Court has not thought fit to interfere with the order condoning delay after hearing both parties made on April 4, 1961. | 0[ds]4. We are of opinion that there is no substance in this contention. Under S. 40 of the Act, the State Government has been given the power to make rules to carry out the purposes of the Act. Clause (c) of Section 40 (2) specifically empowers the State Government to frame rules to provide for the nature of misconduct of an employee for which his services may be dispensed with without notice. By virtue of that power, the Sate Government framed R. 20 (1) which specifies as many as 11 acts which are to be created as misconduct on proof of which no notice as required by S. 26 (1) would be necessary.5. We are of opinion that there is guidance in the words of the section itself in the matter of specifying misconduct on proof of which no notice would be necessary. It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of dismissal/discharge, and (ii) minor misconducts which do not justify punishment of dismissal/discharge but may call for lesser punishments. Therefore, when the legislature indicated that the State Government will prescribe the kinds of misconduct on proof of which no notice will be required and services of an employee can be dispensed with it was clearly indicating to the State Government to include in its list of misconducts such of them as are generally understood as major misconducts which justify the dismissal/discharge of an employee. This in our opinion is sufficient guidance to the State Government to specify in the rule it was expected to make such misconduct as is generally understood in industrial law to call for the punishment of discharge/dismissal. It is difficult to see what other guidance the legislature could have given to the rule making authority in this behalf. The only other way in which the legislature could have acted would be to indicate the list of several items of misconduct in the section itself; but apparently the legislature thought that by delegating authority to the State Government the matter of what misconduct should be sufficient to dispense with notice would remain flexible and the State Government would from time to time look into the matter and see what misconduct should be prescribed for this purpose. The authority was being delegated to the State Government and that is also a consideration which the legislature might have kept in its mind when it gave this flexible power to the State Government. The legislature must have known that in industrial law misconduct is generally of two kinds [namely, (i) major misconduct justifying punishment of discharge/dismissal, and (ii) minor misconduct justifying lesser punishment], and that appears to have been thought by the legislature to be sufficient guidance to the State Government to prescribe by rule such misconduct as is major in nature and deserves punishment of discharge or dismissal. Looking at the list of several items of misconduct which have been prescribed by the State Government under R. 20 (1), we are of the opinion that the State Government also properly understood the guidance which was contained in the words of S. 26 (1) and its proviso and has prescribed a list of what are clearly major misconducts for the purpose and has also included therein by the clause "breach of the provision of the Standing Orders applicable to the establishment and certified under the Industrial Employment (Standing Orders) Act, 1946".The last clause would thus include all other major misconducts which would justify an order of dismissal/discharge. Therefore, as we read the words of S. 26 (1) and its proviso, we have no doubt that there is sufficient guidance there for the State Government to define misconduct on proof of which no notice would be necessary. Further if we look at what the State Government has done by R. 20 (1), it is clear that the State Government also rightly understood the guidance contained in the words of the section and has acted accordingly. In the circumstances we are of opinion that the proviso to S. 26 (1) is not ultra vires because of the vice of excessivehave not allowed him to pursue this point. It is true that the first order condoning delay made in December 1960 was ex parte; but after the writ petition was filed against that order by the appellant in the High Court, the labour Court gave an opportunity to the appellant and heard it on March 27, 1961. After hearing both parties, the labour Court confirmed the order condoning delay which it had already made. It cannot, therefore, be said now that the order was made without hearing both the parties. The High Court has not thought fit to interfere with the order condoning delay after hearing both parties made on April 4, 1961 | 0 | 1,706 | 884 | ### 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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such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the State Government, supported by satisfactory evidence recorded at an inquiry held for the purpose."It is not necessary to set out the rest of S. 26 for that is not under attack.3. The contention on behalf of the appellant is that when the proviso lays down that no such notice would be necessary as is mentioned in the main part of S. 26 (1) where services are dispensed with on the charge of misconduct and the State Government is given full power to specify the nature of the misconduct which would eliminate the necessity of a notice, there is excessive delegation of its authority by the legislature in the matter of specifying the nature of such misconduct. It is urged that as the proviso stands it gives arbitrary and naked power to the State Government to specify any misconduct on proof of which notice could be dispensed with.4. We are of opinion that there is no substance in this contention. Under S. 40 of the Act, the State Government has been given the power to make rules to carry out the purposes of the Act. Clause (c) of Section 40 (2) specifically empowers the State Government to frame rules to provide for the nature of misconduct of an employee for which his services may be dispensed with without notice. By virtue of that power, the Sate Government framed R. 20 (1) which specifies as many as 11 acts which are to be created as misconduct on proof of which no notice as required by S. 26 (1) would be necessary.5. We are of opinion that there is guidance in the words of the section itself in the matter of specifying misconduct on proof of which no notice would be necessary. It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of dismissal/discharge, and (ii) minor misconducts which do not justify punishment of dismissal/discharge but may call for lesser punishments. Therefore, when the legislature indicated that the State Government will prescribe the kinds of misconduct on proof of which no notice will be required and services of an employee can be dispensed with it was clearly indicating to the State Government to include in its list of misconducts such of them as are generally understood as major misconducts which justify the dismissal/discharge of an employee. This in our opinion is sufficient guidance to the State Government to specify in the rule it was expected to make such misconduct as is generally understood in industrial law to call for the punishment of discharge/dismissal. It is difficult to see what other guidance the legislature could have given to the rule making authority in this behalf. The only other way in which the legislature could have acted would be to indicate the list of several items of misconduct in the section itself; but apparently the legislature thought that by delegating authority to the State Government the matter of what misconduct should be sufficient to dispense with notice would remain flexible and the State Government would from time to time look into the matter and see what misconduct should be prescribed for this purpose. The authority was being delegated to the State Government and that is also a consideration which the legislature might have kept in its mind when it gave this flexible power to the State Government. The legislature must have known that in industrial law misconduct is generally of two kinds [namely, (i) major misconduct justifying punishment of discharge/dismissal, and (ii) minor misconduct justifying lesser punishment], and that appears to have been thought by the legislature to be sufficient guidance to the State Government to prescribe by rule such misconduct as is major in nature and deserves punishment of discharge or dismissal. Looking at the list of several items of misconduct which have been prescribed by the State Government under R. 20 (1), we are of the opinion that the State Government also properly understood the guidance which was contained in the words of S. 26 (1) and its proviso and has prescribed a list of what are clearly major misconducts for the purpose and has also included therein by the clause "breach of the provision of the Standing Orders applicable to the establishment and certified under the Industrial Employment (Standing Orders) Act, 1946".The last clause would thus include all other major misconducts which would justify an order of dismissal/discharge. Therefore, as we read the words of S. 26 (1) and its proviso, we have no doubt that there is sufficient guidance there for the State Government to define misconduct on proof of which no notice would be necessary. Further if we look at what the State Government has done by R. 20 (1), it is clear that the State Government also rightly understood the guidance contained in the words of the section and has acted accordingly. In the circumstances we are of opinion that the proviso to S. 26 (1) is not ultra vires because of the vice of excessive delegation.6. Learned counsel for the appellant also wanted to urge that the order of the labour Court condoning delay was bad. We have not allowed him to pursue this point. It is true that the first order condoning delay made in December 1960 was ex parte; but after the writ petition was filed against that order by the appellant in the High Court, the labour Court gave an opportunity to the appellant and heard it on March 27, 1961. After hearing both parties, the labour Court confirmed the order condoning delay which it had already made. It cannot, therefore, be said now that the order was made without hearing both the parties. The High Court has not thought fit to interfere with the order condoning delay after hearing both parties made on April 4, 1961.
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4. We are of opinion that there is no substance in this contention. Under S. 40 of the Act, the State Government has been given the power to make rules to carry out the purposes of the Act. Clause (c) of Section 40 (2) specifically empowers the State Government to frame rules to provide for the nature of misconduct of an employee for which his services may be dispensed with without notice. By virtue of that power, the Sate Government framed R. 20 (1) which specifies as many as 11 acts which are to be created as misconduct on proof of which no notice as required by S. 26 (1) would be necessary.5. We are of opinion that there is guidance in the words of the section itself in the matter of specifying misconduct on proof of which no notice would be necessary. It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of dismissal/discharge, and (ii) minor misconducts which do not justify punishment of dismissal/discharge but may call for lesser punishments. Therefore, when the legislature indicated that the State Government will prescribe the kinds of misconduct on proof of which no notice will be required and services of an employee can be dispensed with it was clearly indicating to the State Government to include in its list of misconducts such of them as are generally understood as major misconducts which justify the dismissal/discharge of an employee. This in our opinion is sufficient guidance to the State Government to specify in the rule it was expected to make such misconduct as is generally understood in industrial law to call for the punishment of discharge/dismissal. It is difficult to see what other guidance the legislature could have given to the rule making authority in this behalf. The only other way in which the legislature could have acted would be to indicate the list of several items of misconduct in the section itself; but apparently the legislature thought that by delegating authority to the State Government the matter of what misconduct should be sufficient to dispense with notice would remain flexible and the State Government would from time to time look into the matter and see what misconduct should be prescribed for this purpose. The authority was being delegated to the State Government and that is also a consideration which the legislature might have kept in its mind when it gave this flexible power to the State Government. The legislature must have known that in industrial law misconduct is generally of two kinds [namely, (i) major misconduct justifying punishment of discharge/dismissal, and (ii) minor misconduct justifying lesser punishment], and that appears to have been thought by the legislature to be sufficient guidance to the State Government to prescribe by rule such misconduct as is major in nature and deserves punishment of discharge or dismissal. Looking at the list of several items of misconduct which have been prescribed by the State Government under R. 20 (1), we are of the opinion that the State Government also properly understood the guidance which was contained in the words of S. 26 (1) and its proviso and has prescribed a list of what are clearly major misconducts for the purpose and has also included therein by the clause "breach of the provision of the Standing Orders applicable to the establishment and certified under the Industrial Employment (Standing Orders) Act, 1946".The last clause would thus include all other major misconducts which would justify an order of dismissal/discharge. Therefore, as we read the words of S. 26 (1) and its proviso, we have no doubt that there is sufficient guidance there for the State Government to define misconduct on proof of which no notice would be necessary. Further if we look at what the State Government has done by R. 20 (1), it is clear that the State Government also rightly understood the guidance contained in the words of the section and has acted accordingly. In the circumstances we are of opinion that the proviso to S. 26 (1) is not ultra vires because of the vice of excessivehave not allowed him to pursue this point. It is true that the first order condoning delay made in December 1960 was ex parte; but after the writ petition was filed against that order by the appellant in the High Court, the labour Court gave an opportunity to the appellant and heard it on March 27, 1961. After hearing both parties, the labour Court confirmed the order condoning delay which it had already made. It cannot, therefore, be said now that the order was made without hearing both the parties. The High Court has not thought fit to interfere with the order condoning delay after hearing both parties made on April 4, 1961
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Laxman Balkrishna Joshi Vs. Trimbak Bapu Godbole And Anr | the High Court perused several medical works, drew inspiration and raised inferences therefrom instead of relying on Dr. Gharpures evidence, an expert examined by the respondents. We do not see anything wrong in the High Court relying on medical works and deriving assistance from diem. His criticism that the High Court did not consider Dr. Gharpures evidence is also not correct. There was nothing wrong in the High Court emphasising the opinions of authors of these works instead of basing its conclusions on Dr. Gharpures evidence as it was alleged that that doctor was a professional rival of the appellant and was, therefore, unsympathetic towards him. From the elaborate analysis of the evidence by both the trial court and the High Court, it is impossible to say that they did not consider the evidence before them or that their findings were the result of conjectures or surmises, or inferences unwarranted by that evidence. We would not, therefore, be justified in reopening those concurrent findings or reappraising the evidence. 16. As regards the cause of death, the respondents case was that the boys condition was satisfactory at the time he was admitted in the appellants hospital; that if fat embolism was the cause of death, it was due to the heavy traction and excessive force resorted to by the appellant without administering anaesthetic to the boy. The appellants case, on the other hand, was that fat embolism must have set in right from the time of the accident or must have been caused on account of improper or inadequate immobilisation of the leg at Palshet and the hazards of the long journey in the taxi and that the boy died, therefore, of cerebral embolism. In the death certificate issued by him, the appellant no doubt had stated that the cause of death was cerebral embolism. It is true that some medical authors have mentioned that fat embolism is seldom recognised clinically and is the cause of death in over twenty per cent of fatal fracture cases. But these authors have also stated that diagnosis of fat embolism can be made if certain physical signs are deliberately sought by the doctor. Mental disturbance and alteration of coma with full consciousness occurring some hours after a major bone injury should put the surgeon on guard. He should examine the neck and upper trunk for petechial haemorrhages. He should turn down the lower lid of the eye to see petechiae; very occasionally there would be fat in the sputum or in the urine, though these are not reliable signs. In British Surgical Practice, Vol. 3, (1948 ed). p. 378, it is stated,"a fracture of a long bone is the most important cause of fat embolism, and there is an interval usually of 12 - 48 hours between the injury and onset of symptoms during which the fat passes from the contused and lacerated marrow to the lungs in sufficient quantity to produce effects." * * * * * "The characteristic and bizarre behaviour noted in association with multiple cerebral fatty emboli usually begins within 2 or 3 days of the injury. The preceding pulmonary symptoms may be overlooked, especially in a seriously injured patient. The patient is apathetic and confused, answering simple questions with difficulty; soon he becomes completely incoherent. Some hours later delirium sets in, often alternating with stupor and progressing to coma. During the delirious phase the patient may be violent." In an article in the Journal of Bone Joint Surgery by Newman, (Ext 291), the author observes that the typical clinical picture is that of a man in the third or fourth decade who in consequence of a road accident has sustained fracture of the femur and is admitted to hospital perhaps after a long and rough journey with the limb improperly immobilised. suffering a considerable shock. None of the symptoms noted above were found by the appellant. The appellant is a surgeon of long experience. Knowing that two days had elapsed since the accident, that the leg of the patient had not been fully or properly immobilised and that the patient had journeyed 200 miles in a taxi before coming to him, if he had felt that there was a possibility of fat embolism having set in, he would surely have looked for the signs. At any rate, if he had thought that there was some such possibility, he would surely have warned respondent 1, especially as he happened to be a doctor also of long standing. The evidence shows that the symptoms suggested in the aforesaid passages were not noticed by the appellant or respondent 1. The assurance that the appellant gave to respondent 1 which induced the latter to return to Dhond, the appellants apologetic letter of July 17, 1953 in which he confessed that he had even then not been able to gauge the reasons for the boys death, the fact that while giving treatment to the boy after 6-30 P. M. he did not look for the symptoms above-mentioned, all go to indicate that in order to screen the real cause of death, namely, shock resulting from his treatment, he had hit upon the theory of cerebral embolism and tried to bolster it up by stating that it must have set in right from the time the accident occurred. The aforesaid letter furnishes a clear indication that he was not definite even at that stage that death was the result of embolism or that even if it was so, it was due to the reasons which he later put forward. 17. In our view, there is no reason to think that the High Court was wrong in its conclusion that death was due to shock resulting from reduction of the fracture attempted by the appellant without taking the elementary caution of giving anaesthetic to the patient. The trial court and the High Court were, therefore, right in holding at the appellant was guilty of negligence and wrongful acts towards the patient and was liable for damages. | 0[ds]8. As regards the appellants case that be had decided to delay the reduction of the fracture and that he would merely immobilise the patients leg for the time being with light traction, the High Court agreed with the trial court that that case also was not true. The injury was a simple fracture. The reasons given by the appellant for his decision to delay the reduction were that (1) there was swelling on the thigh, (2) that two days had elapsed since the accident, (3) that there was no urgency for reduction and (4) that the boy was exhausted on account of the long journey. The High Court observed that there could not have been swelling at that time for neither the clinical notes, Ext. 213, nor the case paper, Ext. 262, mentioned swelling or any other symptom which called for delayed reduction. Ext. 262 merely mentioned one morphia injection, one x-ray photograph and putting the leg in plaster of paris. The reference to one x-ray photo was obviously incorrect as actually two such photos were taken. This error crept in because the case paper, Ext. 262 was prepared by Dr. Irani some days after the boys death after the x-ray plates had been handed over on demand to respondent 1 and, therefore, were not before her when she prepared Ext. 262. Her evidence that she had prepared that exhibit that very night was held unreliable. Exhibit. 262, besides, was a loose sheet which did not even contain either the name of the appellant or his hospital. It was impossible that a hospital of that standing would not have printed forms for clinical diagnosis9. The next conclusion that the High Court reached was that if the appellant had come to a decision to postpone reduction of the fracture on account of the reasons given by him in his evidence he would have noted in the clinical chart Ext. 213 or the clinical paper, Ext. 262 the symptoms which impelled him to that decision. The High Court agreed that the medical text books produced before it seemed to suggest that where time has elapsed since the occurrence of the fracture and the patient has arrived after a long journey, deferred reduction is advisable. But the High Court observed, the question was whether the appellant did defer the reduction and performed only immobilisation to give rest to the injured leg. After analysing the evidence, it came to the conclusion that what the appellant actually did was to reduce the fracture, that in doing so he did not care to give anaesthetic to the patient, that he contented himself with a single morphia injection, that he used excessive force in going through this treatment, using three of his attendants for pulling the injured leg of the patient, that he put that leg in plaster of paris splints, that it was this treatment which resulted in shock causing the patients death, and lastly, that the appellants case that the boy died of cerebral embolism was merely a cloak used for suppressing the real cause of death, viz. shock10. These findings being concurrent, this Court, according to its well established practice, would not ordinarily interfere with them. But Mr. Purshottam urged that this was a case when we should reopen the findings, concurrent though they were, and reappraise the evidence as the courts below have arrived at them on a misunderstanding of the evidence and on mere conjectures and surmises. In order to persuade us to do so, he took us through the important parts of the evidence. Having considered that evidence and the submissions urged by him, we have come to the conclusion that no grounds are made out which could call for our interference with those findings12. While considering the rival cases of the parties, it is necessary to bear in mind that respondent 1 is a medical practitioner of considerable standing and though not an expert in surgery, he is not a layman who would not understand the treatment which the appellant gave to the boy. It is not in dispute that he was present all throughout and saw what was being done, first in the X-ray room and later in the operation theatre. The trial court and the High Court had before them his version on the one hand and that of the appellant on the other and if they both found that his version was more acceptable and consistent with the facts and circumstances of the case than that of the appellant, it would scarcely be legitimate to say that they acted on sheer conjecture or surmise16. As regards the cause of death, the respondents case was that the boys condition was satisfactory at the time he was admitted in the appellants hospital; that if fat embolism was the cause of death, it was due to the heavy traction and excessive force resorted to by the appellant without administering anaesthetic to the boy. The appellants case, on the other hand, was that fat embolism must have set in right from the time of the accident or must have been caused on account of improper or inadequate immobilisation of the leg at Palshet and the hazards of the long journey in the taxi and that the boy died, therefore, of cerebral embolism. In the death certificate issued by him, the appellant no doubt had stated that the cause of death was cerebral embolism. It is true that some medical authors have mentioned that fat embolism is seldom recognised clinically and is the cause of death in over twenty per cent of fatal fracture cases. But these authors have also stated that diagnosis of fat embolism can be made if certain physical signs are deliberately sought by the doctor. Mental disturbance and alteration of coma with full consciousness occurring some hours after a major bone injury should put the surgeon on guard. He should examine the neck and upper trunk for petechial haemorrhages. He should turn down the lower lid of the eye to see petechiae; very occasionally there would be fat in the sputum or in the urine, though these are not reliable signs17. In our view, there is no reason to think that the High Court was wrong in its conclusion that death was due to shock resulting from reduction of the fracture attempted by the appellant without taking the elementary caution of giving anaesthetic to the patient. The trial court and the High Court were, therefore, right in holding at the appellant was guilty of negligence and wrongful acts towards the patient and was liable for damages. | 0 | 5,693 | 1,202 | ### Instruction:
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the High Court perused several medical works, drew inspiration and raised inferences therefrom instead of relying on Dr. Gharpures evidence, an expert examined by the respondents. We do not see anything wrong in the High Court relying on medical works and deriving assistance from diem. His criticism that the High Court did not consider Dr. Gharpures evidence is also not correct. There was nothing wrong in the High Court emphasising the opinions of authors of these works instead of basing its conclusions on Dr. Gharpures evidence as it was alleged that that doctor was a professional rival of the appellant and was, therefore, unsympathetic towards him. From the elaborate analysis of the evidence by both the trial court and the High Court, it is impossible to say that they did not consider the evidence before them or that their findings were the result of conjectures or surmises, or inferences unwarranted by that evidence. We would not, therefore, be justified in reopening those concurrent findings or reappraising the evidence. 16. As regards the cause of death, the respondents case was that the boys condition was satisfactory at the time he was admitted in the appellants hospital; that if fat embolism was the cause of death, it was due to the heavy traction and excessive force resorted to by the appellant without administering anaesthetic to the boy. The appellants case, on the other hand, was that fat embolism must have set in right from the time of the accident or must have been caused on account of improper or inadequate immobilisation of the leg at Palshet and the hazards of the long journey in the taxi and that the boy died, therefore, of cerebral embolism. In the death certificate issued by him, the appellant no doubt had stated that the cause of death was cerebral embolism. It is true that some medical authors have mentioned that fat embolism is seldom recognised clinically and is the cause of death in over twenty per cent of fatal fracture cases. But these authors have also stated that diagnosis of fat embolism can be made if certain physical signs are deliberately sought by the doctor. Mental disturbance and alteration of coma with full consciousness occurring some hours after a major bone injury should put the surgeon on guard. He should examine the neck and upper trunk for petechial haemorrhages. He should turn down the lower lid of the eye to see petechiae; very occasionally there would be fat in the sputum or in the urine, though these are not reliable signs. In British Surgical Practice, Vol. 3, (1948 ed). p. 378, it is stated,"a fracture of a long bone is the most important cause of fat embolism, and there is an interval usually of 12 - 48 hours between the injury and onset of symptoms during which the fat passes from the contused and lacerated marrow to the lungs in sufficient quantity to produce effects." * * * * * "The characteristic and bizarre behaviour noted in association with multiple cerebral fatty emboli usually begins within 2 or 3 days of the injury. The preceding pulmonary symptoms may be overlooked, especially in a seriously injured patient. The patient is apathetic and confused, answering simple questions with difficulty; soon he becomes completely incoherent. Some hours later delirium sets in, often alternating with stupor and progressing to coma. During the delirious phase the patient may be violent." In an article in the Journal of Bone Joint Surgery by Newman, (Ext 291), the author observes that the typical clinical picture is that of a man in the third or fourth decade who in consequence of a road accident has sustained fracture of the femur and is admitted to hospital perhaps after a long and rough journey with the limb improperly immobilised. suffering a considerable shock. None of the symptoms noted above were found by the appellant. The appellant is a surgeon of long experience. Knowing that two days had elapsed since the accident, that the leg of the patient had not been fully or properly immobilised and that the patient had journeyed 200 miles in a taxi before coming to him, if he had felt that there was a possibility of fat embolism having set in, he would surely have looked for the signs. At any rate, if he had thought that there was some such possibility, he would surely have warned respondent 1, especially as he happened to be a doctor also of long standing. The evidence shows that the symptoms suggested in the aforesaid passages were not noticed by the appellant or respondent 1. The assurance that the appellant gave to respondent 1 which induced the latter to return to Dhond, the appellants apologetic letter of July 17, 1953 in which he confessed that he had even then not been able to gauge the reasons for the boys death, the fact that while giving treatment to the boy after 6-30 P. M. he did not look for the symptoms above-mentioned, all go to indicate that in order to screen the real cause of death, namely, shock resulting from his treatment, he had hit upon the theory of cerebral embolism and tried to bolster it up by stating that it must have set in right from the time the accident occurred. The aforesaid letter furnishes a clear indication that he was not definite even at that stage that death was the result of embolism or that even if it was so, it was due to the reasons which he later put forward. 17. In our view, there is no reason to think that the High Court was wrong in its conclusion that death was due to shock resulting from reduction of the fracture attempted by the appellant without taking the elementary caution of giving anaesthetic to the patient. The trial court and the High Court were, therefore, right in holding at the appellant was guilty of negligence and wrongful acts towards the patient and was liable for damages.
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exhausted on account of the long journey. The High Court observed that there could not have been swelling at that time for neither the clinical notes, Ext. 213, nor the case paper, Ext. 262, mentioned swelling or any other symptom which called for delayed reduction. Ext. 262 merely mentioned one morphia injection, one x-ray photograph and putting the leg in plaster of paris. The reference to one x-ray photo was obviously incorrect as actually two such photos were taken. This error crept in because the case paper, Ext. 262 was prepared by Dr. Irani some days after the boys death after the x-ray plates had been handed over on demand to respondent 1 and, therefore, were not before her when she prepared Ext. 262. Her evidence that she had prepared that exhibit that very night was held unreliable. Exhibit. 262, besides, was a loose sheet which did not even contain either the name of the appellant or his hospital. It was impossible that a hospital of that standing would not have printed forms for clinical diagnosis9. The next conclusion that the High Court reached was that if the appellant had come to a decision to postpone reduction of the fracture on account of the reasons given by him in his evidence he would have noted in the clinical chart Ext. 213 or the clinical paper, Ext. 262 the symptoms which impelled him to that decision. The High Court agreed that the medical text books produced before it seemed to suggest that where time has elapsed since the occurrence of the fracture and the patient has arrived after a long journey, deferred reduction is advisable. But the High Court observed, the question was whether the appellant did defer the reduction and performed only immobilisation to give rest to the injured leg. After analysing the evidence, it came to the conclusion that what the appellant actually did was to reduce the fracture, that in doing so he did not care to give anaesthetic to the patient, that he contented himself with a single morphia injection, that he used excessive force in going through this treatment, using three of his attendants for pulling the injured leg of the patient, that he put that leg in plaster of paris splints, that it was this treatment which resulted in shock causing the patients death, and lastly, that the appellants case that the boy died of cerebral embolism was merely a cloak used for suppressing the real cause of death, viz. shock10. These findings being concurrent, this Court, according to its well established practice, would not ordinarily interfere with them. But Mr. Purshottam urged that this was a case when we should reopen the findings, concurrent though they were, and reappraise the evidence as the courts below have arrived at them on a misunderstanding of the evidence and on mere conjectures and surmises. In order to persuade us to do so, he took us through the important parts of the evidence. Having considered that evidence and the submissions urged by him, we have come to the conclusion that no grounds are made out which could call for our interference with those findings12. While considering the rival cases of the parties, it is necessary to bear in mind that respondent 1 is a medical practitioner of considerable standing and though not an expert in surgery, he is not a layman who would not understand the treatment which the appellant gave to the boy. It is not in dispute that he was present all throughout and saw what was being done, first in the X-ray room and later in the operation theatre. The trial court and the High Court had before them his version on the one hand and that of the appellant on the other and if they both found that his version was more acceptable and consistent with the facts and circumstances of the case than that of the appellant, it would scarcely be legitimate to say that they acted on sheer conjecture or surmise16. As regards the cause of death, the respondents case was that the boys condition was satisfactory at the time he was admitted in the appellants hospital; that if fat embolism was the cause of death, it was due to the heavy traction and excessive force resorted to by the appellant without administering anaesthetic to the boy. The appellants case, on the other hand, was that fat embolism must have set in right from the time of the accident or must have been caused on account of improper or inadequate immobilisation of the leg at Palshet and the hazards of the long journey in the taxi and that the boy died, therefore, of cerebral embolism. In the death certificate issued by him, the appellant no doubt had stated that the cause of death was cerebral embolism. It is true that some medical authors have mentioned that fat embolism is seldom recognised clinically and is the cause of death in over twenty per cent of fatal fracture cases. But these authors have also stated that diagnosis of fat embolism can be made if certain physical signs are deliberately sought by the doctor. Mental disturbance and alteration of coma with full consciousness occurring some hours after a major bone injury should put the surgeon on guard. He should examine the neck and upper trunk for petechial haemorrhages. He should turn down the lower lid of the eye to see petechiae; very occasionally there would be fat in the sputum or in the urine, though these are not reliable signs17. In our view, there is no reason to think that the High Court was wrong in its conclusion that death was due to shock resulting from reduction of the fracture attempted by the appellant without taking the elementary caution of giving anaesthetic to the patient. The trial court and the High Court were, therefore, right in holding at the appellant was guilty of negligence and wrongful acts towards the patient and was liable for damages.
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M/s. Discovery Wealth Management Services Pvt. Ltd. & Others Vs. M/s. Padmini Engineering Pvt. Ltd. & Others | price for delisting in accordance with the procedure and also enumerates the role of the stock exchange. 13. At this juncture, it is apt to refer to Clause 12.1 which provides for minimum number of shares to be acquired. The said Clause reads as follows: "12.1 Where the offer for delisting results in acceptance of a fewer number of shares than the total shares outstanding and as a consequence the public shareholding does not fall below the minimum limit specified by the listing conditions or the listing agreement, the offer shall be considered to have failed and no securities shall be acquired pursuant to such offer." 14. The submission of Mr. Bhambhani, as stated earlier, is that as pr the new guidelines the benchmark has to be 10 per cent. For the aforesaid purpose, he has highlighted Clause 40A of the Circular, i.e., conditions for continued listing. 15. Mr. Shyam Divan, learned senior counsel appearing for the respondent nos.1 and 4 and Mr. Arvind Datar, learned senior counsel appearing for SEBI, would contend that Clause 40A has to be read in conjunction with the delisting guidelines. That apart, it is contended by them that Clause 40A(i) and Clause 40A(ii) govern two different situations, and hence, the order of delisting cannot be found fault with. 16. To appreciate the rival submissions raised at the Bar, we have carefully scrutinised Clause 40A of the Circular. Be it stated, the clauses by virtue of the Circular have stood incorporated in the existing agreement. Clause 40A(i), as the language would suggest, provides that the listing company accepts the conditions to maintain a continuous basis the minimum level of non-promoter holding at the level of public shareholding as required at the time of listing. It clearly conveys the meaning that if there is a benchmark in the agreement, the same has to be maintained. Mr. Bhambhani would emphasise on Clause 40A(ii) to contend that the company has to maintain the benchmark at 10 per cent and it can only conceive of delisting if it goes below that. Mr. Datar, per contra, would submit that before the Circular was issued, certain listed companies had less than 10 per cent of non-promoter holding and, therefore, the Circular was issued that they should, within one year, bring it to 10 per cent. The aforesaid submission are to be appreciated in the context of the language employed in the Rule 19(1)(b), 2003 Guidelines and the agreement with the BSE.17. As we find, 2003 guidelines are applicable and prescribe the procedure for delisting of securities. As per the procedure prescribed, any promoter who desires delisting has to make an offer for purchase of shares in terms of clauses 8.1 to 8.3. The said exercise has to be completed within a period specified in clauses 8.1 and 8.5. The whole process has to be monitored by the Stock Exchange and the Registrar and transfer agency has to ascertain the genuineness of the physical securities tendered, etc. Clause 8.8 has its own signification. Clause 8.8 of 2003 guidelines stipulate that required level of public shareholding must fall below the level of continuous listing. Clause 12.1 of 2003 guidelines, states that the offer of delisting would fail if the public shareholding does not fall below the minimum limit specified by the listing conditions or the listing agreement. It is quite vivid that the 2003 guidelines do not prescribe or fix the required level of public shareholding of continuous listing though the said limit must be breached for an offer of delisting to succeed. It is condign to note that clause 12.1 refers to minimum limit specified by the listing condition or the listing agreement.18. As is evincible, Rule 19(2)(b) provides that at least 10% of each class or kind of securities must be offered to public for subscription through advertisement in newspaper during the time specified and the applications received pursuant to such offer should be allotted as per the conditions postulated. The proviso engrafts states that in case the company does not fulfil the conditions, it shall offer at least 25% of each of the securities to the public for subscription though advertisement in newspaper, etc. within the time stipulated. The opening words of sub-rule (2) of Rule 19 read "apart from complying with such other terms and conditions as may be laid down by a recognized stock exchange. an applicant company shall satisfy the stock exchange. These words have their own importance. It is clear that sub-rule (2) gives primacy to the terms and conditions as may be laid down by the recognized stock exchange and the company in question must satisfy the condition imposed by the stock exchange in that regard. As we find, in the instant case, as per the agreement between the company "Hella India" and BSE, the level of public shareholding fixed for continuous listing was 20%. The said limit of 20% is a higher limit. On failure of "Hella India" to maintain the level of 20%, the condition for continuous listing would be violated and breached. Public holding of 10% would not have satisfied the requirement of Rule 19(2). Therefore, when we harmoniously interpret the listing requirement i.e. the agreement with BSE with Rule 19(2) along with 2003 Guidelines, it is apparent and limpid that the condition for continuous listing would not have been followed by "Hella India", if the public shareholding had fallen below 20%. Thus, it has to be held that offer of delisting would be successful and would not fail, if the public shareholding falls below 20%. The 10% limit would not apply in view of Rule 19(2) as the said Rule recognizes the terms and conditions laid down by recognized stock exchange and stipulates that the same must be satisfied for the company to claim continuous listing.19. In view of the aforesaid analysis, we are disposed to think that the construction placed by the learned senior counsel for SEBI commends acceptation and we give the stamp of approval to the same. 20. | 0[ds]10. To appreciate the said submission of Mr. Bhambhani, scanning of certain facets of the guidelines are absolutely essential.To appreciate the rival submissions raised at the Bar, we have carefully scrutinised Clause 40A of the Circular. Be it stated, the clauses by virtue of the Circular have stood incorporated in the existing agreement. Clause 40A(i), as the language would suggest, provides that the listing company accepts the conditions to maintain a continuous basis the minimum level ofholding at the level of public shareholding as required at the time of listing. It clearly conveys the meaning that if there is a benchmark in the agreement, the same has to be maintained.17. As we find, 2003 guidelines are applicable and prescribe the procedure for delisting of securities. As per the procedure prescribed, any promoter who desires delisting has to make an offer for purchase of shares in terms of clauses 8.1 to 8.3. The said exercise has to be completed within a period specified in clauses 8.1 and 8.5. The whole process has to be monitored by the Stock Exchange and the Registrar and transfer agency has to ascertain the genuineness of the physical securities tendered, etc. Clause 8.8 has its own signification. Clause 8.8 of 2003 guidelines stipulate that required level of public shareholding must fall below the level of continuous listing. Clause 12.1 of 2003 guidelines, states that the offer of delisting would fail if the public shareholding does not fall below the minimum limit specified by the listing conditions or the listing agreement. It is quite vivid that the 2003 guidelines do not prescribe or fix the required level of public shareholding of continuous listing though the said limit must be breached for an offer of delisting to succeed. It is condign to note that clause 12.1 refers to minimum limit specified by the listing condition or the listing agreement.18. As is evincible, Rule 19(2)(b) provides that at least 10% of each class or kind of securities must be offered to public for subscription through advertisement in newspaper during the time specified and the applications received pursuant to such offer should be allotted as per the conditions postulated. The proviso engrafts states that in case the company does not fulfil the conditions, it shall offer at least 25% of each of the securities to the public for subscription though advertisement in newspaper, etc. within the time stipulated. The opening words of(2) of Rule 19 read "apart from complying with such other terms and conditions as may be laid down by a recognized stock exchange. an applicant company shall satisfy the stock exchange. These words have their own importance. It is clear that(2) gives primacy to the terms and conditions as may be laid down by the recognized stock exchange and the company in question must satisfy the condition imposed by the stock exchange in that regard. As we find, in the instant case, as per the agreement between the company "Hella India" and BSE, the level of public shareholding fixed for continuous listing was 20%. The said limit of 20% is a higher limit. On failure of "Hella India" to maintain the level of 20%, the condition for continuous listing would be violated and breached. Public holding of 10% would not have satisfied the requirement of Rule 19(2). Therefore, when we harmoniously interpret the listing requirement i.e. the agreement with BSE with Rule 19(2) along with 2003 Guidelines, it is apparent and limpid that the condition for continuous listing would not have been followed by "Hella India", if the public shareholding had fallen below 20%. Thus, it has to be held that offer of delisting would be successful and would not fail, if the public shareholding falls below 20%. The 10% limit would not apply in view of Rule 19(2) as the said Rule recognizes the terms and conditions laid down by recognized stock exchange and stipulates that the same must be satisfied for the company to claim continuous listing.19. In view of the aforesaid analysis, we are disposed to think that the construction placed by the learned senior counsel for SEBI commends acceptation and we give the stamp of approval to theaforesaid submission are to be appreciated in the context of the language employed in the Rule 19(1)(b), 2003 Guidelines and the agreement with the BSE. | 0 | 3,498 | 822 | ### Instruction:
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price for delisting in accordance with the procedure and also enumerates the role of the stock exchange. 13. At this juncture, it is apt to refer to Clause 12.1 which provides for minimum number of shares to be acquired. The said Clause reads as follows: "12.1 Where the offer for delisting results in acceptance of a fewer number of shares than the total shares outstanding and as a consequence the public shareholding does not fall below the minimum limit specified by the listing conditions or the listing agreement, the offer shall be considered to have failed and no securities shall be acquired pursuant to such offer." 14. The submission of Mr. Bhambhani, as stated earlier, is that as pr the new guidelines the benchmark has to be 10 per cent. For the aforesaid purpose, he has highlighted Clause 40A of the Circular, i.e., conditions for continued listing. 15. Mr. Shyam Divan, learned senior counsel appearing for the respondent nos.1 and 4 and Mr. Arvind Datar, learned senior counsel appearing for SEBI, would contend that Clause 40A has to be read in conjunction with the delisting guidelines. That apart, it is contended by them that Clause 40A(i) and Clause 40A(ii) govern two different situations, and hence, the order of delisting cannot be found fault with. 16. To appreciate the rival submissions raised at the Bar, we have carefully scrutinised Clause 40A of the Circular. Be it stated, the clauses by virtue of the Circular have stood incorporated in the existing agreement. Clause 40A(i), as the language would suggest, provides that the listing company accepts the conditions to maintain a continuous basis the minimum level of non-promoter holding at the level of public shareholding as required at the time of listing. It clearly conveys the meaning that if there is a benchmark in the agreement, the same has to be maintained. Mr. Bhambhani would emphasise on Clause 40A(ii) to contend that the company has to maintain the benchmark at 10 per cent and it can only conceive of delisting if it goes below that. Mr. Datar, per contra, would submit that before the Circular was issued, certain listed companies had less than 10 per cent of non-promoter holding and, therefore, the Circular was issued that they should, within one year, bring it to 10 per cent. The aforesaid submission are to be appreciated in the context of the language employed in the Rule 19(1)(b), 2003 Guidelines and the agreement with the BSE.17. As we find, 2003 guidelines are applicable and prescribe the procedure for delisting of securities. As per the procedure prescribed, any promoter who desires delisting has to make an offer for purchase of shares in terms of clauses 8.1 to 8.3. The said exercise has to be completed within a period specified in clauses 8.1 and 8.5. The whole process has to be monitored by the Stock Exchange and the Registrar and transfer agency has to ascertain the genuineness of the physical securities tendered, etc. Clause 8.8 has its own signification. Clause 8.8 of 2003 guidelines stipulate that required level of public shareholding must fall below the level of continuous listing. Clause 12.1 of 2003 guidelines, states that the offer of delisting would fail if the public shareholding does not fall below the minimum limit specified by the listing conditions or the listing agreement. It is quite vivid that the 2003 guidelines do not prescribe or fix the required level of public shareholding of continuous listing though the said limit must be breached for an offer of delisting to succeed. It is condign to note that clause 12.1 refers to minimum limit specified by the listing condition or the listing agreement.18. As is evincible, Rule 19(2)(b) provides that at least 10% of each class or kind of securities must be offered to public for subscription through advertisement in newspaper during the time specified and the applications received pursuant to such offer should be allotted as per the conditions postulated. The proviso engrafts states that in case the company does not fulfil the conditions, it shall offer at least 25% of each of the securities to the public for subscription though advertisement in newspaper, etc. within the time stipulated. The opening words of sub-rule (2) of Rule 19 read "apart from complying with such other terms and conditions as may be laid down by a recognized stock exchange. an applicant company shall satisfy the stock exchange. These words have their own importance. It is clear that sub-rule (2) gives primacy to the terms and conditions as may be laid down by the recognized stock exchange and the company in question must satisfy the condition imposed by the stock exchange in that regard. As we find, in the instant case, as per the agreement between the company "Hella India" and BSE, the level of public shareholding fixed for continuous listing was 20%. The said limit of 20% is a higher limit. On failure of "Hella India" to maintain the level of 20%, the condition for continuous listing would be violated and breached. Public holding of 10% would not have satisfied the requirement of Rule 19(2). Therefore, when we harmoniously interpret the listing requirement i.e. the agreement with BSE with Rule 19(2) along with 2003 Guidelines, it is apparent and limpid that the condition for continuous listing would not have been followed by "Hella India", if the public shareholding had fallen below 20%. Thus, it has to be held that offer of delisting would be successful and would not fail, if the public shareholding falls below 20%. The 10% limit would not apply in view of Rule 19(2) as the said Rule recognizes the terms and conditions laid down by recognized stock exchange and stipulates that the same must be satisfied for the company to claim continuous listing.19. In view of the aforesaid analysis, we are disposed to think that the construction placed by the learned senior counsel for SEBI commends acceptation and we give the stamp of approval to the same. 20.
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### Explanation:
10. To appreciate the said submission of Mr. Bhambhani, scanning of certain facets of the guidelines are absolutely essential.To appreciate the rival submissions raised at the Bar, we have carefully scrutinised Clause 40A of the Circular. Be it stated, the clauses by virtue of the Circular have stood incorporated in the existing agreement. Clause 40A(i), as the language would suggest, provides that the listing company accepts the conditions to maintain a continuous basis the minimum level ofholding at the level of public shareholding as required at the time of listing. It clearly conveys the meaning that if there is a benchmark in the agreement, the same has to be maintained.17. As we find, 2003 guidelines are applicable and prescribe the procedure for delisting of securities. As per the procedure prescribed, any promoter who desires delisting has to make an offer for purchase of shares in terms of clauses 8.1 to 8.3. The said exercise has to be completed within a period specified in clauses 8.1 and 8.5. The whole process has to be monitored by the Stock Exchange and the Registrar and transfer agency has to ascertain the genuineness of the physical securities tendered, etc. Clause 8.8 has its own signification. Clause 8.8 of 2003 guidelines stipulate that required level of public shareholding must fall below the level of continuous listing. Clause 12.1 of 2003 guidelines, states that the offer of delisting would fail if the public shareholding does not fall below the minimum limit specified by the listing conditions or the listing agreement. It is quite vivid that the 2003 guidelines do not prescribe or fix the required level of public shareholding of continuous listing though the said limit must be breached for an offer of delisting to succeed. It is condign to note that clause 12.1 refers to minimum limit specified by the listing condition or the listing agreement.18. As is evincible, Rule 19(2)(b) provides that at least 10% of each class or kind of securities must be offered to public for subscription through advertisement in newspaper during the time specified and the applications received pursuant to such offer should be allotted as per the conditions postulated. The proviso engrafts states that in case the company does not fulfil the conditions, it shall offer at least 25% of each of the securities to the public for subscription though advertisement in newspaper, etc. within the time stipulated. The opening words of(2) of Rule 19 read "apart from complying with such other terms and conditions as may be laid down by a recognized stock exchange. an applicant company shall satisfy the stock exchange. These words have their own importance. It is clear that(2) gives primacy to the terms and conditions as may be laid down by the recognized stock exchange and the company in question must satisfy the condition imposed by the stock exchange in that regard. As we find, in the instant case, as per the agreement between the company "Hella India" and BSE, the level of public shareholding fixed for continuous listing was 20%. The said limit of 20% is a higher limit. On failure of "Hella India" to maintain the level of 20%, the condition for continuous listing would be violated and breached. Public holding of 10% would not have satisfied the requirement of Rule 19(2). Therefore, when we harmoniously interpret the listing requirement i.e. the agreement with BSE with Rule 19(2) along with 2003 Guidelines, it is apparent and limpid that the condition for continuous listing would not have been followed by "Hella India", if the public shareholding had fallen below 20%. Thus, it has to be held that offer of delisting would be successful and would not fail, if the public shareholding falls below 20%. The 10% limit would not apply in view of Rule 19(2) as the said Rule recognizes the terms and conditions laid down by recognized stock exchange and stipulates that the same must be satisfied for the company to claim continuous listing.19. In view of the aforesaid analysis, we are disposed to think that the construction placed by the learned senior counsel for SEBI commends acceptation and we give the stamp of approval to theaforesaid submission are to be appreciated in the context of the language employed in the Rule 19(1)(b), 2003 Guidelines and the agreement with the BSE.
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Union Of India Vs. Ahmedabad Electricity Co.Ltd. | been gone into by the authorities concerned and therefore it is too late for us to go into all this. 35. Applying the tests laid down in these judgments, it is not possible to say that cinder satisfies the requirement of being manufactured in India. 36. From the above discussion it is clear that to be subjected to levy of excise duty excisable goods must be produced or manufactured in India. For being produced and manufactured in India the raw material should have gone through the process of transformation into a new product by skillful manipulation. Excise duty is an incidence of manufacture and, therefore, it is essential that the product sought to excise duty should have gone through the process of manufacture. Cinder cannot be said to have gone through any process of manufacture, therefore, it cannot be subjected to levy of excise duty. 37. The onus to show that particular goods on which excise duty is sought to be levied have gone through the process of manufacture in India is on the revenue. They have done nothing to discharge this onus. For this reason alone they must fail. 38. The Department has been consistently taking a stand that cinder is not excisable as it does not involve any manufacturing activity. The Department issued a clarification vide Circular No. B. 352/75-TRU (pt) dated 6th June 1975. According to it coal ash left out in burning of coal would not attract duty under item 68 for the reason that in the burning of coal as fuel, resulting in coal ash as a waste product no manufacturing process is involved. With the introduction of the new tariff in 1986 and specific entry for ash being included in the Tariff Chapter 26, the issue again revived. Notification No. 76/86 dated 10th February, 1986 exempted cinder from levy of excise duty. The whole thing was sought to be overturned after the annual budget for the year 1996-97. The Tariff Act, 1975 was amended by virtue of the Tariff Act, 1985. The exemption was withdrawn by virtue of notification No.11/96 dated 23rd July, 1996 in view of the annual budget for the year 1996-97. The Commissioner of Central Excise vide Trade Notice No. 35 of 1998 dated 21st August, 1998 clarified that coal ash (cinder) is specified in the Schedule to the Tariff Act and read with Section 2(d) of the Central Excise Act was subject to levy of excised duty. This sudden turn is not only unjustified but also is contrary to law. 39. Why we say it is contrary to law is because the department clarified in June, 1975 that cinder is not exigible to excise duty as in its emergence no manufacturing process is involved. How can suddenly cinder become exigible to excise duty? The procedures which lead to emergence of cinder have remained the same as they were in 1975. It is was not the result of manufacturing process in 1975, it is not so even now. This aspect was not taken into consideration at all. Interestingly in the Circular No. 386/19/98-CX dated 7th April, 1998 the Central Board of Excise and Customs while declaring coal ash (cinder) as subject to levy of excise duty, states that the commodity also satisfied the tests of marketability and has a distinct commercial identity known to trade". There is no reference to the essential test of being manufactured in India. It is for falling this test that the item was excluded from levy of excise duty earlier in 1975 How can you ignore it now? 40. In view of our finding that cinder cannot be subjected to levy of excise duty because it is not an item of goods which has been subjected to process of manufacture, it is not necessary for us to go into any other point. We may only note that courts have evolved another test of marketability i.e. to be exigible to excise duty goods must be marketable. It is not disputed that cinder is being sold by the accessees. But can it be said to be marketable goods in the sense word marketable is used? We doubt it. However, this need not detain us since cinder does not satisfy the test of being manufactured in India. Even if it is saleable, it does not make any difference. The result is that the contention of the Revenue that cinder is liable to payment of excise duty is hereby rejected. Point 3 41. The objection is that the High Court should not have entertained a petition under Article 226 of the Constitution of India in the facts and circumstances of the case. At the outset we may note that was have only one Civil Appeal in the case of Ahmedabad Electricity Company (C.A. No. 2168-69/2001) which is arising from proceedings before the High Court under Article 226. The remaining matters in the bunch are statutory appeals under Section 35L of Central Excise Act. Therefore, this court has to go into the matter on merits. Moreover, in the Ahmedabad Electricity Companys case challenge by way of Writ Petition under Article 226 was to a Circular dated 7th April, 1998 issued by the Central Board of Excise and Customs and the consequential Trade Notice No. 36/98 dated 22nd May, 1998 issued by the office of the Commissioner of Central Excise and Customs, Ahmedabad by which it was clarified that coal-ash (cinder)" is an excisable commodity classifiable under sub-heading No. 26.21 of the Central Excise Tariff Act, 1985. In the first place no objection regarding maintainability of the Writ Petition seems to have been taken before the High Court. Even if such an objection was raised, the same would have been a futile attempt. In the facts of the case the High Court would have been justified in rejecting such an objection. The impugned circular could not have been challenged before the departmental authorities as they would have felt bound by it. We find no merit in the objection. The same is rejected. | 0[ds]. A close look at Section 3 of the Central Excise Act shows that the words excisable goods have been qualified by the words which are produced or manufactured in India". Therefore, simply because goods find mention in one of the entries of the First Schedule does not mean that they become liable for payment of excise duty. Goods have to satisfy the test of being produced or manufactured in India. It is settled law that excise duty is a duty levied on manufacture of goods. Unless goods are manufactured in India, they cannot be subjected to payment of excise duty. There is no merit in the argument that simply because a particular item is mentioned in the First Schedule, it becomes exigible to excise duty. (See Hyderabad Industries Ltd. and another vs. Union of India and others (1995) 5 SCC 338 and Moti Laminates Pvt. Ltd. and others vs. Collector of Central Excise, Ahmedabad (1995) 3 SCC 23 ). Therefore both an authority and on principle, for being exigible to excise duty, excisable goods must satisfy the test of being produced or manufactured in India. The argument to the contrary is rejected.In the case in hand also coal which leads to production of cinder is not used as a raw material for the end product. It is being used only for ancillary purpose that is as a fuel. Therefore, irrespective of the fact whether any manufacture is involved in production of cinder it should be held to be out of the tax net for the reason that it is not a raw material for the endis clear that to be subjected to levy of excise duty excisable goods must be produced or manufactured in India. For being produced and manufactured in India the raw material should have gone through the process of transformation into a new product by skillful manipulation. Excise duty is an incidence of manufacture and, therefore, it is essential that the product sought to excise duty should have gone through the process of manufacture. Cinder cannot be said to have gone through any process of manufacture, therefore, it cannot be subjected to levy of excise duty.In view of our finding that cinder cannot be subjected to levy of excise duty because it is not an item of goods which has been subjected to process of manufacture, it is not necessary for us to go into any other point. We may only note that courts have evolved another test of marketability i.e. to be exigible to excise duty goods must be marketable. It is not disputed that cinder is being sold by the accessees. But can it be said to be marketable goods in the sense word marketable is used? We doubt it. However, this need not detain us since cinder does not satisfy the test of being manufactured in India. Even if it is saleable, it does not make any difference. The result is that the contention of the Revenue that cinder is liable to payment of excise duty is hereby rejected.The objection is that the High Court should not have entertained a petition under Article 226 of the Constitution of India in the facts and circumstances of the case. At the outset we may note that was have only one Civil Appeal in the case of Ahmedabad Electricity Company (C.A. No. 2168-69/2001) which is arising from proceedings before the High Court under Article 226. The remaining matters in the bunch are statutory appeals under Section 35L of Central Excise Act. Therefore, this court has to go into the matter on merits. Moreover, in the Ahmedabad Electricity Companys case challenge by way of Writ Petition under Article 226 was to a Circular dated 7th April, 1998 issued by the Central Board of Excise and Customs and the consequential Trade Notice No. 36/98 dated 22nd May, 1998 issued by the office of the Commissioner of Central Excise and Customs, Ahmedabad by which it was clarified that coal-ash (cinder)" is an excisable commodity classifiable under sub-heading No. 26.21 of the Central Excise Tariff Act, 1985. In the first place no objection regarding maintainability of the Writ Petition seems to have been taken before the High Court. Even if such an objection was raised, the same would have been a futile attempt. In the facts of the case the High Court would have been justified in rejecting such an objection. The impugned circular could not have been challenged before the departmental authorities as they would have felt bound by it. We find no merit in the objection. The same is | 0 | 7,033 | 837 | ### Instruction:
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been gone into by the authorities concerned and therefore it is too late for us to go into all this. 35. Applying the tests laid down in these judgments, it is not possible to say that cinder satisfies the requirement of being manufactured in India. 36. From the above discussion it is clear that to be subjected to levy of excise duty excisable goods must be produced or manufactured in India. For being produced and manufactured in India the raw material should have gone through the process of transformation into a new product by skillful manipulation. Excise duty is an incidence of manufacture and, therefore, it is essential that the product sought to excise duty should have gone through the process of manufacture. Cinder cannot be said to have gone through any process of manufacture, therefore, it cannot be subjected to levy of excise duty. 37. The onus to show that particular goods on which excise duty is sought to be levied have gone through the process of manufacture in India is on the revenue. They have done nothing to discharge this onus. For this reason alone they must fail. 38. The Department has been consistently taking a stand that cinder is not excisable as it does not involve any manufacturing activity. The Department issued a clarification vide Circular No. B. 352/75-TRU (pt) dated 6th June 1975. According to it coal ash left out in burning of coal would not attract duty under item 68 for the reason that in the burning of coal as fuel, resulting in coal ash as a waste product no manufacturing process is involved. With the introduction of the new tariff in 1986 and specific entry for ash being included in the Tariff Chapter 26, the issue again revived. Notification No. 76/86 dated 10th February, 1986 exempted cinder from levy of excise duty. The whole thing was sought to be overturned after the annual budget for the year 1996-97. The Tariff Act, 1975 was amended by virtue of the Tariff Act, 1985. The exemption was withdrawn by virtue of notification No.11/96 dated 23rd July, 1996 in view of the annual budget for the year 1996-97. The Commissioner of Central Excise vide Trade Notice No. 35 of 1998 dated 21st August, 1998 clarified that coal ash (cinder) is specified in the Schedule to the Tariff Act and read with Section 2(d) of the Central Excise Act was subject to levy of excised duty. This sudden turn is not only unjustified but also is contrary to law. 39. Why we say it is contrary to law is because the department clarified in June, 1975 that cinder is not exigible to excise duty as in its emergence no manufacturing process is involved. How can suddenly cinder become exigible to excise duty? The procedures which lead to emergence of cinder have remained the same as they were in 1975. It is was not the result of manufacturing process in 1975, it is not so even now. This aspect was not taken into consideration at all. Interestingly in the Circular No. 386/19/98-CX dated 7th April, 1998 the Central Board of Excise and Customs while declaring coal ash (cinder) as subject to levy of excise duty, states that the commodity also satisfied the tests of marketability and has a distinct commercial identity known to trade". There is no reference to the essential test of being manufactured in India. It is for falling this test that the item was excluded from levy of excise duty earlier in 1975 How can you ignore it now? 40. In view of our finding that cinder cannot be subjected to levy of excise duty because it is not an item of goods which has been subjected to process of manufacture, it is not necessary for us to go into any other point. We may only note that courts have evolved another test of marketability i.e. to be exigible to excise duty goods must be marketable. It is not disputed that cinder is being sold by the accessees. But can it be said to be marketable goods in the sense word marketable is used? We doubt it. However, this need not detain us since cinder does not satisfy the test of being manufactured in India. Even if it is saleable, it does not make any difference. The result is that the contention of the Revenue that cinder is liable to payment of excise duty is hereby rejected. Point 3 41. The objection is that the High Court should not have entertained a petition under Article 226 of the Constitution of India in the facts and circumstances of the case. At the outset we may note that was have only one Civil Appeal in the case of Ahmedabad Electricity Company (C.A. No. 2168-69/2001) which is arising from proceedings before the High Court under Article 226. The remaining matters in the bunch are statutory appeals under Section 35L of Central Excise Act. Therefore, this court has to go into the matter on merits. Moreover, in the Ahmedabad Electricity Companys case challenge by way of Writ Petition under Article 226 was to a Circular dated 7th April, 1998 issued by the Central Board of Excise and Customs and the consequential Trade Notice No. 36/98 dated 22nd May, 1998 issued by the office of the Commissioner of Central Excise and Customs, Ahmedabad by which it was clarified that coal-ash (cinder)" is an excisable commodity classifiable under sub-heading No. 26.21 of the Central Excise Tariff Act, 1985. In the first place no objection regarding maintainability of the Writ Petition seems to have been taken before the High Court. Even if such an objection was raised, the same would have been a futile attempt. In the facts of the case the High Court would have been justified in rejecting such an objection. The impugned circular could not have been challenged before the departmental authorities as they would have felt bound by it. We find no merit in the objection. The same is rejected.
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0
### Explanation:
. A close look at Section 3 of the Central Excise Act shows that the words excisable goods have been qualified by the words which are produced or manufactured in India". Therefore, simply because goods find mention in one of the entries of the First Schedule does not mean that they become liable for payment of excise duty. Goods have to satisfy the test of being produced or manufactured in India. It is settled law that excise duty is a duty levied on manufacture of goods. Unless goods are manufactured in India, they cannot be subjected to payment of excise duty. There is no merit in the argument that simply because a particular item is mentioned in the First Schedule, it becomes exigible to excise duty. (See Hyderabad Industries Ltd. and another vs. Union of India and others (1995) 5 SCC 338 and Moti Laminates Pvt. Ltd. and others vs. Collector of Central Excise, Ahmedabad (1995) 3 SCC 23 ). Therefore both an authority and on principle, for being exigible to excise duty, excisable goods must satisfy the test of being produced or manufactured in India. The argument to the contrary is rejected.In the case in hand also coal which leads to production of cinder is not used as a raw material for the end product. It is being used only for ancillary purpose that is as a fuel. Therefore, irrespective of the fact whether any manufacture is involved in production of cinder it should be held to be out of the tax net for the reason that it is not a raw material for the endis clear that to be subjected to levy of excise duty excisable goods must be produced or manufactured in India. For being produced and manufactured in India the raw material should have gone through the process of transformation into a new product by skillful manipulation. Excise duty is an incidence of manufacture and, therefore, it is essential that the product sought to excise duty should have gone through the process of manufacture. Cinder cannot be said to have gone through any process of manufacture, therefore, it cannot be subjected to levy of excise duty.In view of our finding that cinder cannot be subjected to levy of excise duty because it is not an item of goods which has been subjected to process of manufacture, it is not necessary for us to go into any other point. We may only note that courts have evolved another test of marketability i.e. to be exigible to excise duty goods must be marketable. It is not disputed that cinder is being sold by the accessees. But can it be said to be marketable goods in the sense word marketable is used? We doubt it. However, this need not detain us since cinder does not satisfy the test of being manufactured in India. Even if it is saleable, it does not make any difference. The result is that the contention of the Revenue that cinder is liable to payment of excise duty is hereby rejected.The objection is that the High Court should not have entertained a petition under Article 226 of the Constitution of India in the facts and circumstances of the case. At the outset we may note that was have only one Civil Appeal in the case of Ahmedabad Electricity Company (C.A. No. 2168-69/2001) which is arising from proceedings before the High Court under Article 226. The remaining matters in the bunch are statutory appeals under Section 35L of Central Excise Act. Therefore, this court has to go into the matter on merits. Moreover, in the Ahmedabad Electricity Companys case challenge by way of Writ Petition under Article 226 was to a Circular dated 7th April, 1998 issued by the Central Board of Excise and Customs and the consequential Trade Notice No. 36/98 dated 22nd May, 1998 issued by the office of the Commissioner of Central Excise and Customs, Ahmedabad by which it was clarified that coal-ash (cinder)" is an excisable commodity classifiable under sub-heading No. 26.21 of the Central Excise Tariff Act, 1985. In the first place no objection regarding maintainability of the Writ Petition seems to have been taken before the High Court. Even if such an objection was raised, the same would have been a futile attempt. In the facts of the case the High Court would have been justified in rejecting such an objection. The impugned circular could not have been challenged before the departmental authorities as they would have felt bound by it. We find no merit in the objection. The same is
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Commerce International Vs. Collector Of Customs | 1. The only question that arises for consideration in this appeal is whether the Tribunal was justified in applying Rule 3(b) of the Customs Valuation Rules framed under Section 14 of the Customs Act. 2. The appellant filed Bill of Entry for clearance of 125 cartons of toners declaring the value of the goods at a particular amount on the basis of invoice-cum-value and country of origin certificate issued by M/s. Sangill Ltd. Since the seller was not a manufacturer the Department required the appellant to furnish the price list of the goods under import but the appellant instead of filing the price list stated that they had purchased the goods from a trading company which was not willing to reveal the source of supply. Consequently, the Department obtained the export price list from M/s. Coates Electrographics Limited. After examining the price list of M/s. Coates Electrographics Ltd., the Collector was of the opinion that it was a case in which Rule 3(a) could not be applied. Therefore, he proceeded to determine the value under Rule 3(b) and on the price list supplied by the manufacturer the valuation of the toner imported by the appellant was determined. It was held that the value of the goods when compared with the manufacturers price list was much below the normal price in the international market. The goods were directed to be confiscated with an option to clear on Rs. 8 lakhs. Penalty of Rs. 1000 was also imposed. Against this order the appellant approached the Tribunal. The Tribunal found that the Collector did not commit any error in applying Rule 3(b) but reduced the redemption fine from Rs. 8 lakhs to Rs. 5 lakhs. The penalty of Rs. 1000 was maintained.3. Section 14(1)(b) of the Customs Act empowers the appropriate authority to determine the value of the imported goods in accordance with provisions contained in Rules 3 to 8. Rule 3(a) provides for determination of the value of such goods, with comparable goods produced or manufactured and ordinarily sold or offered for sale to other buyers in India under competitive conditions. Rule 3(b) permits the proper officer to determine valuation on the export price at which such goods or comparable goods are ordinarily sold or offered for sale under competitive conditions to buyers outside India. The determination under Rule 3(b) could be undertaken if the valuation could not be determined under clause (a). The authorities found that in the nature of goods imported by the appellant the valuation of it could not be determined under Rule 3(a). Therefore, Rule 3(b) was rightly invoked. And the determination having been done on comparable goods offered for sale in competitive conditions in countries outside India, the order does not suffer from any error of law. The Tribunal further did not commit any error in relying on the price list supplied by the manufacturer as compared to the trading company which refused to divulge the name of the manufacturer | 0[ds]3. Section 14(1)(b) of the Customs Act empowers the appropriate authority to determine the value of the imported goods in accordance with provisions contained in Rules 3 to 8. Rule 3(a) provides for determination of the value of such goods, with comparable goods produced or manufactured and ordinarily sold or offered for sale to other buyers in India under competitive conditions. Rule 3(b) permits the proper officer to determine valuation on the export price at which such goods or comparable goods are ordinarily sold or offered for sale under competitive conditions to buyers outside India. The determination under Rule 3(b) could be undertaken if the valuation could not be determined under clause (a). The authorities found that in the nature of goods imported by the appellant the valuation of it could not be determined under Rule 3(a). Therefore, Rule 3(b) was rightly invoked. And the determination having been done on comparable goods offered for sale in competitive conditions in countries outside India, the order does not suffer from any error of law. The Tribunal further did not commit any error in relying on the price list supplied by the manufacturer as compared to the trading company which refused to divulge the name of the manufacturer | 0 | 563 | 243 | ### 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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1. The only question that arises for consideration in this appeal is whether the Tribunal was justified in applying Rule 3(b) of the Customs Valuation Rules framed under Section 14 of the Customs Act. 2. The appellant filed Bill of Entry for clearance of 125 cartons of toners declaring the value of the goods at a particular amount on the basis of invoice-cum-value and country of origin certificate issued by M/s. Sangill Ltd. Since the seller was not a manufacturer the Department required the appellant to furnish the price list of the goods under import but the appellant instead of filing the price list stated that they had purchased the goods from a trading company which was not willing to reveal the source of supply. Consequently, the Department obtained the export price list from M/s. Coates Electrographics Limited. After examining the price list of M/s. Coates Electrographics Ltd., the Collector was of the opinion that it was a case in which Rule 3(a) could not be applied. Therefore, he proceeded to determine the value under Rule 3(b) and on the price list supplied by the manufacturer the valuation of the toner imported by the appellant was determined. It was held that the value of the goods when compared with the manufacturers price list was much below the normal price in the international market. The goods were directed to be confiscated with an option to clear on Rs. 8 lakhs. Penalty of Rs. 1000 was also imposed. Against this order the appellant approached the Tribunal. The Tribunal found that the Collector did not commit any error in applying Rule 3(b) but reduced the redemption fine from Rs. 8 lakhs to Rs. 5 lakhs. The penalty of Rs. 1000 was maintained.3. Section 14(1)(b) of the Customs Act empowers the appropriate authority to determine the value of the imported goods in accordance with provisions contained in Rules 3 to 8. Rule 3(a) provides for determination of the value of such goods, with comparable goods produced or manufactured and ordinarily sold or offered for sale to other buyers in India under competitive conditions. Rule 3(b) permits the proper officer to determine valuation on the export price at which such goods or comparable goods are ordinarily sold or offered for sale under competitive conditions to buyers outside India. The determination under Rule 3(b) could be undertaken if the valuation could not be determined under clause (a). The authorities found that in the nature of goods imported by the appellant the valuation of it could not be determined under Rule 3(a). Therefore, Rule 3(b) was rightly invoked. And the determination having been done on comparable goods offered for sale in competitive conditions in countries outside India, the order does not suffer from any error of law. The Tribunal further did not commit any error in relying on the price list supplied by the manufacturer as compared to the trading company which refused to divulge the name of the manufacturer
### Response:
0
### Explanation:
3. Section 14(1)(b) of the Customs Act empowers the appropriate authority to determine the value of the imported goods in accordance with provisions contained in Rules 3 to 8. Rule 3(a) provides for determination of the value of such goods, with comparable goods produced or manufactured and ordinarily sold or offered for sale to other buyers in India under competitive conditions. Rule 3(b) permits the proper officer to determine valuation on the export price at which such goods or comparable goods are ordinarily sold or offered for sale under competitive conditions to buyers outside India. The determination under Rule 3(b) could be undertaken if the valuation could not be determined under clause (a). The authorities found that in the nature of goods imported by the appellant the valuation of it could not be determined under Rule 3(a). Therefore, Rule 3(b) was rightly invoked. And the determination having been done on comparable goods offered for sale in competitive conditions in countries outside India, the order does not suffer from any error of law. The Tribunal further did not commit any error in relying on the price list supplied by the manufacturer as compared to the trading company which refused to divulge the name of the manufacturer
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S.A.Builders Ltd Vs. Commnr.Of Income Tax (Appeals),Chan &Anr | Markandey Katju, J.Leave granted.2. This appeal has been filed against the impugned judgment dated 23.7.2004 of the Punjab & Haryana High Court in ITA Nos. 8-9 of 2003.3. Heard learned counsel for the parties and perused the record.4. The appellant-assessee is a company engaged in the business of civil construction. It claimed for deduction under Section 32AB of the Income Tax Act, 1961, which was raised as an additional ground before the Income Tax Appellate Tribunal, Chandigarh (hereinafter referred to as the Tribunal). In paragraphs 19-21 of its order dated 20.6.2002 the Tribunal has rejected the claim of the assessee on two grounds. The first ground is that the assessee was engaged in the business of civil construction and was not carrying on any manufacturing activity. Hence, the claim was not allowable in view of the judgment of this Court in CIT vs. N.C. Budharaja & Co. (1993) 204 ITR 412. The second ground for rejecting the claim was that the claim was not based on facts on record. The deduction under Section 32AB was not automatic and was subject to various conditions laid down in that provision. Whether the assessee fulfilled those conditions for claiming the deduction or not required examination into facts which were not on record. Even before the Tribunal the assessee had not placed any material to show how the assessee is entitled to such deduction. Hence the Tribunal rejected the assessees claim. By the impugned judgment the High Court has agreed with the view of the Tribunal.5. We have also carefully considered the matter and we are fully in agreement with the Tribunal as well as the High Court. | 0[ds]5. We have also carefully considered the matter and we are fully in agreement with the Tribunal as well as the High Court | 0 | 299 | 28 | ### 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:
Markandey Katju, J.Leave granted.2. This appeal has been filed against the impugned judgment dated 23.7.2004 of the Punjab & Haryana High Court in ITA Nos. 8-9 of 2003.3. Heard learned counsel for the parties and perused the record.4. The appellant-assessee is a company engaged in the business of civil construction. It claimed for deduction under Section 32AB of the Income Tax Act, 1961, which was raised as an additional ground before the Income Tax Appellate Tribunal, Chandigarh (hereinafter referred to as the Tribunal). In paragraphs 19-21 of its order dated 20.6.2002 the Tribunal has rejected the claim of the assessee on two grounds. The first ground is that the assessee was engaged in the business of civil construction and was not carrying on any manufacturing activity. Hence, the claim was not allowable in view of the judgment of this Court in CIT vs. N.C. Budharaja & Co. (1993) 204 ITR 412. The second ground for rejecting the claim was that the claim was not based on facts on record. The deduction under Section 32AB was not automatic and was subject to various conditions laid down in that provision. Whether the assessee fulfilled those conditions for claiming the deduction or not required examination into facts which were not on record. Even before the Tribunal the assessee had not placed any material to show how the assessee is entitled to such deduction. Hence the Tribunal rejected the assessees claim. By the impugned judgment the High Court has agreed with the view of the Tribunal.5. We have also carefully considered the matter and we are fully in agreement with the Tribunal as well as the High Court.
### Response:
0
### Explanation:
5. We have also carefully considered the matter and we are fully in agreement with the Tribunal as well as the High Court
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RABINDRA KUMAR SHAW Vs. UNION OF INDIA MINISTRY OF DEFENCE | L. NAGESWARA RAO, J. 1. The Appellant was enrolled in the Indian Army on 27.07.2000 in the Corps of Signals. When he was posted with the 9 th Corps Air Support Signal Unit (CASSU), he was charged for disobedience of lawful command given by his Company Havaldar Major (CHM) Pramod Kumar. The charges communicated to the Appellant are as follows: First charge Army Act Section 41(2) Cantonment, on 30 July 2009, when ordered by his Section Non Commissioned Officer Number 15361 420F Company Havaldar Major (Operator Cipher) Parmod Kumar of the same unit to perform the duties as Detachment In- charge of the unit Radio Monitoring Detachment from 1900 hrs. to 2359 hrs. on 30 July 2009 did not do so. Second charge Army Act Section 41 (2) Cantonment, on 03 August 2009, when his Section Non Commissioned Officer Number 15361 420F Company Havaldar Major (Operator Cipher) Parmod Kumar of the same unit ordered him to perform the duties as the Detachment In-charge of the unit Radio Monitoring Detachment from 1900 hrs. to 2359 hrs. on 03 August 2009, failed to report to the Radio Department. 2. The Appellant denied the charges. Proceedings were initiated before the Summary Court Martial. Company Havaldar Major Pramod Kumar of Operation Section, 9 th Corps deposed before the Summary Court Martial that the Appellant failed to perform the duty of Operator-cum- Detachment In-charge of the Radio Monitoring Detachment Unit from 1900 hrs. to 2359 hrs. on 30.07.2009. As the Appellant did not report for duty as directed by him, Company Havaldar Major Pramod Kumar went to the Barrack and directed the Appellant to explain the reason for not reporting for duty. Thereafter, Pramod Kumar himself performed the duties of Detachment In- Charge during that night. The Appellant again absented himself from duty in spite of directions issued on 03.08.2009. The Appellant was marched up to the Commanding Officer, Colonel Rajiv Sud on 06.08.2009. T entative charges were framed and explained to the Appellant. The Appellant refused to sign Appendix A as directed by the Commanding Officer. 3. By an order dated 26.08.2009, the service of the Appellant was terminated on the basis of the findings recorded in the Summary Court Martial. He preferred an appeal to Respondent No.4 which was dismissed by an order dated 16.02.2010. Thereafter, the Appellant filed a Writ Petition in the Calcutta High Court which was transferred to the Armed Forces Tribunal, Kolkata Bench. By the impugned order, the Armed Forces Tribunal upheld the order of termination of service of the Appellant. 4. The learned counsel for the Appellant submitted that there is no truth in the allegations that he willfully disobeyed the orders of his superior. He justified his absence from duty on the ground that he suffered an injury in his little finger of the right hand. He also submitted that the penalty of termination of service is disproportionate to the charges framed against him. 5. The learned Senior Counsel for the Respondents stated that the Appellant was not a raw soldier, having served the Army for a period of 9 years prior to the date of incident. Disobeying lawful command deliberately and intentionally is a serious charge. The learned Senior Counsel for the Respondent also stated that the Appellant refused to sign any documents, cross examine the witnesses or make a statement in his defence. He deliberately did not summon any defence witness. 6. The Armed Forces personnel are different from civil services. Not being present at his detachment unit and disobeying the lawful command cannot be ignored lightly. There is abundant material to show that the Appellant is guilty of disobeying the lawful command of his superiors not once but on two occasions. The Appellant is also guilty of deliberately not co-operating with the Summary Court Martial. It is also clear from the record that he did not utilize the opportunity to defend himself. The penalty of termination of service of the Appellant cannot be said to be incommensurate with the delinquency. | 0[ds]6. The Armed Forces personnel are different from civil services. Not being present at his detachment unit and disobeying the lawful command cannot be ignored lightly. There is abundant material to show that the Appellant is guilty of disobeying the lawful command of his superiors not once but on two occasions. The Appellant is also guilty of deliberately not co-operating with the Summary Court Martial. It is also clear from the record that he did not utilize the opportunity to defend himself. The penalty of termination of service of the Appellant cannot be said to be incommensurate with the delinquency. | 0 | 742 | 113 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
L. NAGESWARA RAO, J. 1. The Appellant was enrolled in the Indian Army on 27.07.2000 in the Corps of Signals. When he was posted with the 9 th Corps Air Support Signal Unit (CASSU), he was charged for disobedience of lawful command given by his Company Havaldar Major (CHM) Pramod Kumar. The charges communicated to the Appellant are as follows: First charge Army Act Section 41(2) Cantonment, on 30 July 2009, when ordered by his Section Non Commissioned Officer Number 15361 420F Company Havaldar Major (Operator Cipher) Parmod Kumar of the same unit to perform the duties as Detachment In- charge of the unit Radio Monitoring Detachment from 1900 hrs. to 2359 hrs. on 30 July 2009 did not do so. Second charge Army Act Section 41 (2) Cantonment, on 03 August 2009, when his Section Non Commissioned Officer Number 15361 420F Company Havaldar Major (Operator Cipher) Parmod Kumar of the same unit ordered him to perform the duties as the Detachment In-charge of the unit Radio Monitoring Detachment from 1900 hrs. to 2359 hrs. on 03 August 2009, failed to report to the Radio Department. 2. The Appellant denied the charges. Proceedings were initiated before the Summary Court Martial. Company Havaldar Major Pramod Kumar of Operation Section, 9 th Corps deposed before the Summary Court Martial that the Appellant failed to perform the duty of Operator-cum- Detachment In-charge of the Radio Monitoring Detachment Unit from 1900 hrs. to 2359 hrs. on 30.07.2009. As the Appellant did not report for duty as directed by him, Company Havaldar Major Pramod Kumar went to the Barrack and directed the Appellant to explain the reason for not reporting for duty. Thereafter, Pramod Kumar himself performed the duties of Detachment In- Charge during that night. The Appellant again absented himself from duty in spite of directions issued on 03.08.2009. The Appellant was marched up to the Commanding Officer, Colonel Rajiv Sud on 06.08.2009. T entative charges were framed and explained to the Appellant. The Appellant refused to sign Appendix A as directed by the Commanding Officer. 3. By an order dated 26.08.2009, the service of the Appellant was terminated on the basis of the findings recorded in the Summary Court Martial. He preferred an appeal to Respondent No.4 which was dismissed by an order dated 16.02.2010. Thereafter, the Appellant filed a Writ Petition in the Calcutta High Court which was transferred to the Armed Forces Tribunal, Kolkata Bench. By the impugned order, the Armed Forces Tribunal upheld the order of termination of service of the Appellant. 4. The learned counsel for the Appellant submitted that there is no truth in the allegations that he willfully disobeyed the orders of his superior. He justified his absence from duty on the ground that he suffered an injury in his little finger of the right hand. He also submitted that the penalty of termination of service is disproportionate to the charges framed against him. 5. The learned Senior Counsel for the Respondents stated that the Appellant was not a raw soldier, having served the Army for a period of 9 years prior to the date of incident. Disobeying lawful command deliberately and intentionally is a serious charge. The learned Senior Counsel for the Respondent also stated that the Appellant refused to sign any documents, cross examine the witnesses or make a statement in his defence. He deliberately did not summon any defence witness. 6. The Armed Forces personnel are different from civil services. Not being present at his detachment unit and disobeying the lawful command cannot be ignored lightly. There is abundant material to show that the Appellant is guilty of disobeying the lawful command of his superiors not once but on two occasions. The Appellant is also guilty of deliberately not co-operating with the Summary Court Martial. It is also clear from the record that he did not utilize the opportunity to defend himself. The penalty of termination of service of the Appellant cannot be said to be incommensurate with the delinquency.
### Response:
0
### Explanation:
6. The Armed Forces personnel are different from civil services. Not being present at his detachment unit and disobeying the lawful command cannot be ignored lightly. There is abundant material to show that the Appellant is guilty of disobeying the lawful command of his superiors not once but on two occasions. The Appellant is also guilty of deliberately not co-operating with the Summary Court Martial. It is also clear from the record that he did not utilize the opportunity to defend himself. The penalty of termination of service of the Appellant cannot be said to be incommensurate with the delinquency.
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State of Karnataka & Another Vs. All India Manufacturers Organization & Others | only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed. 73. It is difficult to accept that the landowners were not aware of the purpose of the acquisition nor can it be accepted that they were unable to file their objections on this ground. As a matter of fact, as the High Court has concurrently found, they did file their objections before the competent authorities. We do not see any prejudice caused to them as a result of the wordings of the notification of acquisition. The concerned authority also heard them on the objections filed after affording them an opportunity to file such objections under Section 28(2) of the KIAD Act. Thus, there is no substance in the contention of the appellants that the notification was vague and hence that the State did not comply with the principles of natural justice. Purpose of Acquisition 74. The next contention urged on behalf of the landowners is that the lands were not being acquired for a public purpose. The counsel who have argued for the landowners have expatiated in their contention by urging that land in excess of what was required under the FWA had been acquired; land far away from the actual alignment of the road and periphery had been acquired, consequently, it is urged that even if the implementation of the Highway Project is assumed to be for a public purpose, acquisition of land far away therefrom would not amount to a public purpose nor would it be covered by the provisions of the KIAD Act. 75. In our view, this was an entirely misconceived argument. As we have pointed out in the earlier part of our judgment, the Project is an integrated infrastructure development project and not merely a highway project. The Project as it has been styled, conceived and implemented was the Bangalore- Mysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with numerous developmental infrastructure activities along with the highway at several points. As an integrated project, it may require the acquisition and transfer of lands even away from the main alignment of the road. 76. The various changes brought about to the KIAD Act, also reflect the intention of the States Legislature to provide for land acquisition for the Project. The expressions Industrial area and Industrial Infrastructural facilities as defined under the KIAD Act, definitely include within their ambit establishment of facilities that contribute to the development of industries. We cannot forget that, as originally enacted, the KIAD Act had a different, narrower definition of Industrial area in Section 2(6). In 1997, the definition was broadened to also include industrial infrastructural facilities and amenities. Further, Section 2(7-a) was added to define Industrial Infrastructural facilities in a manner broad enough to take into its sweep the land acquisition for the Project. 77. The learned Single Judge erred in assuming that the lands acquired from places away from the main alignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous. The Division Bench was right in taking the view that the Project was an integrated project intended for public purpose and, irrespective of where the land was situated, so long as it arose from the terms of the FWA, there was no question of characterising it as unconnected with a public purpose. We are, therefore, in agreement with the finding of the High Court on this issue. Civil Appeal No. 7024-25/05 78. As regards these appeals, the impugned judgment of the High Court (vide Paragraph 32) specifically records that the appellants did not have any right or interest in the land in question on the date that they filed the writ petitions before the High Court. The counsel too admitted the same before the High Court. The High Court accordingly found that the writ petitions were not maintainable. Since the writ petition proceeded on this footing, we cannot permit the appellants to take a different stand before us, contrary to what had been stated before the High Court. Since we have not been convinced otherwise, the writ petitions were not maintainable and the High Court was justified in the view that it took. 79. In summary, having perused the well considered judgment of the Division Bench which is under appeal in the light of the contentions advanced at the Bar, we are not satisfied that the acquisitions were, in any way, liable to be interfered with by the High Court, even to the extent as held by the learned Single Judge. We agree with the decision of the Division Bench that the acquisition of the entire land for the Project was carried out in consonance with the provisions of the KIAD Act for a public project of great importance for the development of the State of Karnataka. We do not think that a Project of this magnitude and urgency can be held up by individuals raising frivolous and untenable objections thereto. The powers under the KIAD Act represent the powers of eminent domain vested in the State, which may need to be exercised even to the detriment of individuals property rights so long as it achieves a larger public purpose. Looking at the case as a whole, we are satisfied that the Project is intended to represent the larger public interest of the State and that is why it was entered into and implemented all along. The Final Orders | 0[ds]26. The High Court has come to the categorical conclusion that the flipflop on the part of the State Government occurred only because of politicians, that the mala fides, if any, appears to be on the part of the State Government for political reasons. The High Court has pointed out that the FWA did not materialise out of the blue. The FWA was negotiated over several months; it came to be drafted by considering several points that the Cabinete had raised. As we have already highlighted, it was only thereafter, when detailed deliberations had taken place at the highest levels of the State Government that the MOU was signed and the Project Report accepted. A Government Order (dated 20.11.1995) was issued requiring the Public Works Department to enter into a Memorandum of Understanding with the Consortium of three companies, VHB, SAB and Kalyani. On 9.9.1996, through the CAA, the three members of the Consortium agreed tounconditionally and irrevocably transfer and assign, jointly and severallyall rights, interest and title granted to them with respect to the Infrastructure Corridor by GOK under the Government Order and the Memorandum of Understanding. The CAA came to be signed by the three members of the Consortium on the one hand and Nandi on the other; the Governor of Karnataka, on behalf of the Government of Karnataka, was shown as the Consenting Party. A copy of this agreement was forwarded to the State Government along with a forwarding letter dated 21.12.1996 requesting that the Government approve of the same and advise of its approval so that the original agreement could be given to the State Government for its consent. This letter was forwarded by the Public Works Department to the Law Department through a letter dated 22.1.1997 (No. PWD 155 CRM 96) seeking an opinion on the issue. The State Government was advised by its Law Department (through Opinion No. 182 OPN II/97 dated 3/4.3.1997) that since the Government was finalising a separate agreement with Nandi, there was no need to specifically consent to the CAA. Thus, it would appear that the State Government had specifically been made aware of the CAA and the fact that the members of the Consortium had transferred their rights to Nandi. The argument made before the High Court that the Government was unaware of the CAA, was defrauded to execute the FWA is, therefore, utterly dishonest. We concur with the decision of the High Court on this issue that the plea was lacking any bona fides and that there was neither fraud nor misrepresentation on the part of Nandi or any member of the Consortium27. Subsequently, as we have already discussed, Nandi as the assignee of the Consortium, submitted a draft of the FWA to the State Government which was considered by the Core Committee that had been set up to negotiate the terms with Nandi. The Core Committee referred the draft FWA to the Cabinete which suggested various modifications to it, which were incorporated in the FWA. Finally, the FWA was approved by the State Government and came to be signed on 3.4.1997. Thus, it appears that the plea of fraud and misrepresentation was clearly an afterthought and it was conveniently raised by the State Government through the petitioners in Writ Petition No. 45386/04, who were rightly described by the High Court as the State Governments mouth piece (vide Paragraph 22)28. The High Court has also totally disbelieved the affidavits of the Chief Secretary, K.K. Misra, and the Under Secretary, M. Shivalingaswamy on this issue. We have refrained from commenting on the merits of their affidavits since their appeals against prosecution for perjury are pending separately. We may, however, point out that both the affidavits of the two senior bureaucrats are on the issue that certain facts which had been suppressed from the Government had come to light after the judgment in Somashekar Reddy (supra) and that these indicated fraud and misrepresentation on the part of Nandi. Indeed, this was the central argument put forward for impugning the FWA29. The FWA was executed on 3.4.1997 and implemented by the parties for at least seven years. Several obligations under the FWA were carried out by the State Government and its instrumentalities and also by Nandi, which had invested a large amount of money in the Project. These included monies for payment of compensation to landowners whose lands were being acquired for the Project. Soon after the FWA was entered into, some interested parties had raised the issue in public interest that the FWA was a fraud and was nothing but a charade for a lucrative real estate business on the part of Nandi. The Government through the then Minister for Public Works vigilantly defended the Project against all these allegations both inside and outside the Legislature30. It would appear that the change of mind on the part of the State Government came abouty or otherwise with a change of Government in Karnataka in 2004. In the year 2004, while the State Governments writ appeal was still pending before the Division Bench, a statement was made by Mr. H.D. Deve Gowda, former Prime Minister, making serious allegations with regard to the Project stating that it was nothing but a charade by which Nandi had converted it into a real estate business. It was at this stage that a note (No. PWD/E/375/2004 dated 6.7.2004) was written by the new Minister, Public Works Department, Mr. H.D. Revanna, who is none other than the son of Mr. Deve Gowda, to the Principal Secretary, Public Works Department. The note in terms states that land acquisition by the State Government for the Project was to cease till the allegation that Nandi was carrying out a real estate business was enquired into. With this, the State Government suddenly halted/slowed all ongoing activities for smooth implementation of the Project. Indeed, it is strange that the State Government woke up after seven long years, and even more strangely after a change in the States political leadership, to the fact that there was fraud/ misrepresentation by Nandi or anyone else31. Pursuant to this, the Minister of the Public Works Department set up the Expert Committee (headed by K.C. Reddy) to go into the allegations of excess land acquired by the Government for implementation of the Project. After accepting the Interim Report of the Expert Committee, the Government withdrew its appeal filed before the High Court and the reasons for the same are mentioned in a Government Order (PWD 155 CRM 95 BMICP Expert Committee/2004, Bangalore dated 7.1.2005). As we shall see later in the judgment, the constitution and functioning of this Committee also illustrates the mala fides with which the State Government has approached the Project. Thus, the utter irresponsibility with which the theory of fraud/misrepresentation was put forward is thoroughly exposed by the High Court in its impugned judgment34. As a matter of fact, in a Public Interest Litigation, the petitioner is not agitating his individual rights but represents the public at large. As long as the litigation is bona fide, a judgment in a previous Public Interest Litigation would be a judgment in rem. It binds the public at large and bars any member of the public from coming forward before the court and raising any connected issue or an issue, which had been raised/should have been raised on an earlier occasion by way of a Public Interest Litigation. It cannot be doubted that the petitioner in Somashekar Reddy (supra) was acting bona fide. Further, we may note that, as a retired Chief Engineer, Somashekar Reddy had the special technical expertise to impugn the Project on the grounds that he did and so, he cannot be dismissed as a busybody. Thus, we are satisfied in principle that Somashekar Reddy (supra), as a Public Interest Litigation, could bar the present litigation40. First, learned counsel for the Respondents has pointedly drawn our attention to the identity of the prayers made in the previous Public Interest Litigation by Somashekar Reddy as compared to the prayers made in the present case of Mr. Madhuswamy and others. The prayers in Somashekar Reddys petition were: (a) for quashing the FWA and (b) for directing an inquiry by the CBI in the matter and to prosecute the offenders. In Mr. Madhuswamys petition, the prayers were: (a) to direct the CBI to conduct inquiries to various acts as enumerated by items 1 to 16 (specifically the issue of excess land) and (b) for quashing the various agreements, and acts done in pursuance of the Project and consequently, to denotify the land of all farmers situated away from the peripheral road and link road. We are therefore, satisfied that the prayers made in Somashekar Reddy (supra) and in Mr. Madhuswamys writ petitions are substantially the same41. Second, the cause of action in both Somashekar Reddy (supra) and the present cases is the FWA, which includes the provisions for acquiring 20,193 acres of land for the Project (comprising 13,237 acres of private land and 6,956 acres of Government land). Indeed, it was stated in Somashekar Reddys Writ Petition that the land requirement in Schedule I of the FWA was highly exaggerated and would illegally create huge profits for Nandi. Somashekar Reddy thus prayed that the FWA be quashed this prayer was, however, specifically rejected. The very same FWA that was upheld earlier has now been impugned in the present case42. Third, in both Somashekar Reddy and Mr. Madhuswamys petitions, the averment was that excess land than required for the implementation of the Project was being acquired by the State Government at the behest of Nandi and that the Project was nothing but a camouflage to carry out a real estate business by Nandi45. All of these unequivocally show that the issue of excess land (and connected issues) was specifically raised by the petitioner in Somashekar Reddy (supra) and was also forcefully denied by the State. In fact, the decision in Somashekar Reddy (supra), went further with the High Court according its imprimatur to the land requirements under the FWA amounting to 20,193 acres, which in no small measure, resulted from the States successful defence that it had provided the bare minimum of land for the Project calculated by a scientific method. The judgment also contains copious references to the issue of land (including the acreage), the types of land to be acquired, the land requirement for different aspects of the Project, the scientific techniques involved in identifying the land and road alignment etc. In these circumstances, it cannot be doubted that Explanation III to Section 11 squarely applies. It is clear that the issue of excess land under the FWA was directly and substantially in issue in Somashekar Reddy (supra) and hence, the findings recorded therein having reached finality, cannot be reopened in this case47. In the face of such a finding by the High Court, Explanation IV to Section 11 squarely applies as, admittedly, the litigation in Somashekar Reddy (supra) exhausted all possible challenges to the validity of the FWA, including the issue of excess land. Merely because the present petitioners draw semantic distinctions and claim that the excess land not having been identified at the stage of the litigation in Somashekar Reddy (supra), the Project should be reviewed, the issue does not cease to be res judicata or covered by principles analogous thereto. If we were toe the issues that had been raised/ought to have been raised in Somashekar Reddy (supra) it would simply be an abuse of the process of the court, which we cannot allow48. As we have pointed out, the cause of action, the issues raised, the prayers made, the relief sought in Somashekar Reddys petition and the findings in Somashekar Reddy (supra), and the claims and arguments in the present petitions were substantially the same. Therefore, it is not possible to accept the contention of the appellants before us that the judgment in Somashekar Reddy (supra) does not operate as res judicata for the questions raised in the present petitions49. There was considerable time taken by the learned counsel for the appellants in trying to persuade us that excess land had actually been delivered to Nandi under the FWA. A subsidiary argument was that even though the actual area of land delivered might not have been in excess, since land in prime areas had improperly been acquired for Nandis benefit, the issue needed to be. In our view, this argument too is not open to be agitated at this point. As we have already pointed out, the writ petition in Somashekar Reddy (supra) was the culmination of all such allegations which had been successfully refuted even on the floor of the Legislature. Finally, having failed on the floor of the Legislature, a Public Interest Litigation was filed on the ground that there was something wrong with the FWA and that it was virtually at to Nandi. The Division Bench of the High Court considered every argument very carefully and recorded findings on all the issues against Mr. J.C. Madhuswamy and others. In our view, permitting the argument on excess land to be heard again to scuttle a project of this magnitude for public benefit would encourage dishonest politically motivated litigation and permit the judicial process to be abused for political ends. The High Court, therefore, has refused to answer the first part of the second question framed for consideration on the ground that it was already answered in Somashekar Reddy (supra) and as it was res judicata, it could not be. Further, that since this argument involved details of contractual disputes, the High Court would not examine it in its writ jurisdiction. We are not satisfied that the High Court was wrong in so holding50. The High Courts finding on this issue only gains strength if we were to examine the factual matrix in which the State took its stand that excess land had been acquired for the Project. As we have previously stated, pursuant to the objections raised to the Project by the new Minister for Public Works, an Expert Committee was setup in 2004 to review the Project. The Expert Committee was conveniently headed by K.C. Reddy, who was the Advisor to the Public Works Minister. This K.C. Reddy was the same gentleman, who as a member of the previous HLC, had scrutinised the Project threadbare and had given it the green signal. Surprisingly however, at this stage, he appeared to be all willing to find faults and flaws in the Project and the FWA, despite the fact that there was an Empowered Committee that was required to monitor the implementation of the Project. The High Court rightly pointed out that the Expert Committee was constituted virtually in supersession of Clause 4.1.1 of the FWA51. The Expert Committee suddenly woke up to the alleged fact that excess land was being acquired. Like the State Government, the Expert Committee also mades and came out with a report saying that there was acquisition of excess land. Crucially, it left the actual identification of the excess lands to the KIAD Board. Surprisingly, the State Cabinet in its meeting dated 26.10.2004 accepted the report but reaffirmed its support to the Project and expressed some reservations on the acquisition of more lands than what was necessary for the Project52. We too cannot appreciate the conduct on the part of K.C. Reddy or the State Government. The inference drawn by the High Court is that the plea of fraud and misrepresentation sought to be raised was not only an afterthought but also false to the knowledge of the State Government. The High Court, therefore, observed (vide Paragraph 27):It is unfortunate that the petitioners and the State Government have chosen to raise this bogie (sic bogey) to defeat the public project subserving public interest53. Interestingly, neither the interim report nor the final report of the Expert Committee identified the excess land but in fact, left it for the KIAD Board. The counsel for the KIAD Board handed over a set of documents, which purportedly identified the specific excess lands. It was the grievance of the KIAD Board that they had not been given the opportunity for placing these documents before the High Court. Since the date of documents showed that they were drawn subsequent to the date on which the High Court had delivered its judgment, the learned Senior Counsel for KIAD Board Mr. K.K. Venugopal candidly admitted that this exercise was carried out after the impugned judgment had been delivered. It is a moot point whether the person, who swore this affidavit on behalf of the KIAD Board stating that no opportunity had been given to the KIAD Board to place these documents on the record of the High Court, needs to be considered for prosecution under Section 340 read with Section 195 of the Code of Criminal Procedure, 1973. We strongly deprecate such misleading or false affidavits on the part of the KIAD Board54. According to Mr. Venugopal, Article 300A of the Constitution, as well as the KIAD Act, would be violated if the KIAD Board were to directly acquire or acquiesce in the acquisition of land in excess of what is required for the Project. In our view, this is nothing but a repetition of the arguments made by the State of Karnataka. As we have elaborately discussed, that the land was not in excess has been held by the Division Bench of the High Court on two occasions and we agree with it. Thus, there was no question of the land being acquired for a purpose other than a public purpose or there being any contravention of Article 300A. In fact, we are somewhat surprised that this type of argument must come from the KIAD Board, which was intimately involved, from the very beginning, with the process of acquiring land. Further, the State and its instrumentalities (including the KIAD Board) were enjoined by Clause 5.1.1.1 of the FWA, to make best efforts to acquire the land required for the Project. Indeed, till the State itself changed its stand with regard to the Project, nothing was heard from the KIAD Board about lands being acquired in excess of the public purpose. Further, as an instrumentality of the State, the KIAD Board cannot have a case to plead different from that of the State of Karnataka. Thus, we are unable to countenance the arguments of Mr. Venugopal on behalf of the KIAD Board55. Considering the facts as a whole, the High Court came to the conclusion that since the Project had been implemented and Nandi had invested a large amount of money and work had been carried out for more than seven years, the State Government could not be permitted to change its stand and to contend that the land allotted for the Project was in excess of what was required. Having perused the impugned judgment of the High Court, we are satisfied that there is no need for us to interfere therewith. Thus, there is no merit in this contention, which must consequently fail60. In these circumstances, we find no reason to interfere with the said directions of the High Court. In the future also, we make it clear that while the State Government and its instrumentalities are entitled to exercise their contractual rights under the FWA, they must do so fairly, reasonably and without mala fides; in the event that they do not do so, the Court will be entitled to interfere with the same61. The High Court also found, justifiably in our view, that the writ petitioners had been sponsored by the State Government to put forward its changed stand in the garb of a Public Interest Litigation62. Although this should have really put an end to the writ petitions filed by Mr. Madhuswamy and others, the High Court had to consider the petitions filed by Mr. Dakshinamurthy and the All India Manufacturers Organisation, who were also before the court by way of Public Interest Litigation and sought a Mandamus of the continuation of the Project. A grievance was made before the High Court that these were persons put up by Nandi and that they were virtually projecting the viewpoint of Nandi. The High Court having taken note of the same has said that despite this, larger public interest required the implementation of the Project. We see no reason to differ with the High Court on this point63. Writ Petition No. 45386/04 (Mr. J.C. Madhuswamy and others) was rightly dismissed as raising the very same issues which had been concluded by the decision in Somashekar Reddy (supra). Writ Petition Nos. 45334/04 and 48981/04 were rightly allowed and the order to implement the Project in its letter and spirit had been made in exercise of the writ jurisdiction of the High Court. We refrain from dealing with the third relief granted, namely directing the prosecution of K.K. Misra and M. Shivalingaswamy, as their appeals shall be independently dealt with by this Court70. The argument that no notice was served on the landowners under Section 28(1) of the KIAD Act, appears to be factually incorrect. Even the learned Single Judge who partially allowed the writ petition came to the conclusion (vide Paragraph 22) in his judgment (dated 18.12.2003) that thepetitioners in all these cases have filed objections on several grounds. Even in the appeal before the Division Bench, the High Court observed (vide Paragraph 30) that it wasnot in dispute that the land owners were served with notices and the objections filed by them have been considered. Even before us, when these appeals were argued, no attempt was made by any of the learned counsel to satisfy us that the appellants had not actually been served notice of the acquisition. Neither was the finding of the learned Single Judge or the Division Bench impugned on this point. We are, therefore, unable to accept the contention that notices were not served on the appellants as required under Section 28(1) of the KIAD ActVagueness of Notice of Acquisition71. The next contention is that the notice of acquisition was vague and consequently prejudiced any effective objection being made by the landowners whose lands were sought to be acquired. The vagueness of the notification, it is contended, has vitiated the notice itself, according to the learned counsel for some of the landowners72. The notification in the instant case states that the lands were being acquired for the purposes of industrial development i.e. establishing and developing industrial areas by the KIAD Board. In our opinion, the purpose indicated in the notifications is sufficiently precise and is not affected by the vice of vagueness as alleged. Our attention was drawn to the judgment of this Court in Aflatoon v. Lt. Governor of Delhi [(1975) 4 SCC 285] 73. It is difficult to accept that the landowners were not aware of the purpose of the acquisition nor can it be accepted that they were unable to file their objections on this ground. As a matter of fact, as the High Court has concurrently found, they did file their objections before the competent authorities. We do not see any prejudice caused to them as a result of the wordings of the notification of acquisition. The concerned authority also heard them on the objections filed after affording them an opportunity to file such objections under Section 28(2) of the KIAD Act. Thus, there is no substance in the contention of the appellants that the notification was vague and hence that the State did not comply with the principles of natural justice74. The next contention urged on behalf of the landowners is that the lands were not being acquired for a public purpose. The counsel who have argued for the landowners have expatiated in their contention by urging that land in excess of what was required under the FWA had been acquired; land far away from the actual alignment of the road and periphery had been acquired, consequently, it is urged that even if the implementation of the Highway Project is assumed to be for a public purpose, acquisition of land far away therefrom would not amount to a public purpose nor would it be covered by the provisions of the KIAD Act75. In our view, this was an entirely misconceived argument. As we have pointed out in the earlier part of our judgment, the Project is an integrated infrastructure development project and not merely a highway project. The Project as it has been styled, conceived and implemented was the BangaloreMysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with numerous developmental infrastructure activities along with the highway at several points. As an integrated project, it may require the acquisition and transfer of lands even away from the main alignment of the road76. The various changes brought about to the KIAD Act, also reflect the intention of the States Legislature to provide for land acquisition for the Project. The expressions Industrial area and Industrial Infrastructural facilities as defined under the KIAD Act, definitely include within their ambit establishment of facilities that contribute to the development of industries. We cannot forget that, as originally enacted, the KIAD Act had a different, narrower definition of Industrial area in Section 2(6). In 1997, the definition was broadened to also include industrial infrastructural facilities and amenities. Further, Section) was added to define Industrial Infrastructural facilities in a manner broad enough to take into its sweep the land acquisition for the Project77. The learned Single Judge erred in assuming that the lands acquired from places away from the main alignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous. The Division Bench was right in taking the view that the Project was an integrated project intended for public purpose and, irrespective of where the land was situated, so long as it arose from the terms of the FWA, there was no question of characterising it as unconnected with a public purpose. We are, therefore, in agreement with the finding of the High Court on this issue78. As regards these appeals, the impugned judgment of the High Court (vide Paragraph 32) specifically records that the appellants did not have any right or interest in the land in question on the date that they filed the writ petitions before the High Court. The counsel too admitted the same before the High Court. The High Court accordingly found that the writ petitions were not maintainable. Since the writ petition proceeded on this footing, we cannot permit the appellants to take a different stand before us, contrary to what had been stated before the High Court. Since we have not been convinced otherwise, the writ petitions were not maintainable and the High Court was justified in the view that it took79. In summary, having perused the well considered judgment of the Division Bench which is under appeal in the light of the contentions advanced at the Bar, we are not satisfied that the acquisitions were, in any way, liable to be interfered with by the High Court, even to the extent as held by the learned Single Judge. We agree with the decision of the Division Bench that the acquisition of the entire land for the Project was carried out in consonance with the provisions of the KIAD Act for a public project of great importance for the development of the State of Karnataka. We do not think that a Project of this magnitude and urgency can be held up by individuals raising frivolous and untenable objections thereto. The powers under the KIAD Act represent the powers of eminent domain vested in the State, which may need to be exercised even to the detriment of individuals property rights so long as it achieves a larger public purpose. Looking at the case as a whole, we are satisfied that the Project is intended to represent the larger public interest of the State and that is why it was entered into and implemented all along. | 0 | 13,568 | 5,223 | ### Instruction:
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only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed. 73. It is difficult to accept that the landowners were not aware of the purpose of the acquisition nor can it be accepted that they were unable to file their objections on this ground. As a matter of fact, as the High Court has concurrently found, they did file their objections before the competent authorities. We do not see any prejudice caused to them as a result of the wordings of the notification of acquisition. The concerned authority also heard them on the objections filed after affording them an opportunity to file such objections under Section 28(2) of the KIAD Act. Thus, there is no substance in the contention of the appellants that the notification was vague and hence that the State did not comply with the principles of natural justice. Purpose of Acquisition 74. The next contention urged on behalf of the landowners is that the lands were not being acquired for a public purpose. The counsel who have argued for the landowners have expatiated in their contention by urging that land in excess of what was required under the FWA had been acquired; land far away from the actual alignment of the road and periphery had been acquired, consequently, it is urged that even if the implementation of the Highway Project is assumed to be for a public purpose, acquisition of land far away therefrom would not amount to a public purpose nor would it be covered by the provisions of the KIAD Act. 75. In our view, this was an entirely misconceived argument. As we have pointed out in the earlier part of our judgment, the Project is an integrated infrastructure development project and not merely a highway project. The Project as it has been styled, conceived and implemented was the Bangalore- Mysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with numerous developmental infrastructure activities along with the highway at several points. As an integrated project, it may require the acquisition and transfer of lands even away from the main alignment of the road. 76. The various changes brought about to the KIAD Act, also reflect the intention of the States Legislature to provide for land acquisition for the Project. The expressions Industrial area and Industrial Infrastructural facilities as defined under the KIAD Act, definitely include within their ambit establishment of facilities that contribute to the development of industries. We cannot forget that, as originally enacted, the KIAD Act had a different, narrower definition of Industrial area in Section 2(6). In 1997, the definition was broadened to also include industrial infrastructural facilities and amenities. Further, Section 2(7-a) was added to define Industrial Infrastructural facilities in a manner broad enough to take into its sweep the land acquisition for the Project. 77. The learned Single Judge erred in assuming that the lands acquired from places away from the main alignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous. The Division Bench was right in taking the view that the Project was an integrated project intended for public purpose and, irrespective of where the land was situated, so long as it arose from the terms of the FWA, there was no question of characterising it as unconnected with a public purpose. We are, therefore, in agreement with the finding of the High Court on this issue. Civil Appeal No. 7024-25/05 78. As regards these appeals, the impugned judgment of the High Court (vide Paragraph 32) specifically records that the appellants did not have any right or interest in the land in question on the date that they filed the writ petitions before the High Court. The counsel too admitted the same before the High Court. The High Court accordingly found that the writ petitions were not maintainable. Since the writ petition proceeded on this footing, we cannot permit the appellants to take a different stand before us, contrary to what had been stated before the High Court. Since we have not been convinced otherwise, the writ petitions were not maintainable and the High Court was justified in the view that it took. 79. In summary, having perused the well considered judgment of the Division Bench which is under appeal in the light of the contentions advanced at the Bar, we are not satisfied that the acquisitions were, in any way, liable to be interfered with by the High Court, even to the extent as held by the learned Single Judge. We agree with the decision of the Division Bench that the acquisition of the entire land for the Project was carried out in consonance with the provisions of the KIAD Act for a public project of great importance for the development of the State of Karnataka. We do not think that a Project of this magnitude and urgency can be held up by individuals raising frivolous and untenable objections thereto. The powers under the KIAD Act represent the powers of eminent domain vested in the State, which may need to be exercised even to the detriment of individuals property rights so long as it achieves a larger public purpose. Looking at the case as a whole, we are satisfied that the Project is intended to represent the larger public interest of the State and that is why it was entered into and implemented all along. The Final Orders
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the lands were being acquired for the purposes of industrial development i.e. establishing and developing industrial areas by the KIAD Board. In our opinion, the purpose indicated in the notifications is sufficiently precise and is not affected by the vice of vagueness as alleged. Our attention was drawn to the judgment of this Court in Aflatoon v. Lt. Governor of Delhi [(1975) 4 SCC 285] 73. It is difficult to accept that the landowners were not aware of the purpose of the acquisition nor can it be accepted that they were unable to file their objections on this ground. As a matter of fact, as the High Court has concurrently found, they did file their objections before the competent authorities. We do not see any prejudice caused to them as a result of the wordings of the notification of acquisition. The concerned authority also heard them on the objections filed after affording them an opportunity to file such objections under Section 28(2) of the KIAD Act. Thus, there is no substance in the contention of the appellants that the notification was vague and hence that the State did not comply with the principles of natural justice74. The next contention urged on behalf of the landowners is that the lands were not being acquired for a public purpose. The counsel who have argued for the landowners have expatiated in their contention by urging that land in excess of what was required under the FWA had been acquired; land far away from the actual alignment of the road and periphery had been acquired, consequently, it is urged that even if the implementation of the Highway Project is assumed to be for a public purpose, acquisition of land far away therefrom would not amount to a public purpose nor would it be covered by the provisions of the KIAD Act75. In our view, this was an entirely misconceived argument. As we have pointed out in the earlier part of our judgment, the Project is an integrated infrastructure development project and not merely a highway project. The Project as it has been styled, conceived and implemented was the BangaloreMysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with numerous developmental infrastructure activities along with the highway at several points. As an integrated project, it may require the acquisition and transfer of lands even away from the main alignment of the road76. The various changes brought about to the KIAD Act, also reflect the intention of the States Legislature to provide for land acquisition for the Project. The expressions Industrial area and Industrial Infrastructural facilities as defined under the KIAD Act, definitely include within their ambit establishment of facilities that contribute to the development of industries. We cannot forget that, as originally enacted, the KIAD Act had a different, narrower definition of Industrial area in Section 2(6). In 1997, the definition was broadened to also include industrial infrastructural facilities and amenities. Further, Section) was added to define Industrial Infrastructural facilities in a manner broad enough to take into its sweep the land acquisition for the Project77. The learned Single Judge erred in assuming that the lands acquired from places away from the main alignment of the road were not a part of the Project and that is the reason he was persuaded to hold that only 60% of the land acquisition was justified because it pertained to the land acquired for the main alignment of the highway. This, in the view of the Division Bench, and in our view, was entirely erroneous. The Division Bench was right in taking the view that the Project was an integrated project intended for public purpose and, irrespective of where the land was situated, so long as it arose from the terms of the FWA, there was no question of characterising it as unconnected with a public purpose. We are, therefore, in agreement with the finding of the High Court on this issue78. As regards these appeals, the impugned judgment of the High Court (vide Paragraph 32) specifically records that the appellants did not have any right or interest in the land in question on the date that they filed the writ petitions before the High Court. The counsel too admitted the same before the High Court. The High Court accordingly found that the writ petitions were not maintainable. Since the writ petition proceeded on this footing, we cannot permit the appellants to take a different stand before us, contrary to what had been stated before the High Court. Since we have not been convinced otherwise, the writ petitions were not maintainable and the High Court was justified in the view that it took79. In summary, having perused the well considered judgment of the Division Bench which is under appeal in the light of the contentions advanced at the Bar, we are not satisfied that the acquisitions were, in any way, liable to be interfered with by the High Court, even to the extent as held by the learned Single Judge. We agree with the decision of the Division Bench that the acquisition of the entire land for the Project was carried out in consonance with the provisions of the KIAD Act for a public project of great importance for the development of the State of Karnataka. We do not think that a Project of this magnitude and urgency can be held up by individuals raising frivolous and untenable objections thereto. The powers under the KIAD Act represent the powers of eminent domain vested in the State, which may need to be exercised even to the detriment of individuals property rights so long as it achieves a larger public purpose. Looking at the case as a whole, we are satisfied that the Project is intended to represent the larger public interest of the State and that is why it was entered into and implemented all along.
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Ashim K. Roy Vs. Bipin Bhai Vadilal Mehta | should be exercised to see that the process of law is not abused or misused. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 , a three-Judge Bench of this Court while considering the exercise of power under Section 561-A of the Code (predecessor for Section 482) held as follows :- "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice....... It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice......... Cases may also arise where the allegations in the First Information Report or the complaint, even it they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person." 19. We are firmly of the view that the above observations with all fours apply to the facts of this case in the light of the extracts given above from the complaint itself. The law laid down by this Court in R.P. Kapurs case has stood the test of time and held the field for more than three decades. This Court has applied the above ruling wherever the facts warranted the application. Very recently in State of U.P. v. O.P. Sharma, (1996) 7 SCC 705 , again a three-Judge Bench of this Court quoted with approval the following passage from the State of Bihar v. Rajendra Agrawalla, (1996) 8 SCC 164 : 1996(1) RCR (Crl.) 530 : "It has been held by this Court in several cases that the inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, it such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out." 20. In fairness to the High Court, we must also set out the reasoning of the High Court on this aspect. The High Court rightly observed :- "Reading the complaint and other material on record it appears that even according to the complainant the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products and the Santosh Starch Products are alleged to have advanced the loan to the accused on the same day i.e. on 13.11.1982 and this, according to him, is an offence constituting both criminal breach of trust and conspiracy. Reading the requirement of Section 409 it is clear that proof of entrustment of money is a condition precedent. The ingredients of offence under Section 409 of IPC are to be found in the definition clause of "criminal breach of trust" in Section 405 of IPC. It is, therefore, necessary for the complainant to prove the entrustment of property or dominion over it and in the second instance "dishonest misappropriation" or "conversion to the accused own use" of the property concerned. It is well settled that the dishonest use or disposition of the property in question in violation of any direction of the law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which is made touching the discharge of such trust, or wilfully suffering of any person to do so also constitute the offence of "Criminal Breach of Trust". Now, upon reading the complaint, it becomes clear that it is the specific case of the complainant that the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products alleged to have advanced the loan to the accused on the same day and thus, according to him, is an offence constituting of both criminal breach of trust and conspiracy. This, in my view, does not amount in law into an offence under Section 409 as the ingredients of Section 409 are not attracted. For attracting the provisions of Section 409 one has to allege that the breach of trust is committed by public servant or by banker, merchant or agent, broker or attorney. Reading the complaint, it is nowhere stated that the accused occupy any of these positions. In absence of these particulars in the complaint, in my view, the complainant has prima facie failed to make out the case against the petitioners. Similarly, it is clear from reading the complaint and other material on record that the complainant has failed to make out any case under Section 120-B or 409 of IPC." 21. We are in agreement with the view expressed above by the High Court. | 0[ds]17. A cursory reading of the complaint, in particular the extracts especially the underlined portion as given above, will clearly show that the contesting respondents (accused) will come into picture only after the liability contemplated under the modified memorandum of understanding was discharged. In other words, the accused respondents 1 and 2 could have come into picture only after the transactions complained of had taken place and as noticed above it was the father of the first respondent, who was the Managing Director of Sayaji Industries Ltd. when the transactions in question took place. The respondents Nos. 1 and 2 could have played no part in that transaction as they were not even ordinary Directors at that time in M/s. Sayaji Industries Ltd. Therefore, the allegations made in the complaint even if it is taken in its entirety still they do not constitute an offence either under Sections 120-B and 409 IPC. In the circumstances, it would be manifestly unjust to allow the proceedings in the criminal complaint to be proceeded with against respondents 1 and 2.18. In this connection, though it is very well settled that the power under Section 482 Cr.P.C. should be sparingly invoked with circumspection, this Court consistently has taken the view that it should be exercised to see that the process of law is not abused or misused.In fairness to the High Court, we must also set out the reasoning of the High Court on this aspect. The High Court rightly observedthe complaint and other material on record it appears that even according to the complainant the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products and the Santosh Starch Products are alleged to have advanced the loan to the accused on the same day i.e. on 13.11.1982 and this, according to him, is an offence constituting both criminal breach of trust and conspiracy. Reading the requirement of Section 409 it is clear that proof of entrustment of money is a condition precedent. The ingredients of offence under Section 409 of IPC are to be found in the definition clause of "criminal breach of trust" in Section 405 of IPC. It is, therefore, necessary for the complainant to prove the entrustment of property or dominion over it and in the second instance "dishonest misappropriation" or "conversion to the accused own use" of the property concerned. It is well settled that the dishonest use or disposition of the property in question in violation of any direction of the law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which is made touching the discharge of such trust, or wilfully suffering of any person to do so also constitute the offence of "Criminal Breach of Trust". Now, upon reading the complaint, it becomes clear that it is the specific case of the complainant that the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products alleged to have advanced the loan to the accused on the same day and thus, according to him, is an offence constituting of both criminal breach of trust and conspiracy. This, in my view, does not amount in law into an offence under Section 409 as the ingredients of Section 409 are not attracted. For attracting the provisions of Section 409 one has to allege that the breach of trust is committed by public servant or by banker, merchant or agent, broker or attorney. Reading the complaint, it is nowhere stated that the accused occupy any of these positions. In absence of these particulars in the complaint, in my view, the complainant has prima facie failed to make out the case against the petitioners. Similarly, it is clear from reading the complaint and other material on record that the complainant has failed to make out any case under Section 120-B or 409 of IPC.We are in agreement with the view expressed above by the High Court. | 0 | 4,215 | 725 | ### Instruction:
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should be exercised to see that the process of law is not abused or misused. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 , a three-Judge Bench of this Court while considering the exercise of power under Section 561-A of the Code (predecessor for Section 482) held as follows :- "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice....... It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice......... Cases may also arise where the allegations in the First Information Report or the complaint, even it they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person." 19. We are firmly of the view that the above observations with all fours apply to the facts of this case in the light of the extracts given above from the complaint itself. The law laid down by this Court in R.P. Kapurs case has stood the test of time and held the field for more than three decades. This Court has applied the above ruling wherever the facts warranted the application. Very recently in State of U.P. v. O.P. Sharma, (1996) 7 SCC 705 , again a three-Judge Bench of this Court quoted with approval the following passage from the State of Bihar v. Rajendra Agrawalla, (1996) 8 SCC 164 : 1996(1) RCR (Crl.) 530 : "It has been held by this Court in several cases that the inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, it such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out." 20. In fairness to the High Court, we must also set out the reasoning of the High Court on this aspect. The High Court rightly observed :- "Reading the complaint and other material on record it appears that even according to the complainant the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products and the Santosh Starch Products are alleged to have advanced the loan to the accused on the same day i.e. on 13.11.1982 and this, according to him, is an offence constituting both criminal breach of trust and conspiracy. Reading the requirement of Section 409 it is clear that proof of entrustment of money is a condition precedent. The ingredients of offence under Section 409 of IPC are to be found in the definition clause of "criminal breach of trust" in Section 405 of IPC. It is, therefore, necessary for the complainant to prove the entrustment of property or dominion over it and in the second instance "dishonest misappropriation" or "conversion to the accused own use" of the property concerned. It is well settled that the dishonest use or disposition of the property in question in violation of any direction of the law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which is made touching the discharge of such trust, or wilfully suffering of any person to do so also constitute the offence of "Criminal Breach of Trust". Now, upon reading the complaint, it becomes clear that it is the specific case of the complainant that the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products alleged to have advanced the loan to the accused on the same day and thus, according to him, is an offence constituting of both criminal breach of trust and conspiracy. This, in my view, does not amount in law into an offence under Section 409 as the ingredients of Section 409 are not attracted. For attracting the provisions of Section 409 one has to allege that the breach of trust is committed by public servant or by banker, merchant or agent, broker or attorney. Reading the complaint, it is nowhere stated that the accused occupy any of these positions. In absence of these particulars in the complaint, in my view, the complainant has prima facie failed to make out the case against the petitioners. Similarly, it is clear from reading the complaint and other material on record that the complainant has failed to make out any case under Section 120-B or 409 of IPC." 21. We are in agreement with the view expressed above by the High Court.
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17. A cursory reading of the complaint, in particular the extracts especially the underlined portion as given above, will clearly show that the contesting respondents (accused) will come into picture only after the liability contemplated under the modified memorandum of understanding was discharged. In other words, the accused respondents 1 and 2 could have come into picture only after the transactions complained of had taken place and as noticed above it was the father of the first respondent, who was the Managing Director of Sayaji Industries Ltd. when the transactions in question took place. The respondents Nos. 1 and 2 could have played no part in that transaction as they were not even ordinary Directors at that time in M/s. Sayaji Industries Ltd. Therefore, the allegations made in the complaint even if it is taken in its entirety still they do not constitute an offence either under Sections 120-B and 409 IPC. In the circumstances, it would be manifestly unjust to allow the proceedings in the criminal complaint to be proceeded with against respondents 1 and 2.18. In this connection, though it is very well settled that the power under Section 482 Cr.P.C. should be sparingly invoked with circumspection, this Court consistently has taken the view that it should be exercised to see that the process of law is not abused or misused.In fairness to the High Court, we must also set out the reasoning of the High Court on this aspect. The High Court rightly observedthe complaint and other material on record it appears that even according to the complainant the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products and the Santosh Starch Products are alleged to have advanced the loan to the accused on the same day i.e. on 13.11.1982 and this, according to him, is an offence constituting both criminal breach of trust and conspiracy. Reading the requirement of Section 409 it is clear that proof of entrustment of money is a condition precedent. The ingredients of offence under Section 409 of IPC are to be found in the definition clause of "criminal breach of trust" in Section 405 of IPC. It is, therefore, necessary for the complainant to prove the entrustment of property or dominion over it and in the second instance "dishonest misappropriation" or "conversion to the accused own use" of the property concerned. It is well settled that the dishonest use or disposition of the property in question in violation of any direction of the law prescribing the mode in which the trust is to be discharged or of any legal contract, express or implied, which is made touching the discharge of such trust, or wilfully suffering of any person to do so also constitute the offence of "Criminal Breach of Trust". Now, upon reading the complaint, it becomes clear that it is the specific case of the complainant that the loan was advanced on 13.11.1982 by Sayaji Industries Limited to Santosh Starch Products alleged to have advanced the loan to the accused on the same day and thus, according to him, is an offence constituting of both criminal breach of trust and conspiracy. This, in my view, does not amount in law into an offence under Section 409 as the ingredients of Section 409 are not attracted. For attracting the provisions of Section 409 one has to allege that the breach of trust is committed by public servant or by banker, merchant or agent, broker or attorney. Reading the complaint, it is nowhere stated that the accused occupy any of these positions. In absence of these particulars in the complaint, in my view, the complainant has prima facie failed to make out the case against the petitioners. Similarly, it is clear from reading the complaint and other material on record that the complainant has failed to make out any case under Section 120-B or 409 of IPC.We are in agreement with the view expressed above by the High Court.
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Delhi Administration Vs. State of Haryana and Others | the Delhi State authorities) amounted to an extension of the route which the Act did not permit."We find no force in either of these contentions for the reasons which follow and which are substantially the same as advanced by the High Court in the detailed judgment under appeal.6. Sub-section (2) of Section 63 of the Act states:"(2) A Regional Transport authority when countersigning the permit may attach to the permit any condition which it might have imposed if it has granted The permit, . and may likewise vary any condition attached to the permit by the Authority by which the permit was granted."The conditions which a Regional Transport Authority may attach to a permit while granting it are contained in clause (xiv) above mentioned which runs thus:(xiv) that tickers bearing specified particulars shall be is sued to passengers and shall show the fares actually charged and that records of tickets, issued shall he kept in a specified manner;"According to this clause, the conditions attached to the grant of a permit may be-(a) that the tickets issued to passengers shall bear specified particulars;(b) that the tickets shall show the fares actually charged; A and(c) that records of the tickets issue(l shall be kept in the manner specified.None of these conditions embraces a restriction on the permit holder that he shall not ply his vehicle beyond the specified inter-state route even if that is done under another permit which is valid according to law, and we, therefore, do not see how clause (vix) as above extracted read with sub-sec. (2) of S. 63 of the Act helps the case of the appellant.7. Nor can we agree with the plea that the counter-signature above extracted could be construed as laying down a condition that the permit-holder could not ply his vehicle beyond the specified terminus in the State of Haryana. Learned counsel for the appellant has laid emphasis on the words "Tickets will be issued for the destinations between Delhi and Karnal. Destination boards should be exhibited, " and wants us to interpret them as implying a prohibition on the use of the concerned vehicles beyond Karnal. We are of the opinion, however, that no such interpretation can be placed on them. They merely lay down positive instructions which the permit-holder had to carry out, namely, that he would not refuse the issue of a ticket between the two termini, i.e., Delhi and Karnal, and that he would also exhibit a board stating that the vehicle in question would cover the route from Delhi to Karnal. Beyond that the words do not go and cannot be construed to mean that the vehicle could not ply beyond p Karnal or that a board saying that it was going to Chandigarh via Karnal cloud not be exhibited, or that tickets could not be issued for any stations except those lying between Delhi and Karnal. In fact, the authority counter-signing the permit had no concern at all with any route beyond Karnal. The playing J of the vehicle from Karnal to Chandigarh would be governed not by the permit covering the Delhi-Karnal route or by the counter-signature on it but by another permit issued by the authority competent to deal with the route between Karnal and Chandigarh. The first contention raised on behalf of the appellant is, therefore, found to be without substance.8. We also find no force in the plea that the plying of vehicles by the Haryana Roadways beyond the inter-State route under valid permits issued by the competent authority would amount to an "extension" of the route such as is prohibited by the Act. Reliance in support of the plea was placed on sub-s. (8) of S. 57 of the Act which lays down:"(8) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of Ba new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carriers permit, by increasing the number of vehicles covered by the Permit, shall be treated as an application for the grant of a new permit:Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route Or in any area to increase the frequency of the service so provided, without any increase in me number of vehicles."9. As pointed out by the High Court, the language of the sub-section applies only to a case where the permit-holder applies for the variation of the conditions of his permit by inclusion of a new route or routes or a new area or by increasing the number of services above the specified maximum. In the case before us this situation does not arise at all inasmuch as the Haryana Roadways has not applied for the variation of an y permit in any way and has, on the other hand, taken and exploited quite another permit for an entirely different route from another competent authority. Apart from sub-sec. (8) above mentioned, we have not been referred to any provision of t he Act in support of the plea under consideration which, therefore, fails.10. Learned Counsel for the appellant drew our attention to a Possible unfortunate situation which might result from the conclusions which the High Court has reached and, in our opinion, reached rightly. His apprehension was that in order to make more money and to avoid inconvenience to itself the Haryana Roadways, while operating under the permit pertaining to the Delhi-Karnal route, would perhaps not issue any tickets to passengers bound for stations lying II in between Delhi and Karnal so long as it could find customers travelling directly from Delhi to Chandigarh and that in that event the real purpose of the counter-signature would be wholly defeat ed. | 0[ds]We find no force in either of these contentions for the reasons which follow and which are substantially the same as advanced by the High Court in the detailed judgment under appeal.Nor can we agree with the plea that the counter-signature above extracted could be construed as laying down a condition that the permit-holder could not ply his vehicle beyond the specified terminus in the State of Haryana. Learned counsel for the appellant has laid emphasis on the words "Tickets will be issued for the destinations between Delhi and Karnal. Destination boards should be exhibited, " and wants us to interpret them as implying a prohibition on the use of the concerned vehicles beyond Karnal. We are of the opinion, however, that no such interpretation can be placed on them. They merely lay down positive instructions which the permit-holder had to carry out, namely, that he would not refuse the issue of a ticket between the two termini, i.e., Delhi and Karnal, and that he would also exhibit a board stating that the vehicle in question would cover the route from Delhi to Karnal. Beyond that the words do not go and cannot be construed to mean that the vehicle could not ply beyond p Karnal or that a board saying that it was going to Chandigarh via Karnal cloud not be exhibited, or that tickets could not be issued for any stations except those lying between Delhi and Karnal. In fact, the authority counter-signing the permit had no concern at all with any route beyond Karnal. The playing J of the vehicle from Karnal to Chandigarh would be governed not by the permit covering the Delhi-Karnal route or by the counter-signature on it but by another permit issued by the authority competent to deal with the route between Karnal and Chandigarh. The first contention raised on behalf of the appellant is, therefore, found to be without substance.We also find no force in the plea that the plying of vehicles by the Haryana Roadways beyond the inter-State route under valid permits issued by the competent authority would amount to an "extension" of the route such as is prohibited by the Act. Reliance in support of the plea was placed on sub-s. (8) of S. 57 of the Act which laysAn application to vary the conditions of any permit, other than a temporary permit, by the inclusion of Ba new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carriers permit, by increasing the number of vehicles covered by the Permit, shall be treated as an application for the grant of a new permit:Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route Or in any area to increase the frequency of the service so provided, without any increase in me number ofpointed out by the High Court, the language of the sub-section applies only to a case where the permit-holder applies for the variation of the conditions of his permit by inclusion of a new route or routes or a new area or by increasing the number of services above the specified maximum. In the case before us this situation does not arise at all inasmuch as the Haryana Roadways has not applied for the variation of an y permit in any way and has, on the other hand, taken and exploited quite another permit for an entirely different route from another competent authority. Apart from sub-sec. (8) above mentioned, we have not been referred to any provision of t he Act in support of the plea under consideration which, therefore, fails.Learned Counsel for the appellant drew our attention to a Possible unfortunate situation which might result from the conclusions which the High Court has reached and, in our opinion, reached rightly. His apprehension was that in order to make more money and to avoid inconvenience to itself the Haryana Roadways, while operating under the permit pertaining to the Delhi-Karnal route, would perhaps not issue any tickets to passengers bound for stations lying II in between Delhi and Karnal so long as it could find customers travelling directly from Delhi to Chandigarh and that in that event the real purpose of the counter-signature would be wholly defeat ed. | 0 | 3,149 | 811 | ### Instruction:
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the Delhi State authorities) amounted to an extension of the route which the Act did not permit."We find no force in either of these contentions for the reasons which follow and which are substantially the same as advanced by the High Court in the detailed judgment under appeal.6. Sub-section (2) of Section 63 of the Act states:"(2) A Regional Transport authority when countersigning the permit may attach to the permit any condition which it might have imposed if it has granted The permit, . and may likewise vary any condition attached to the permit by the Authority by which the permit was granted."The conditions which a Regional Transport Authority may attach to a permit while granting it are contained in clause (xiv) above mentioned which runs thus:(xiv) that tickers bearing specified particulars shall be is sued to passengers and shall show the fares actually charged and that records of tickets, issued shall he kept in a specified manner;"According to this clause, the conditions attached to the grant of a permit may be-(a) that the tickets issued to passengers shall bear specified particulars;(b) that the tickets shall show the fares actually charged; A and(c) that records of the tickets issue(l shall be kept in the manner specified.None of these conditions embraces a restriction on the permit holder that he shall not ply his vehicle beyond the specified inter-state route even if that is done under another permit which is valid according to law, and we, therefore, do not see how clause (vix) as above extracted read with sub-sec. (2) of S. 63 of the Act helps the case of the appellant.7. Nor can we agree with the plea that the counter-signature above extracted could be construed as laying down a condition that the permit-holder could not ply his vehicle beyond the specified terminus in the State of Haryana. Learned counsel for the appellant has laid emphasis on the words "Tickets will be issued for the destinations between Delhi and Karnal. Destination boards should be exhibited, " and wants us to interpret them as implying a prohibition on the use of the concerned vehicles beyond Karnal. We are of the opinion, however, that no such interpretation can be placed on them. They merely lay down positive instructions which the permit-holder had to carry out, namely, that he would not refuse the issue of a ticket between the two termini, i.e., Delhi and Karnal, and that he would also exhibit a board stating that the vehicle in question would cover the route from Delhi to Karnal. Beyond that the words do not go and cannot be construed to mean that the vehicle could not ply beyond p Karnal or that a board saying that it was going to Chandigarh via Karnal cloud not be exhibited, or that tickets could not be issued for any stations except those lying between Delhi and Karnal. In fact, the authority counter-signing the permit had no concern at all with any route beyond Karnal. The playing J of the vehicle from Karnal to Chandigarh would be governed not by the permit covering the Delhi-Karnal route or by the counter-signature on it but by another permit issued by the authority competent to deal with the route between Karnal and Chandigarh. The first contention raised on behalf of the appellant is, therefore, found to be without substance.8. We also find no force in the plea that the plying of vehicles by the Haryana Roadways beyond the inter-State route under valid permits issued by the competent authority would amount to an "extension" of the route such as is prohibited by the Act. Reliance in support of the plea was placed on sub-s. (8) of S. 57 of the Act which lays down:"(8) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of Ba new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carriers permit, by increasing the number of vehicles covered by the Permit, shall be treated as an application for the grant of a new permit:Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route Or in any area to increase the frequency of the service so provided, without any increase in me number of vehicles."9. As pointed out by the High Court, the language of the sub-section applies only to a case where the permit-holder applies for the variation of the conditions of his permit by inclusion of a new route or routes or a new area or by increasing the number of services above the specified maximum. In the case before us this situation does not arise at all inasmuch as the Haryana Roadways has not applied for the variation of an y permit in any way and has, on the other hand, taken and exploited quite another permit for an entirely different route from another competent authority. Apart from sub-sec. (8) above mentioned, we have not been referred to any provision of t he Act in support of the plea under consideration which, therefore, fails.10. Learned Counsel for the appellant drew our attention to a Possible unfortunate situation which might result from the conclusions which the High Court has reached and, in our opinion, reached rightly. His apprehension was that in order to make more money and to avoid inconvenience to itself the Haryana Roadways, while operating under the permit pertaining to the Delhi-Karnal route, would perhaps not issue any tickets to passengers bound for stations lying II in between Delhi and Karnal so long as it could find customers travelling directly from Delhi to Chandigarh and that in that event the real purpose of the counter-signature would be wholly defeat ed.
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We find no force in either of these contentions for the reasons which follow and which are substantially the same as advanced by the High Court in the detailed judgment under appeal.Nor can we agree with the plea that the counter-signature above extracted could be construed as laying down a condition that the permit-holder could not ply his vehicle beyond the specified terminus in the State of Haryana. Learned counsel for the appellant has laid emphasis on the words "Tickets will be issued for the destinations between Delhi and Karnal. Destination boards should be exhibited, " and wants us to interpret them as implying a prohibition on the use of the concerned vehicles beyond Karnal. We are of the opinion, however, that no such interpretation can be placed on them. They merely lay down positive instructions which the permit-holder had to carry out, namely, that he would not refuse the issue of a ticket between the two termini, i.e., Delhi and Karnal, and that he would also exhibit a board stating that the vehicle in question would cover the route from Delhi to Karnal. Beyond that the words do not go and cannot be construed to mean that the vehicle could not ply beyond p Karnal or that a board saying that it was going to Chandigarh via Karnal cloud not be exhibited, or that tickets could not be issued for any stations except those lying between Delhi and Karnal. In fact, the authority counter-signing the permit had no concern at all with any route beyond Karnal. The playing J of the vehicle from Karnal to Chandigarh would be governed not by the permit covering the Delhi-Karnal route or by the counter-signature on it but by another permit issued by the authority competent to deal with the route between Karnal and Chandigarh. The first contention raised on behalf of the appellant is, therefore, found to be without substance.We also find no force in the plea that the plying of vehicles by the Haryana Roadways beyond the inter-State route under valid permits issued by the competent authority would amount to an "extension" of the route such as is prohibited by the Act. Reliance in support of the plea was placed on sub-s. (8) of S. 57 of the Act which laysAn application to vary the conditions of any permit, other than a temporary permit, by the inclusion of Ba new route or routes or a new area or, in the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carriers permit, by increasing the number of vehicles covered by the Permit, shall be treated as an application for the grant of a new permit:Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route Or in any area to increase the frequency of the service so provided, without any increase in me number ofpointed out by the High Court, the language of the sub-section applies only to a case where the permit-holder applies for the variation of the conditions of his permit by inclusion of a new route or routes or a new area or by increasing the number of services above the specified maximum. In the case before us this situation does not arise at all inasmuch as the Haryana Roadways has not applied for the variation of an y permit in any way and has, on the other hand, taken and exploited quite another permit for an entirely different route from another competent authority. Apart from sub-sec. (8) above mentioned, we have not been referred to any provision of t he Act in support of the plea under consideration which, therefore, fails.Learned Counsel for the appellant drew our attention to a Possible unfortunate situation which might result from the conclusions which the High Court has reached and, in our opinion, reached rightly. His apprehension was that in order to make more money and to avoid inconvenience to itself the Haryana Roadways, while operating under the permit pertaining to the Delhi-Karnal route, would perhaps not issue any tickets to passengers bound for stations lying II in between Delhi and Karnal so long as it could find customers travelling directly from Delhi to Chandigarh and that in that event the real purpose of the counter-signature would be wholly defeat ed.
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UNION OF INDIA & ORS Vs. GOPAL MEENA & ORS | and Central Excise Commissionerate submitted representations for consideration for promotion to the grade of Superintendents. Such representations were rejected on 4.2.2005. The reason for rejection of the representation was that the officers had joined Central Excise Delhi Zone as Inspectors on inter-Commissionerate on transfer basis in 2003. Therefore, they are too juniors to be included even in the extended zone of consideration. 22. Such communication was challenged by the candidates by an application under Section 19 of the Administrative Tribunal Act, 1985. The reliance was placed upon the three orders in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and, Basudeo Anil. Considering the said orders, the Tribunal returned the following findings: 27. However, we find that DoPT is not made as a party before us. Be that as it may, the fact remains that applicants who had not been in the zone of consideration, yet in the wake of unfilled quota for ST de-reservation or thereafter backlog vacancies is not a correct procedure followed by respondents. 28. We have also in mind the law laid down by the Apex Court that total reservation should not exceed 50%. Accordingly, when the requisite percentage of quota of each reserved category is satisfied then post-based roster shall come into effect. The above methodology shall also hold good while filling up the quota for ST. 29. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs. 23. The order impugned in the Original Application was the order dated 4.2.2005 rejecting the representations of some of the candidates for promotion that the candidates have joined Central Excise (Delhi Zone) as Inspector on Inter Commissionerate transfer basis in the year 2003. The Tribunal has not examined the question of seniority on account of Inter Commissionerate transfer. The order dated 4.2.2005 was set aside and a direction was issued to grant same treatment to SC/ST candidates in ad hoc promotions as well as in regular promotions. 24. After the said decision of the Tribunal, DoPT issued revised guidelines for optimizing the size of zone of consideration on 6.1.2006 independent of the order of the Tribunal dated 19.10.2005, which has been adversely commented upon by the Tribunal. 25. We find that there are three situation of promotion which are required to be examined. One is backlog vacancies for which an Office Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which an Office Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of 30.4.1983, as reproduced above, specifically states that, for regular promotions, procedures and instructions laid down in the Brochure will continue to apply. For regular promotions, Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up. 26. In the Original Application later filed, the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. The grievance of the candidates, first in Original Application No. 688 of 2005 was only filling up of backlog vacancies and not regular or ad hoc promotions. The Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through Departmental Promotion Committee (DPC). 27. The validity of Office Memorandum dated 24.12.1980 has been upheld by this Court in P. Sheshadri. Since the validity of the Office Memorandum has been upheld, the validity cannot be put to test again on the basis of Office Memorandum for filling up the backlog vacancies or ad hoc promotion. 28. The distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious. While filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared. But in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant. This is because all candidates who will be considered for promotion, in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive. 29. Similarly, the exercise undertaken for filling up vacancies on ad hoc basis, stands on a different footing from the exercise undertaken for the grant of regular promotions. The High Court as well as the Tribunal fell into error on two aspects namely: - (i) They did not address the issue whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents; and (ii) They applied the yardstick meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise. | 1[ds]20. In P. Sheshadri, the Office Memorandum dated 24.12.1980, referred to by the learned counsel for the appellant, along with the other Office Memorandums were the subject matter of consideration. This Court held as under:11. …..Further clause (ii) of para 2.3.2. of OM dated 10-3- 1989 contemplates that selection against vacancies reserved for Scheduled Castes and Scheduled Tribes will be made only from those Scheduled Caste/Scheduled Tribe officers who are within the normal zone of consideration prescribed by the Department of Personnel and AR vide OM No. 22011 dated 24-12-1980. It further contemplates that where (sic adequate) number of Scheduled Caste/Scheduled Tribe candidates are not available within the normal field of choice, it may be extended to five times the number of vacancies and Scheduled Caste/Scheduled Tribe candidates (and not any other) coming within the extended field of choice, should also be considered against the vacancies reserved for them. If candidates from Scheduled Castes and Scheduled Tribes obtained on the basis of merit with due regard to seniority, on the same basis as others, are less than the number of vacancies reserved for them, the difference should be made up by selecting candidates of these communities, who are in the zone of consideration, irrespective of merit and benchmark but who are considered for promotion and officers belonging to Scheduled Castes and Scheduled Tribes selected for promotion against vacancies reserved for them from within the extended field of choice would however be placed en bloc below all the other officers selected from within the normal field of choice….21. We find that the Tribunal and the High Courts have missed the real controversy. The Government of India had issued an Office Memorandum dated 26.8.2004 to fill backlog vacancies reserved for Scheduled Caste and Scheduled Tribe in promotion quota as a special drive. Such Office Memorandum was not relating to the Customs and Central Excise Commissionerate or the Indo Tibetan Border Police but to all the employees of the Central Government. The candidates in the Office of Customs and Central Excise Commissionerate submitted representations for consideration for promotion to the grade of Superintendents. Such representations were rejected on 4.2.2005. The reason for rejection of the representation was that the officers had joined Central Excise Delhi Zone as Inspectors on inter-Commissionerate on transfer basis in 2003. Therefore, they are too juniors to be included even in the extended zone of consideration.22. Such communication was challenged by the candidates by an application under Section 19 of the Administrative Tribunal Act, 1985. The reliance was placed upon the three orders in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and, Basudeo Anil. Considering the said orders, the Tribunal returned the following findings:27. However, we find that DoPT is not made as a party before us. Be that as it may, the fact remains that applicants who had not been in the zone of consideration, yet in the wake of unfilled quota for ST de-reservation or thereafter backlog vacancies is not a correct procedure followed by respondents.28. We have also in mind the law laid down by the Apex Court that total reservation should not exceed 50%. Accordingly, when the requisite percentage of quota of each reserved category is satisfied then post-based roster shall come into effect. The above methodology shall also hold good while filling up the quota for ST.29. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs.25. We find that there are three situation of promotion which are required to be examined. One is backlog vacancies for which an Office Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which an Office Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of 30.4.1983, as reproduced above, specifically states that, for regular promotions, procedures and instructions laid down in the Brochure will continue to apply. For regular promotions, Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up.26. In the Original Application later filed, the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. The grievance of the candidates, first in Original Application No. 688 of 2005 was only filling up of backlog vacancies and not regular or ad hoc promotions. The Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through Departmental Promotion Committee (DPC).27. The validity of Office Memorandum dated 24.12.1980 has been upheld by this Court in P. Sheshadri. Since the validity of the Office Memorandum has been upheld, the validity cannot be put to test again on the basis of Office Memorandum for filling up the backlog vacancies or ad hoc promotion.28. The distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious. While filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared. But in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant. This is because all candidates who will be considered for promotion, in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive.29. Similarly, the exercise undertaken for filling up vacancies on ad hoc basis, stands on a different footing from the exercise undertaken for the grant of regular promotions. The High Court as well as the Tribunal fell into error on two aspects namely: -(i) They did not address the issue whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents; and(ii) They applied the yardstick meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise. | 1 | 5,141 | 1,313 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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and Central Excise Commissionerate submitted representations for consideration for promotion to the grade of Superintendents. Such representations were rejected on 4.2.2005. The reason for rejection of the representation was that the officers had joined Central Excise Delhi Zone as Inspectors on inter-Commissionerate on transfer basis in 2003. Therefore, they are too juniors to be included even in the extended zone of consideration. 22. Such communication was challenged by the candidates by an application under Section 19 of the Administrative Tribunal Act, 1985. The reliance was placed upon the three orders in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and, Basudeo Anil. Considering the said orders, the Tribunal returned the following findings: 27. However, we find that DoPT is not made as a party before us. Be that as it may, the fact remains that applicants who had not been in the zone of consideration, yet in the wake of unfilled quota for ST de-reservation or thereafter backlog vacancies is not a correct procedure followed by respondents. 28. We have also in mind the law laid down by the Apex Court that total reservation should not exceed 50%. Accordingly, when the requisite percentage of quota of each reserved category is satisfied then post-based roster shall come into effect. The above methodology shall also hold good while filling up the quota for ST. 29. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs. 23. The order impugned in the Original Application was the order dated 4.2.2005 rejecting the representations of some of the candidates for promotion that the candidates have joined Central Excise (Delhi Zone) as Inspector on Inter Commissionerate transfer basis in the year 2003. The Tribunal has not examined the question of seniority on account of Inter Commissionerate transfer. The order dated 4.2.2005 was set aside and a direction was issued to grant same treatment to SC/ST candidates in ad hoc promotions as well as in regular promotions. 24. After the said decision of the Tribunal, DoPT issued revised guidelines for optimizing the size of zone of consideration on 6.1.2006 independent of the order of the Tribunal dated 19.10.2005, which has been adversely commented upon by the Tribunal. 25. We find that there are three situation of promotion which are required to be examined. One is backlog vacancies for which an Office Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which an Office Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of 30.4.1983, as reproduced above, specifically states that, for regular promotions, procedures and instructions laid down in the Brochure will continue to apply. For regular promotions, Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up. 26. In the Original Application later filed, the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. The grievance of the candidates, first in Original Application No. 688 of 2005 was only filling up of backlog vacancies and not regular or ad hoc promotions. The Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through Departmental Promotion Committee (DPC). 27. The validity of Office Memorandum dated 24.12.1980 has been upheld by this Court in P. Sheshadri. Since the validity of the Office Memorandum has been upheld, the validity cannot be put to test again on the basis of Office Memorandum for filling up the backlog vacancies or ad hoc promotion. 28. The distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious. While filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared. But in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant. This is because all candidates who will be considered for promotion, in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive. 29. Similarly, the exercise undertaken for filling up vacancies on ad hoc basis, stands on a different footing from the exercise undertaken for the grant of regular promotions. The High Court as well as the Tribunal fell into error on two aspects namely: - (i) They did not address the issue whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents; and (ii) They applied the yardstick meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise.
### Response:
1
### Explanation:
are in the zone of consideration, irrespective of merit and benchmark but who are considered for promotion and officers belonging to Scheduled Castes and Scheduled Tribes selected for promotion against vacancies reserved for them from within the extended field of choice would however be placed en bloc below all the other officers selected from within the normal field of choice….21. We find that the Tribunal and the High Courts have missed the real controversy. The Government of India had issued an Office Memorandum dated 26.8.2004 to fill backlog vacancies reserved for Scheduled Caste and Scheduled Tribe in promotion quota as a special drive. Such Office Memorandum was not relating to the Customs and Central Excise Commissionerate or the Indo Tibetan Border Police but to all the employees of the Central Government. The candidates in the Office of Customs and Central Excise Commissionerate submitted representations for consideration for promotion to the grade of Superintendents. Such representations were rejected on 4.2.2005. The reason for rejection of the representation was that the officers had joined Central Excise Delhi Zone as Inspectors on inter-Commissionerate on transfer basis in 2003. Therefore, they are too juniors to be included even in the extended zone of consideration.22. Such communication was challenged by the candidates by an application under Section 19 of the Administrative Tribunal Act, 1985. The reliance was placed upon the three orders in U.P. Rajya Vidyut Parishad SC/ST Karamchari Kalyan Sangh; C.D. Bhatia; and, Basudeo Anil. Considering the said orders, the Tribunal returned the following findings:27. However, we find that DoPT is not made as a party before us. Be that as it may, the fact remains that applicants who had not been in the zone of consideration, yet in the wake of unfilled quota for ST de-reservation or thereafter backlog vacancies is not a correct procedure followed by respondents.28. We have also in mind the law laid down by the Apex Court that total reservation should not exceed 50%. Accordingly, when the requisite percentage of quota of each reserved category is satisfied then post-based roster shall come into effect. The above methodology shall also hold good while filling up the quota for ST.29. In the result, for the foregoing reasons, this OA is partly allowed. Impugned order is set aside. Respondents are directed to take up the matter of extension of same treatment which has been meted out to SC/ST candidates in ad hoc promotions vide DoPT OM dated 15.3.2002 to be extended in regular promotions as well and on forwarding a copy of this order to the DoPT after consideration of our observations and decisions of the Apex Court and on a decision taken by the DoPT respondents shall consider applicants for promotion to the posts of Superintendents in their reserved quota and till then, if not already done, shall neither de-reserve the backlog vacancies meant for ST categories nor fill up these posts in any manner whatsoever. No costs.25. We find that there are three situation of promotion which are required to be examined. One is backlog vacancies for which an Office Memorandum dated 26.8.2004 was issued. Second is ad hoc promotions for which an Office Memorandum dated 30.4.1983 was issued followed by 30.9.1983 and 7.9.2000. Clause 7 of the Office Memorandum of 30.4.1983, as reproduced above, specifically states that, for regular promotions, procedures and instructions laid down in the Brochure will continue to apply. For regular promotions, Office Memorandum has been issued on 24.12.1980, 22.4.1992 and 6.1.2006 wherein zone of consideration was prescribed keeping in view the number of vacancies which are to be filled up.26. In the Original Application later filed, the candidates challenged the Office Memorandum dated 6.1.2006 which is in relation to regular promotions. There is no parity between backlog vacancies covered in Office Memorandum dated 26.8.2004 and the regular promotion covered in Office Memorandum dated 24.12.1980 and/or 6.1.2006. Therefore, the Tribunal as well as the High Court have completely missed the issue involved in the subsequent applications filed by the candidates. The grievance of the candidates, first in Original Application No. 688 of 2005 was only filling up of backlog vacancies and not regular or ad hoc promotions. The Tribunal and the High Court had missed the distinction between ad hoc promotions and the regular promotions to be made through Departmental Promotion Committee (DPC).27. The validity of Office Memorandum dated 24.12.1980 has been upheld by this Court in P. Sheshadri. Since the validity of the Office Memorandum has been upheld, the validity cannot be put to test again on the basis of Office Memorandum for filling up the backlog vacancies or ad hoc promotion.28. The distinction between a special drive for filling up backlog vacancies and regular promotion to candidates both from the reserved and the unreserved categories, is too obvious. While filling up vacancies by way of promotion on regular basis, a DPC is constituted and the profile of the candidates coming within the zone of consideration is prepared. But in a special drive for filling up the backlog vacancies meant for reserved category candidates, such an exercise become redundant. This is because all candidates who will be considered for promotion, in a special drive, will invariably belong to the same reserved category, as otherwise it will cease to be a special drive.29. Similarly, the exercise undertaken for filling up vacancies on ad hoc basis, stands on a different footing from the exercise undertaken for the grant of regular promotions. The High Court as well as the Tribunal fell into error on two aspects namely: -(i) They did not address the issue whether there was a special recruitment drive for filling up of backlog vacancies and whether there was a failure to consider the case of the respondents; and(ii) They applied the yardstick meant for ad hoc promotions to the case of regular promotions, though the case of the candidates was for unfilled backlog vacancies. This fundamental error of focus has resulted in the Tribunal and the High Court answering a question that did not arise.
|
Deputy Commissioner Of Sales Tax (Law) Board Of A Revenue(T Vs. Advani Oorlikon (P) Ltd. Trivandrum | no reference to sums allowed by way of trade discount. It is contended that in effect the assessee enters into two distinct contracts with the retailer, the first contract relates to the sale of goods at the catalogue price and second contract stipulates that notwithstanding the liability of the retailer under the first contract to pay the entire sale price, he may actually pay the sale price less trade discount. On that submission, it is sought to be urged that since the sale is effected under the first contract, the entire amount treated as consideration for the sale under that contract has to be included in the taxable turnover. 4. We have considered the matter carefully and in our judgment the appeal must fail. 5. At the outset, it is appropriate that we set forth the two relevant definition contained in the Central Sales Tax Act. Section 2(i) defines "turnover" to mean "the aggregate of the sale prices received and receivable by him (the dealer) in respect of sales of any goods in the course of inter-State trade or commerce......". And section 2(h) of the Act defines the expression "sale price" to mean amount payable to dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade......". It is true that a deduction on account of cash discount is alone specifically comtemplated from the sale consideration in the definition of "sale price by section 2(h), and there is no doubt that cash discount cannot be confused with trade discount. The two concepts are wholly distinct and separate. Cash discounts allowed when the purchaser makes payment promptly or within the period of credit allowed. It is a discount granted in consideration of expeditious payment. A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. The allowed enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense. The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. The net amount is the sale price, and it is that net amount which is entered in the books of the respective parties as the amount realisable. Orient Paper Mills Ltd. v. State Orissa - (1975) 35 S.T.C. 84. 6. Under the Central Sales Tax Act, the sale price which entres into the computation of the turnover is the consideration for which the goods are sold by the assessee. In a case where trade discount is allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount. The trade discount does not enter into the composition of the sale price, but exists apart from and outside it prior to it. It is immaterial that the definition of "sale price" in Section 2(h) of the Act does not expressly provided for the deduction of trade discount from the sale price. Indeed, having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount.Nor is there any question here of two successive agreements between the parties, one providing for sale of goods at the catalogue price and the other providing for an allowance by way of trade discount. Having regard to the nature of a trade discount, there is only one sale price between the dealer and the retailer, and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount. There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price. 7. We have been referred to Ambica Mills Ltd. & Ors. v. The State of Gujarat & Anr - (1964) 15 STC 367. Where the Gujarat High Court rejected the claim of the manufacturer to a deduction of the remission allowed from the sale price to the purchaser on account of a general fall in prices when delivery of the goods was effected. In our opinion, the case supports the view we are taking. The sale price remained the stipulated price in the contract between the parties. The fall in prices occurred after the contract of sale had been finalised, and with a view to relieving the purchaser to some extent of the loss which could have been occasioned thereby, the manufacturer sought to bear part of the loss by granting a rebate or remission to the purchaser. The Revenue relies on India Pistons Limited v. State of Tamil Nadu - (1974) 33 S.T.C. 472. In that case, the bonus of which deduction was sought by the assessee from the turnover was paid under a bonus discount scheme, not to all customers but only to distributors whose net purchases from the assessee exceeded the target figure agreed to between the parties. The amount of rebate allowed was credited to the customers account and treated as a reserve from which the distributors could make future purchases. The rebate of bonus discount was not allowed as a deduction by the Madras High Court and, in our opinion, rightly so. It was in the nature of an incentive bonus paid to distributors whose net purchases exceeded the target figure. It did not, and could not affect the sale value of the goods sold by the assessees. The sale price remained undisturbed in the contract between the parties. 8. In our judgment, the sale price which enters into the computation of the assessees turnover for the purpose of assessment under the Central Sales Tax Act is obtained after deducting the trade discount from the catalogue price. The trade discount allowed by the assesee cannot be included in the turnover. | 0[ds]4. We have considered the matter carefully and in our judgment the appeal must failIt is immaterial that the definition of "sale price" in Section 2(h) of the Act does not expressly provided for the deduction of trade discount from the sale price. Indeed, having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount.Nor is there any question here of two successive agreements between the parties, one providing for sale of goods at the catalogue price and the other providing for an allowance by way of trade discount. Having regard to the nature of a trade discount, there is only one sale price between the dealer and the retailer, and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount. There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price8. In our judgment, the sale price which enters into the computation of the assessees turnover for the purpose of assessment under the Central Sales Tax Act is obtained after deducting the trade discount from the catalogue price. The trade discount allowed by the assesee cannot be included in the turnover. | 0 | 1,474 | 255 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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no reference to sums allowed by way of trade discount. It is contended that in effect the assessee enters into two distinct contracts with the retailer, the first contract relates to the sale of goods at the catalogue price and second contract stipulates that notwithstanding the liability of the retailer under the first contract to pay the entire sale price, he may actually pay the sale price less trade discount. On that submission, it is sought to be urged that since the sale is effected under the first contract, the entire amount treated as consideration for the sale under that contract has to be included in the taxable turnover. 4. We have considered the matter carefully and in our judgment the appeal must fail. 5. At the outset, it is appropriate that we set forth the two relevant definition contained in the Central Sales Tax Act. Section 2(i) defines "turnover" to mean "the aggregate of the sale prices received and receivable by him (the dealer) in respect of sales of any goods in the course of inter-State trade or commerce......". And section 2(h) of the Act defines the expression "sale price" to mean amount payable to dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade......". It is true that a deduction on account of cash discount is alone specifically comtemplated from the sale consideration in the definition of "sale price by section 2(h), and there is no doubt that cash discount cannot be confused with trade discount. The two concepts are wholly distinct and separate. Cash discounts allowed when the purchaser makes payment promptly or within the period of credit allowed. It is a discount granted in consideration of expeditious payment. A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. The allowed enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense. The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. The net amount is the sale price, and it is that net amount which is entered in the books of the respective parties as the amount realisable. Orient Paper Mills Ltd. v. State Orissa - (1975) 35 S.T.C. 84. 6. Under the Central Sales Tax Act, the sale price which entres into the computation of the turnover is the consideration for which the goods are sold by the assessee. In a case where trade discount is allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount. The trade discount does not enter into the composition of the sale price, but exists apart from and outside it prior to it. It is immaterial that the definition of "sale price" in Section 2(h) of the Act does not expressly provided for the deduction of trade discount from the sale price. Indeed, having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount.Nor is there any question here of two successive agreements between the parties, one providing for sale of goods at the catalogue price and the other providing for an allowance by way of trade discount. Having regard to the nature of a trade discount, there is only one sale price between the dealer and the retailer, and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount. There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price. 7. We have been referred to Ambica Mills Ltd. & Ors. v. The State of Gujarat & Anr - (1964) 15 STC 367. Where the Gujarat High Court rejected the claim of the manufacturer to a deduction of the remission allowed from the sale price to the purchaser on account of a general fall in prices when delivery of the goods was effected. In our opinion, the case supports the view we are taking. The sale price remained the stipulated price in the contract between the parties. The fall in prices occurred after the contract of sale had been finalised, and with a view to relieving the purchaser to some extent of the loss which could have been occasioned thereby, the manufacturer sought to bear part of the loss by granting a rebate or remission to the purchaser. The Revenue relies on India Pistons Limited v. State of Tamil Nadu - (1974) 33 S.T.C. 472. In that case, the bonus of which deduction was sought by the assessee from the turnover was paid under a bonus discount scheme, not to all customers but only to distributors whose net purchases from the assessee exceeded the target figure agreed to between the parties. The amount of rebate allowed was credited to the customers account and treated as a reserve from which the distributors could make future purchases. The rebate of bonus discount was not allowed as a deduction by the Madras High Court and, in our opinion, rightly so. It was in the nature of an incentive bonus paid to distributors whose net purchases exceeded the target figure. It did not, and could not affect the sale value of the goods sold by the assessees. The sale price remained undisturbed in the contract between the parties. 8. In our judgment, the sale price which enters into the computation of the assessees turnover for the purpose of assessment under the Central Sales Tax Act is obtained after deducting the trade discount from the catalogue price. The trade discount allowed by the assesee cannot be included in the turnover.
### Response:
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### Explanation:
4. We have considered the matter carefully and in our judgment the appeal must failIt is immaterial that the definition of "sale price" in Section 2(h) of the Act does not expressly provided for the deduction of trade discount from the sale price. Indeed, having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount.Nor is there any question here of two successive agreements between the parties, one providing for sale of goods at the catalogue price and the other providing for an allowance by way of trade discount. Having regard to the nature of a trade discount, there is only one sale price between the dealer and the retailer, and that is the price payable by the retailer calculated as the difference between the catalogue price and the trade discount. There is only one contract between the parties, the contract being that the goods will be sold by the dealer to the retailer at the aforesaid sale price8. In our judgment, the sale price which enters into the computation of the assessees turnover for the purpose of assessment under the Central Sales Tax Act is obtained after deducting the trade discount from the catalogue price. The trade discount allowed by the assesee cannot be included in the turnover.
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GOPALAKRISHNA (D) BYLRS. Vs. NARAYANAGOWDA (DEAD) BY LRS. | of Ramanna. Secondly, even assuming for a moment that Jankamma was the reversioner whether it was incumbent upon her to institute proceedings for recovery of possession within 12 years of death of Seethamma.25. Taking up the second question, we notice the following commentary of Mulla on Hindu Law:207. Reversioner’s suit for possession and limitation._ A suit by reversioners, entitled to succeed to the estate on the death of a widow or other limited heir, for possession of immovable property from an alienee from her must be brought within 12 years from her death (the Indian Limitation Act, 1908, Schedule I, Article 141), and of movable property, within six years from that date.Now see Articles 65, 109 and 113 of the new Limitation Act, 1963.The reversioner may sue for possession without suing to have alienation set aside. The reason is that he is entitled to treat the unauthorized alienation as a nullity without the intervention of any court."26. Learned counsel for the respondents has placed considerable reliance on the judgment of this Court in Kalipada Chakraborti & Anr. v. Palani Bala Devi & Ors. [AIR 1953 SC 125 ]. Therein, this Court dealt with transfer of Shebeiti right by Hindu Widow and the suit by reversioners challenging the same. This Court held as follows:“But all doubts on this point were set at rest by the decision of the Privy Council itself in Faggo v. Utsava [(1929) 56 I.A. 267] and the law can now be taken to be perfectly well settled that except where a decree has been obtained fairly and properly and without fraud and collusion against the Hindu female heir in respect to a property held by her as a limited owner, the cause of action for a suit to be instituted by a reversioner to recover such property either against an alienee from the female heir or a trespasser who held adversely to her accrues only on the death of the female heir. This principle, which has been recognized in the law of limitation in this country eversince 1871 seems to us to be quite in accordance with the acknowledged principles of Hindu law. The right of reversionary heirs is in the nature of spes successionis, and as the reversioners do not trace their title through or from the widow, it would be manifestly unjust if they are to lose their rights simply because the widow has suffered the property to be destroyed by the adverse possession of a stranger. The contention raised by Mr. Ghose as regards the general principle to be applied in such cases cannot, therefore, be regarded as sound.Ordinarily, there are two limitations upon a widow’s estate. In the first place, her rights of alienation are restricted and the in the second place, after her death the property goes not to her heirs but to the heirs of the last male owner.”This view has been followed in the judgment reported in AIR 1969 SC 204 . The law of limitation relevant at that point of time was the Indian Limitation Act, 1908. It is crucial to notice Articles 140 and 141:-tableIt is next relevant to notice Section 28 of the Act:-“28. Extinguishment of right to property. - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”In other words, while it was open to the reversioners to ignore an alienation made by a Hindu widow and the period of limitation would not start to run upon a transfer effected by the Hindu widow, undoubtedly, the period of limitation for filing a suit for recovery of possession would commence upon the death of the widow.27. The property was alienated by Seethamma, the widow of Ramanna in favour of her brother Srinivas Rao in the year 1913. Undoubtedly, it was open to the reversioner to proceed on the basis that such alienation does not bind her.28. Thereafter, in 1938, Seethamma passed away. Even proceeding on the basis that Jankamma, the grand-daughter of Ramanna was a reversioner, her estate in expectancy became vested in her, upon the death of the Ramanna’s widow, Seethamma in 1938. While it is true that it was open to the reversioner to ignore the sale deed executed by the widow, as not binding on her, as far as suit for recovery of possession, the law clearly provided for a period of 12 years and the period of limitation started with the death of the limited owner, namely, the widow in 1938. The time started ticking with the passing away of the widow in 1938. The period of limitation being 12 years, it ran out in 1950. With the running out of the period of limitation prescribed under the Limitation Act, 1908 (by Articles 140 and 141), the very right of the alleged reversioner Jankamma also came to an end. Thus, when she executed the sale in the year 1955 in favour of the appellants, she could not have conveyed any right. That apart, even for a moment, proceeding on the basis that period of limitation would start from 12 years from 1955 when the sale deed was executed in favour of the appellants by Jankamma even that period ran out in 1967. Admittedly, the suits were filed several years even after 1967. Section 31 of the Limitation Act, 1963 reads as follows:-“31 Provisions as to barred or pending suits, etc:- Nothing in this Act shall,—(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), expired before the commencement of this Act; or(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.”Quite clearly much before the Limitation Act, 1963 came into force, the period of limitation for instituting the suits had expired. This is apart from the effect of not filing such a suit on the very right itself. | 0[ds]Findings in the earlier Second Appeal17. The findings in the earlier Second Appeals which emanated from the suits filed by the respondents are as follows: The High Court did not interfere with a finding that the sale deeds executed by Seethamma in favour of Srinivas Rao were genuine. Equally, the High Court affirmed the finding that the respondents in this appeal were in possession of the properties purchased by them. Jankamma was found to be the grand-daughter of Ramanna. Further, the Court proceeded to pose the question whether Venkamma was a daughter of Ramanna and whether she was alive when Ramanna died having regard to Section 10(2)(g) of the State Act. It was noticed that both the Courts below had found that Venkamma was the daughter of Ramanna and Jankamma was the daughter of Venkamma. It was, however, observed that there were no pleadings as to whether Venkamma survived or predeceased Ramanna.18. The Court was of the view that the first issue in all the cases was whether Seethamma became absolute owner of the properties of her husband and it was equally true that the processes by which she could become such owner would be by her being alive and there being no surviving child of Ramanna when he died. It was found that the parties did not have the opportunity to produce all evidences in this regard and an investigation was required. The finding that Seethamma became absolute owner ofproperties was set aside. The Court, however, proceeded to find that the fact that the aforesaid finding was set aside did not mean that the Court held that Seethamma had not become the absolute owner. No opinion was expressed as it was dependent upon the question whether Venkamma was alive when Ramanna died and materials in this regard were insufficient.19. On this basis, the decree declaring the respondents to be the owners of the property was set aside. The decree restraining the appellants from disturbing thepossession was also affirmed. It may be seen from the judgment of the High Court in the earlier round of litigation that the respondents were found to be in possession. The question relating to title was essentially not decided as is clear from what was found by the High Court. The Court left it open to be decided on the basis that Seethamma would become absolute owner if Venkamma - the daughter of Ramanna had not survivedis no dispute that the parties are governed by the Madras School of Hindu Law. Thereunder, every female who succeeded as a heir whether to a male or a female, took a limited estate in the property inherited by her.the female owning stridhana property was conferred absolute powers to dispose of the same as also in the matter of enjoyment. The disposal could be by will or transfer inter vivos. The only limitation was the law relating to guardianship would continue to operate during minority. Reverting back to Section 10 (2) (g), the property inherited by a woman inter alia from her husband was brought under the definition of stridhana. This was a clear expansion of arights by conferring upon a widow absolute right over property inherited from her husband being a radical departure from theestate under Hindu Law which was a limited estate and under which there was no such absolute right of disposal. There was however a catch and it was this. If the husband was survived by the widow and a daughter or a daughter son, then theestate as understood in Hindu Law was to continue undisturbed. If a daughter or grandson as mentioned did not survive the husband, the widow would get the absolute right notwithstanding Section 10(1) defining stridhana as meaning property of any description belonging to a Hindu female other than which she has by law ‘only a limitedThus though under Section 4, the widow would inherit in preference to the daughter anddaughter the nature of the right is as contained in Section 10 and Section 11, the effect of which we have called out.22. The next thing which we must ascertain is who are the reversioners. The reversioners are the heirs of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if they be then living (as per para 175 of the Mulla on Hindu Law).Under the Hindu Law, a widow took a limited estate. She was not a trustee for the reversioners. She was owner of the properties. But she could alienate the property only for necessity or benefit of the estate. By the State Act, theestate became stridhana, which by virtue of Section 11 conferred upon her absolute right to dispose the property either by way of inter vivos transfer or will. The State Act came into force on 01.01.1934. When the succession opened on Ramanna dying in 1907, he was survived by both his widow Seethama and also his daughter Venkamma. Therefore, it is quite clear that Seethama would not get an absolute right under Section 11 of the State Act. When succession opened in this case to the estate of Ramanna, in fact, the State Act was not in force at that time. The estate which was inherited by Seethama was that of a widow. Therefore, be it from stand point of Hindu Law as applicable prior to the State Act or the provisions of the State Act, Seethama did not acquire absolute rights. As such, the right which she had, was the right of the Hindu widow under Hindu Law.Further, as long as Seethamma - widow of Ramanna was alive, no reversioners had any vested interest. The daughter of Ramanna (Venkamma) through his first wife passed away in the year 1910. At that time, Seethamma the widow of Ramanna was alive. Therefore, she (Venkamma) would not get any right in the property. Seethamma died only in theWhen Seethamma died in 1938, no doubt Jankamma was alive. It is here that we must consider the argument of learned counsel for the respondents that the daughter of a daughter was not recognized as a heir. When succession opened upon the death of the widow, in this case, namely Seethamma in the year 1938, if Jankamma could be treated as the reversioner being grand daughter of the last full owner, then the property would vest in Jankamma.24. There would be two obstacles for the appellants:- firstly, it would have to be held that Jankamma being the grand daughter of Ramanna was a reversioner upon the death of Seethamma, the widow of Ramanna. Secondly, even assuming for a moment that Jankamma was the reversioner whether it was incumbent upon her to institute proceedings for recovery of possession within 12 years of death ofother words, while it was open to the reversioners to ignore an alienation made by a Hindu widow and the period of limitation would not start to run upon a transfer effected by the Hindu widow, undoubtedly, the period of limitation for filing a suit for recovery of possession would commence upon the death of the widow.27. The property was alienated by Seethamma, the widow of Ramanna in favour of her brother Srinivas Rao in the year 1913. Undoubtedly, it was open to the reversioner to proceed on the basis that such alienation does not bind her.28. Thereafter, in 1938, Seethamma passed away. Even proceeding on the basis that Jankamma, the grand-daughter of Ramanna was a reversioner, her estate in expectancy became vested in her, upon the death of thewidow, Seethamma in 1938. While it is true that it was open to the reversioner to ignore the sale deed executed by the widow, as not binding on her, as far as suit for recovery of possession, the law clearly provided for a period of 12 years and the period of limitation started with the death of the limited owner, namely, the widow in 1938. The time started ticking with the passing away of the widow in 1938. The period of limitation being 12 years, it ran out in 1950. With the running out of the period of limitation prescribed under the Limitation Act, 1908 (by Articles 140 and 141), the very right of the alleged reversioner Jankamma also came to an end. Thus, when she executed the sale in the year 1955 in favour of the appellants, she could not have conveyed any right. That apart, even for a moment, proceeding on the basis that period of limitation would start from 12 years from 1955 when the sale deed was executed in favour of the appellants by Jankamma even that period ran out in 1967. Admittedly, the suits were filed several years even after 1967.clearly much before the Limitation Act, 1963 came into force, the period of limitation for instituting the suits had expired. This is apart from the effect of not filing such a suit on the very right itself. | 0 | 6,773 | 1,642 | ### Instruction:
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of Ramanna. Secondly, even assuming for a moment that Jankamma was the reversioner whether it was incumbent upon her to institute proceedings for recovery of possession within 12 years of death of Seethamma.25. Taking up the second question, we notice the following commentary of Mulla on Hindu Law:207. Reversioner’s suit for possession and limitation._ A suit by reversioners, entitled to succeed to the estate on the death of a widow or other limited heir, for possession of immovable property from an alienee from her must be brought within 12 years from her death (the Indian Limitation Act, 1908, Schedule I, Article 141), and of movable property, within six years from that date.Now see Articles 65, 109 and 113 of the new Limitation Act, 1963.The reversioner may sue for possession without suing to have alienation set aside. The reason is that he is entitled to treat the unauthorized alienation as a nullity without the intervention of any court."26. Learned counsel for the respondents has placed considerable reliance on the judgment of this Court in Kalipada Chakraborti & Anr. v. Palani Bala Devi & Ors. [AIR 1953 SC 125 ]. Therein, this Court dealt with transfer of Shebeiti right by Hindu Widow and the suit by reversioners challenging the same. This Court held as follows:“But all doubts on this point were set at rest by the decision of the Privy Council itself in Faggo v. Utsava [(1929) 56 I.A. 267] and the law can now be taken to be perfectly well settled that except where a decree has been obtained fairly and properly and without fraud and collusion against the Hindu female heir in respect to a property held by her as a limited owner, the cause of action for a suit to be instituted by a reversioner to recover such property either against an alienee from the female heir or a trespasser who held adversely to her accrues only on the death of the female heir. This principle, which has been recognized in the law of limitation in this country eversince 1871 seems to us to be quite in accordance with the acknowledged principles of Hindu law. The right of reversionary heirs is in the nature of spes successionis, and as the reversioners do not trace their title through or from the widow, it would be manifestly unjust if they are to lose their rights simply because the widow has suffered the property to be destroyed by the adverse possession of a stranger. The contention raised by Mr. Ghose as regards the general principle to be applied in such cases cannot, therefore, be regarded as sound.Ordinarily, there are two limitations upon a widow’s estate. In the first place, her rights of alienation are restricted and the in the second place, after her death the property goes not to her heirs but to the heirs of the last male owner.”This view has been followed in the judgment reported in AIR 1969 SC 204 . The law of limitation relevant at that point of time was the Indian Limitation Act, 1908. It is crucial to notice Articles 140 and 141:-tableIt is next relevant to notice Section 28 of the Act:-“28. Extinguishment of right to property. - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”In other words, while it was open to the reversioners to ignore an alienation made by a Hindu widow and the period of limitation would not start to run upon a transfer effected by the Hindu widow, undoubtedly, the period of limitation for filing a suit for recovery of possession would commence upon the death of the widow.27. The property was alienated by Seethamma, the widow of Ramanna in favour of her brother Srinivas Rao in the year 1913. Undoubtedly, it was open to the reversioner to proceed on the basis that such alienation does not bind her.28. Thereafter, in 1938, Seethamma passed away. Even proceeding on the basis that Jankamma, the grand-daughter of Ramanna was a reversioner, her estate in expectancy became vested in her, upon the death of the Ramanna’s widow, Seethamma in 1938. While it is true that it was open to the reversioner to ignore the sale deed executed by the widow, as not binding on her, as far as suit for recovery of possession, the law clearly provided for a period of 12 years and the period of limitation started with the death of the limited owner, namely, the widow in 1938. The time started ticking with the passing away of the widow in 1938. The period of limitation being 12 years, it ran out in 1950. With the running out of the period of limitation prescribed under the Limitation Act, 1908 (by Articles 140 and 141), the very right of the alleged reversioner Jankamma also came to an end. Thus, when she executed the sale in the year 1955 in favour of the appellants, she could not have conveyed any right. That apart, even for a moment, proceeding on the basis that period of limitation would start from 12 years from 1955 when the sale deed was executed in favour of the appellants by Jankamma even that period ran out in 1967. Admittedly, the suits were filed several years even after 1967. Section 31 of the Limitation Act, 1963 reads as follows:-“31 Provisions as to barred or pending suits, etc:- Nothing in this Act shall,—(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), expired before the commencement of this Act; or(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.”Quite clearly much before the Limitation Act, 1963 came into force, the period of limitation for instituting the suits had expired. This is apart from the effect of not filing such a suit on the very right itself.
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Section 10 (2) (g), the property inherited by a woman inter alia from her husband was brought under the definition of stridhana. This was a clear expansion of arights by conferring upon a widow absolute right over property inherited from her husband being a radical departure from theestate under Hindu Law which was a limited estate and under which there was no such absolute right of disposal. There was however a catch and it was this. If the husband was survived by the widow and a daughter or a daughter son, then theestate as understood in Hindu Law was to continue undisturbed. If a daughter or grandson as mentioned did not survive the husband, the widow would get the absolute right notwithstanding Section 10(1) defining stridhana as meaning property of any description belonging to a Hindu female other than which she has by law ‘only a limitedThus though under Section 4, the widow would inherit in preference to the daughter anddaughter the nature of the right is as contained in Section 10 and Section 11, the effect of which we have called out.22. The next thing which we must ascertain is who are the reversioners. The reversioners are the heirs of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if they be then living (as per para 175 of the Mulla on Hindu Law).Under the Hindu Law, a widow took a limited estate. She was not a trustee for the reversioners. She was owner of the properties. But she could alienate the property only for necessity or benefit of the estate. By the State Act, theestate became stridhana, which by virtue of Section 11 conferred upon her absolute right to dispose the property either by way of inter vivos transfer or will. The State Act came into force on 01.01.1934. When the succession opened on Ramanna dying in 1907, he was survived by both his widow Seethama and also his daughter Venkamma. Therefore, it is quite clear that Seethama would not get an absolute right under Section 11 of the State Act. When succession opened in this case to the estate of Ramanna, in fact, the State Act was not in force at that time. The estate which was inherited by Seethama was that of a widow. Therefore, be it from stand point of Hindu Law as applicable prior to the State Act or the provisions of the State Act, Seethama did not acquire absolute rights. As such, the right which she had, was the right of the Hindu widow under Hindu Law.Further, as long as Seethamma - widow of Ramanna was alive, no reversioners had any vested interest. The daughter of Ramanna (Venkamma) through his first wife passed away in the year 1910. At that time, Seethamma the widow of Ramanna was alive. Therefore, she (Venkamma) would not get any right in the property. Seethamma died only in theWhen Seethamma died in 1938, no doubt Jankamma was alive. It is here that we must consider the argument of learned counsel for the respondents that the daughter of a daughter was not recognized as a heir. When succession opened upon the death of the widow, in this case, namely Seethamma in the year 1938, if Jankamma could be treated as the reversioner being grand daughter of the last full owner, then the property would vest in Jankamma.24. There would be two obstacles for the appellants:- firstly, it would have to be held that Jankamma being the grand daughter of Ramanna was a reversioner upon the death of Seethamma, the widow of Ramanna. Secondly, even assuming for a moment that Jankamma was the reversioner whether it was incumbent upon her to institute proceedings for recovery of possession within 12 years of death ofother words, while it was open to the reversioners to ignore an alienation made by a Hindu widow and the period of limitation would not start to run upon a transfer effected by the Hindu widow, undoubtedly, the period of limitation for filing a suit for recovery of possession would commence upon the death of the widow.27. The property was alienated by Seethamma, the widow of Ramanna in favour of her brother Srinivas Rao in the year 1913. Undoubtedly, it was open to the reversioner to proceed on the basis that such alienation does not bind her.28. Thereafter, in 1938, Seethamma passed away. Even proceeding on the basis that Jankamma, the grand-daughter of Ramanna was a reversioner, her estate in expectancy became vested in her, upon the death of thewidow, Seethamma in 1938. While it is true that it was open to the reversioner to ignore the sale deed executed by the widow, as not binding on her, as far as suit for recovery of possession, the law clearly provided for a period of 12 years and the period of limitation started with the death of the limited owner, namely, the widow in 1938. The time started ticking with the passing away of the widow in 1938. The period of limitation being 12 years, it ran out in 1950. With the running out of the period of limitation prescribed under the Limitation Act, 1908 (by Articles 140 and 141), the very right of the alleged reversioner Jankamma also came to an end. Thus, when she executed the sale in the year 1955 in favour of the appellants, she could not have conveyed any right. That apart, even for a moment, proceeding on the basis that period of limitation would start from 12 years from 1955 when the sale deed was executed in favour of the appellants by Jankamma even that period ran out in 1967. Admittedly, the suits were filed several years even after 1967.clearly much before the Limitation Act, 1963 came into force, the period of limitation for instituting the suits had expired. This is apart from the effect of not filing such a suit on the very right itself.
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M/S National Building Construction Vs. State Of Maharashtra | consonance with the pleadings of the defendants in the written statement, specially in paragraph 5A of the written statement. The defendants? witness had clearly stated in his evidence that the rate of pitching as per the C.S.R. for the year 1981-82 was abnormal and was mentioned in square meters. According to the witness, the abnormality was pointed out to the Superintending Engineer and in view of the anomaly in the rate, there was a rectification of the mistake by the Government. It is stated that by the communication at Exh. 119, it was brought to the notice of the authorities that the C.S.R. rates for pitching for the year 1981-82 were wrongly quoted and the rate per cubic meter was Rs. 33.50 Ps. The plaintiff had been paid at the rate of Rs. 35.70 Ps. per cubic meter. The witness further deposed that the rate of Rs. 97.60 per cubic meter as claimed by the plaintiff had never reached at any point of time and the plaintiff was not entitled to claim at that rate only on the basis of the mistake in the C.S.R. for the year 1981-82. The finding on the first issue is recorded without considering the material evidence on record and without considering that there was a genuine mistake in the C.S.R. of the year 1981-82 so far as the item of pitching was concerned. It would also be necessary to refer to the document at Exh. 71A to deny the claim of the plaintiff towards pitching. It is necessary to reverse the finding of the trial Court on this issue and hold that the plaintiff would not be entitled to an amount of Rs.1,76,199/- towards pitching.? (emphasis supplied)10. In our opinion, the High Court was right, both on facts and in law, in rejecting the claim of the appellant in respect of pitching of stones, to the extent of Rs.1,76,199/-. We find that the finding of facts recorded by the High Court is in consonance with the pleading in the written statement and the oral and documentary evidences produced by the respondents (defendants) in that behalf. The appellant, however, relies on the observation made by the Trial Court that it was not open to the Superintending Engineer to modify the rates of CSR with retrospective effect. This argument does not commend us. The effect of typographical error in the CSR applicable for the financial year 1981-82, is not one of modification of the rates as such. Whereas, the effect of correcting the typographical error in the CSR rates is to restate the correct position as applicable for the relevant period and not one of modification of the rates, as contended. It is not disputed that in the previous financial year 1979-80, the rate prescribed in the CSR was Rs.27.60 per cubic metre. In the following financial year 1980-81, it was Rs.28.55 per cubic metre. It is, therefore, logical and rational to accept the stand taken by the respondents that the rates specified for pitching work in the year 1981-82, were erroneously mentioned in square metres which worked out @ Rs.80.33 per cubic metre. In the next financial year i.e. 1982-83, the rate prescribed for the same work was only Rs.46.65 per cubic metre. Thus, correcting the typographical error in the CSR rates was not an act of modification of those rates as such. That act cannot be construed as retrospective change introduced in the CSR by the respondents. The High Court has justly rejected this plea by giving an illustration that if the CSR rates were to be misprinted as Re.1 or Rs. 2 per cubic metre for the financial year 1981-82, the appellant would not have agreed to be bound by such rate. 11. Suffice it to observe that we find no error, much less any infirmity in the approach of the High Court in disallowing the claim of the appellant concerning pitching of stones to the extent of Rs.1,76,199/-. The view taken by the High Court, in our opinion, is just and proper, and a possible view. We find force in the argument of the respondents (defendants) that the Trial Court misled itself in misreading the pleading and discarding the legal evidence relied upon by the respondents (defendants) concerning Claim No.1. Further, the Trial Court has selectively referred to the deposition in the cross examination of DW1 and not analysed his evidence as a whole. Hence, no interference is warranted at the instance of the appellant in respect of Claim No.1. 12. Reverting to the Claim No.3 set up by the appellant regarding additional lead for water, we find that the Trial Court was swayed away by the fact that the appellant was required to transport water from some distance via Kaccha Road for which the appellant was entitled to such claim. The High Court in paragraph 21 of the impugned judgment, however, considered the said claim of the appellant with reference to the contract document. In that, Clause ?d? of tender Item No.8, pertaining to watering and mechanized compaction of earth work, clearly stated that the rates for earthwork raising are inclusive of watering and compaction at optimum moisture content. Further, in Clause ?d? of Item No.8, it has been made amply clear that no extra payment for these items would be given. The High Court held that the appellant having accepted the terms in the contract, which did not provide for any extra payment relating to lead for water, was not entitled to that claim. The High Court also took note of the document issued by the Executive Engineer dated 19th June, 1981 which also forms a part of record at Exh.-65A and noted that it reinforced the stand of the respondents that the appellant was not entitled to grant of the amount of Rs.80,000/- for additional lead for water. We find no infirmity in the view so taken by the High Court. The Claim of the appellant under this head is not supported by express terms of the contract document. | 0[ds]9. Having perused the pleading in the written statement and the evidence produced by the respondents (defendants), the High Court, after analysing the same, concluded that there was obvious typographical error in the CSR rates pertaining to financial yearwhich was later on corrected, and gave benefit of that position to the respondents and came to hold that the appellant was not entitled to the claim amount of Rs.The High Court analysed the pleading as well as the oral and documentary evidences produced by the defendant to come to the said conclusion.In our opinion, the High Court was right, both on facts and in law, in rejecting the claim of the appellant in respect of pitching of stones, to the extent of Rs.We find that the finding of facts recorded by the High Court is in consonance with the pleading in the written statement and the oral and documentary evidences produced by the respondents (defendants) in that behalf. The appellant, however, relies on the observation made by the Trial Court that it was not open to the Superintending Engineer to modify the rates of CSR with retrospective effect. This argument does not commend us. The effect of typographical error in the CSR applicable for the financial yearis not one of modification of the rates as such. Whereas, the effect of correcting the typographical error in the CSR rates is to restate the correct position as applicable for the relevant period and not one of modification of the rates, as contended. It is not disputed that in the previous financial yearthe rate prescribed in the CSR was Rs.27.60 per cubic metre. In the following financial yearit was Rs.28.55 per cubic metre. It is, therefore, logical and rational to accept the stand taken by the respondents that the rates specified for pitching work in the yearwere erroneously mentioned in square metres which worked out @ Rs.80.33 per cubic metre. In the next financial year i.e.the rate prescribed for the same work was only Rs.46.65 per cubic metre. Thus, correcting the typographical error in the CSR rates was not an act of modification of those rates as such. That act cannot be construed as retrospective change introduced in the CSR by the respondents. The High Court has justly rejected this plea by giving an illustration that if the CSR rates were to be misprinted as Re.1 or Rs. 2 per cubic metre for the financial yearthe appellant would not have agreed to be bound by such rate.Suffice it to observe that we find no error, much less any infirmity in the approach of the High Court in disallowing the claim of the appellant concerning pitching of stones to the extent of Rs.The view taken by the High Court, in our opinion, is just and proper, and a possible view. We find force in the argument of the respondents (defendants) that the Trial Court misled itself in misreading the pleading and discarding the legal evidence relied upon by the respondents (defendants) concerning Claim No.1. Further, the Trial Court has selectively referred to the deposition in the cross examination of DW1 and not analysed his evidence as a whole. Hence, no interference is warranted at the instance of the appellant in respect of Claim No.1.Reverting to the Claim No.3 set up by the appellant regarding additional lead for water, we find that the Trial Court was swayed away by the fact that the appellant was required to transport water from some distance via Kaccha Road for which the appellant was entitled to such claim. The High Court in paragraph 21 of the impugned judgment, however, considered the said claim of the appellant with reference to the contract document. In that, Clause ?d? of tender Item No.8, pertaining to watering and mechanized compaction of earth work, clearly stated that the rates for earthwork raising are inclusive of watering and compaction at optimum moisture content. Further, in Clause ?d? of Item No.8, it has been made amply clear that no extra payment for these items would be given. The High Court held that the appellant having accepted the terms in the contract, which did not provide for any extra payment relating to lead for water, was not entitled to that claim. The High Court also took note of the document issued by the Executive Engineer dated 19th June, 1981 which also forms a part of record atand noted that it reinforced the stand of the respondents that the appellant was not entitled to grant of the amount of Rs.80,000/for additional lead for water. We find no infirmity in the view so taken by the High Court. The Claim of the appellant under this head is not supported by express terms of the contract document. | 0 | 4,842 | 859 | ### Instruction:
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consonance with the pleadings of the defendants in the written statement, specially in paragraph 5A of the written statement. The defendants? witness had clearly stated in his evidence that the rate of pitching as per the C.S.R. for the year 1981-82 was abnormal and was mentioned in square meters. According to the witness, the abnormality was pointed out to the Superintending Engineer and in view of the anomaly in the rate, there was a rectification of the mistake by the Government. It is stated that by the communication at Exh. 119, it was brought to the notice of the authorities that the C.S.R. rates for pitching for the year 1981-82 were wrongly quoted and the rate per cubic meter was Rs. 33.50 Ps. The plaintiff had been paid at the rate of Rs. 35.70 Ps. per cubic meter. The witness further deposed that the rate of Rs. 97.60 per cubic meter as claimed by the plaintiff had never reached at any point of time and the plaintiff was not entitled to claim at that rate only on the basis of the mistake in the C.S.R. for the year 1981-82. The finding on the first issue is recorded without considering the material evidence on record and without considering that there was a genuine mistake in the C.S.R. of the year 1981-82 so far as the item of pitching was concerned. It would also be necessary to refer to the document at Exh. 71A to deny the claim of the plaintiff towards pitching. It is necessary to reverse the finding of the trial Court on this issue and hold that the plaintiff would not be entitled to an amount of Rs.1,76,199/- towards pitching.? (emphasis supplied)10. In our opinion, the High Court was right, both on facts and in law, in rejecting the claim of the appellant in respect of pitching of stones, to the extent of Rs.1,76,199/-. We find that the finding of facts recorded by the High Court is in consonance with the pleading in the written statement and the oral and documentary evidences produced by the respondents (defendants) in that behalf. The appellant, however, relies on the observation made by the Trial Court that it was not open to the Superintending Engineer to modify the rates of CSR with retrospective effect. This argument does not commend us. The effect of typographical error in the CSR applicable for the financial year 1981-82, is not one of modification of the rates as such. Whereas, the effect of correcting the typographical error in the CSR rates is to restate the correct position as applicable for the relevant period and not one of modification of the rates, as contended. It is not disputed that in the previous financial year 1979-80, the rate prescribed in the CSR was Rs.27.60 per cubic metre. In the following financial year 1980-81, it was Rs.28.55 per cubic metre. It is, therefore, logical and rational to accept the stand taken by the respondents that the rates specified for pitching work in the year 1981-82, were erroneously mentioned in square metres which worked out @ Rs.80.33 per cubic metre. In the next financial year i.e. 1982-83, the rate prescribed for the same work was only Rs.46.65 per cubic metre. Thus, correcting the typographical error in the CSR rates was not an act of modification of those rates as such. That act cannot be construed as retrospective change introduced in the CSR by the respondents. The High Court has justly rejected this plea by giving an illustration that if the CSR rates were to be misprinted as Re.1 or Rs. 2 per cubic metre for the financial year 1981-82, the appellant would not have agreed to be bound by such rate. 11. Suffice it to observe that we find no error, much less any infirmity in the approach of the High Court in disallowing the claim of the appellant concerning pitching of stones to the extent of Rs.1,76,199/-. The view taken by the High Court, in our opinion, is just and proper, and a possible view. We find force in the argument of the respondents (defendants) that the Trial Court misled itself in misreading the pleading and discarding the legal evidence relied upon by the respondents (defendants) concerning Claim No.1. Further, the Trial Court has selectively referred to the deposition in the cross examination of DW1 and not analysed his evidence as a whole. Hence, no interference is warranted at the instance of the appellant in respect of Claim No.1. 12. Reverting to the Claim No.3 set up by the appellant regarding additional lead for water, we find that the Trial Court was swayed away by the fact that the appellant was required to transport water from some distance via Kaccha Road for which the appellant was entitled to such claim. The High Court in paragraph 21 of the impugned judgment, however, considered the said claim of the appellant with reference to the contract document. In that, Clause ?d? of tender Item No.8, pertaining to watering and mechanized compaction of earth work, clearly stated that the rates for earthwork raising are inclusive of watering and compaction at optimum moisture content. Further, in Clause ?d? of Item No.8, it has been made amply clear that no extra payment for these items would be given. The High Court held that the appellant having accepted the terms in the contract, which did not provide for any extra payment relating to lead for water, was not entitled to that claim. The High Court also took note of the document issued by the Executive Engineer dated 19th June, 1981 which also forms a part of record at Exh.-65A and noted that it reinforced the stand of the respondents that the appellant was not entitled to grant of the amount of Rs.80,000/- for additional lead for water. We find no infirmity in the view so taken by the High Court. The Claim of the appellant under this head is not supported by express terms of the contract document.
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9. Having perused the pleading in the written statement and the evidence produced by the respondents (defendants), the High Court, after analysing the same, concluded that there was obvious typographical error in the CSR rates pertaining to financial yearwhich was later on corrected, and gave benefit of that position to the respondents and came to hold that the appellant was not entitled to the claim amount of Rs.The High Court analysed the pleading as well as the oral and documentary evidences produced by the defendant to come to the said conclusion.In our opinion, the High Court was right, both on facts and in law, in rejecting the claim of the appellant in respect of pitching of stones, to the extent of Rs.We find that the finding of facts recorded by the High Court is in consonance with the pleading in the written statement and the oral and documentary evidences produced by the respondents (defendants) in that behalf. The appellant, however, relies on the observation made by the Trial Court that it was not open to the Superintending Engineer to modify the rates of CSR with retrospective effect. This argument does not commend us. The effect of typographical error in the CSR applicable for the financial yearis not one of modification of the rates as such. Whereas, the effect of correcting the typographical error in the CSR rates is to restate the correct position as applicable for the relevant period and not one of modification of the rates, as contended. It is not disputed that in the previous financial yearthe rate prescribed in the CSR was Rs.27.60 per cubic metre. In the following financial yearit was Rs.28.55 per cubic metre. It is, therefore, logical and rational to accept the stand taken by the respondents that the rates specified for pitching work in the yearwere erroneously mentioned in square metres which worked out @ Rs.80.33 per cubic metre. In the next financial year i.e.the rate prescribed for the same work was only Rs.46.65 per cubic metre. Thus, correcting the typographical error in the CSR rates was not an act of modification of those rates as such. That act cannot be construed as retrospective change introduced in the CSR by the respondents. The High Court has justly rejected this plea by giving an illustration that if the CSR rates were to be misprinted as Re.1 or Rs. 2 per cubic metre for the financial yearthe appellant would not have agreed to be bound by such rate.Suffice it to observe that we find no error, much less any infirmity in the approach of the High Court in disallowing the claim of the appellant concerning pitching of stones to the extent of Rs.The view taken by the High Court, in our opinion, is just and proper, and a possible view. We find force in the argument of the respondents (defendants) that the Trial Court misled itself in misreading the pleading and discarding the legal evidence relied upon by the respondents (defendants) concerning Claim No.1. Further, the Trial Court has selectively referred to the deposition in the cross examination of DW1 and not analysed his evidence as a whole. Hence, no interference is warranted at the instance of the appellant in respect of Claim No.1.Reverting to the Claim No.3 set up by the appellant regarding additional lead for water, we find that the Trial Court was swayed away by the fact that the appellant was required to transport water from some distance via Kaccha Road for which the appellant was entitled to such claim. The High Court in paragraph 21 of the impugned judgment, however, considered the said claim of the appellant with reference to the contract document. In that, Clause ?d? of tender Item No.8, pertaining to watering and mechanized compaction of earth work, clearly stated that the rates for earthwork raising are inclusive of watering and compaction at optimum moisture content. Further, in Clause ?d? of Item No.8, it has been made amply clear that no extra payment for these items would be given. The High Court held that the appellant having accepted the terms in the contract, which did not provide for any extra payment relating to lead for water, was not entitled to that claim. The High Court also took note of the document issued by the Executive Engineer dated 19th June, 1981 which also forms a part of record atand noted that it reinforced the stand of the respondents that the appellant was not entitled to grant of the amount of Rs.80,000/for additional lead for water. We find no infirmity in the view so taken by the High Court. The Claim of the appellant under this head is not supported by express terms of the contract document.
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Takhatray Shivdatray Mankad Vs. State of Gujarat | of discrimination between Executive Engineers who had been absorbed from a Covenanting State and those who had been appointed or recruited directely by the State Government. In the opinion of the High Court even under the Saurashtra Rules retirement could be ordered before a person had attained the age of 55 years. It was, therefore, held that the conditions in Rule 161 (c) (2) (ii) of the Bombay Rules had not been shown to the less advantageous or disadvantageous to the appellant than the conditions in Rule 3 (i) of the Saurashtra Rules by which the appellant was governed until November 1, 1956. In this manner the proviso to Section 115 (7) of the State Reorganisation Act, 1956 did not stand in the way of the applicability of the Bombay Rules.6. We find it difficult to concur with the view of the High Court. Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka v. General Manager, N.E.F. Railways Maligaon, Pandu, 1964 (5) SCR 683 = (AIR 1964 SC 600 ), which is a judgment of a bench of seven judges of this Court.One of the matter which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked. According to the observations of Venkatarama Ayyar, J., in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 = (AIR 1957 SC 892 ) the application of such a rule would be tantamount to dismissal or removal under Article 311 (2) of the Constitution. There were certain other decisions of this Court which were relevant on this point, viz., P. Balokotaiah v. Union of India, 1958 SCR 1052 = (AIR 1958 SC 232 ) and Dalip Singh v. State of Punjab, 1961-1 SCR 88 = (AIR 1960 SC 1305 ). All these decisions were considered in Moti Ram Dekas case, 1964-5 SCR 683 = (AIR 1964 SC 600 ) and the true legal position was stated in the majority judgment at p. 726 (of SCR) = (at p. 617 of AIR) thus:"........We think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of Article 311 (2) ".In Gurdev Sing Sidhu v. State of Punjab, 1964-67 SCR 587 = (AIR 1964 SC 1585 ), it was pointed out that the only two exceptions to the protection afforded by Article 311 (2) were, -(1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed(2) that he was compulsorily retired under the Rules which prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which alone compulsory retirement could be valid.The basis on which this view has proceeded is that for efficient administration it is necessary that public servants should enjoy a sense of security of tenure and that the termination of service of a public servant under a rule which does not lay down a reasonably long period of qualified service is in substance removal under Article 311 (2). The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years.7. Now Rule 3 (i) of the Saurashtra Rules will have to be declared invalid if the expression "unless for special reasons otherwise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the age of 55 years. It is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid. If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy. So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to Section 115 (7) of the State Reorganisation Act 1956, the Bombay rule could not be made applicable to the appellant.8. Counsel for the State pressed us to look into certain documents for the purpose of finding out whether prior approval of the Central Government was obtained in the matter of varying the conditions of service of the appellant by applying the Bombay rules. But none of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request. | 1[ds]The High Court rightly looked at the provisions of Section 115 (7) of the States Reorganisation Act, 1956. It is provided thereby that nothing in the section shall be deemed to effect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. The proviso is important and lays down that the conditions of service applicable immediately before the appointed day to the case of any person referred in sub-section (1) or sub-section (2) (of Sec. 115) shall not be varied to his disadvantage except with the previous approval of the Central Government. The case of the appellant fell within the proviso and it had, therefore, to be determined whether the conditions of service applicable to the appellant, immediately before the appointed day which admittedly were contained in the Saurashtra Rules had been varied to his disadvantage, and if so, whether the approval of the Central Government had been obtained.We find it difficult to concur with the view of the High Court. Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka v. General Manager, N.E.F. Railways Maligaon, Pandu, 1964 (5) SCR 683 = (AIR 1964 SC 600 ), which is a judgment of a bench of seven judges of this Court.One of the matter which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked. According to the observations of Venkatarama Ayyar, J., in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 = (AIR 1957 SC 892 ) the application of such a rule would be tantamount to dismissal or removal under Article 311 (2) of theprinciple is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid. If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy. So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to Section 115 (7) of the State Reorganisation Act 1956, the Bombay rule could not be made applicable to thenone of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request. | 1 | 2,390 | 703 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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of discrimination between Executive Engineers who had been absorbed from a Covenanting State and those who had been appointed or recruited directely by the State Government. In the opinion of the High Court even under the Saurashtra Rules retirement could be ordered before a person had attained the age of 55 years. It was, therefore, held that the conditions in Rule 161 (c) (2) (ii) of the Bombay Rules had not been shown to the less advantageous or disadvantageous to the appellant than the conditions in Rule 3 (i) of the Saurashtra Rules by which the appellant was governed until November 1, 1956. In this manner the proviso to Section 115 (7) of the State Reorganisation Act, 1956 did not stand in the way of the applicability of the Bombay Rules.6. We find it difficult to concur with the view of the High Court. Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka v. General Manager, N.E.F. Railways Maligaon, Pandu, 1964 (5) SCR 683 = (AIR 1964 SC 600 ), which is a judgment of a bench of seven judges of this Court.One of the matter which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked. According to the observations of Venkatarama Ayyar, J., in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 = (AIR 1957 SC 892 ) the application of such a rule would be tantamount to dismissal or removal under Article 311 (2) of the Constitution. There were certain other decisions of this Court which were relevant on this point, viz., P. Balokotaiah v. Union of India, 1958 SCR 1052 = (AIR 1958 SC 232 ) and Dalip Singh v. State of Punjab, 1961-1 SCR 88 = (AIR 1960 SC 1305 ). All these decisions were considered in Moti Ram Dekas case, 1964-5 SCR 683 = (AIR 1964 SC 600 ) and the true legal position was stated in the majority judgment at p. 726 (of SCR) = (at p. 617 of AIR) thus:"........We think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of Article 311 (2) ".In Gurdev Sing Sidhu v. State of Punjab, 1964-67 SCR 587 = (AIR 1964 SC 1585 ), it was pointed out that the only two exceptions to the protection afforded by Article 311 (2) were, -(1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed(2) that he was compulsorily retired under the Rules which prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which alone compulsory retirement could be valid.The basis on which this view has proceeded is that for efficient administration it is necessary that public servants should enjoy a sense of security of tenure and that the termination of service of a public servant under a rule which does not lay down a reasonably long period of qualified service is in substance removal under Article 311 (2). The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years.7. Now Rule 3 (i) of the Saurashtra Rules will have to be declared invalid if the expression "unless for special reasons otherwise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the age of 55 years. It is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid. If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy. So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to Section 115 (7) of the State Reorganisation Act 1956, the Bombay rule could not be made applicable to the appellant.8. Counsel for the State pressed us to look into certain documents for the purpose of finding out whether prior approval of the Central Government was obtained in the matter of varying the conditions of service of the appellant by applying the Bombay rules. But none of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request.
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The High Court rightly looked at the provisions of Section 115 (7) of the States Reorganisation Act, 1956. It is provided thereby that nothing in the section shall be deemed to effect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. The proviso is important and lays down that the conditions of service applicable immediately before the appointed day to the case of any person referred in sub-section (1) or sub-section (2) (of Sec. 115) shall not be varied to his disadvantage except with the previous approval of the Central Government. The case of the appellant fell within the proviso and it had, therefore, to be determined whether the conditions of service applicable to the appellant, immediately before the appointed day which admittedly were contained in the Saurashtra Rules had been varied to his disadvantage, and if so, whether the approval of the Central Government had been obtained.We find it difficult to concur with the view of the High Court. Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka v. General Manager, N.E.F. Railways Maligaon, Pandu, 1964 (5) SCR 683 = (AIR 1964 SC 600 ), which is a judgment of a bench of seven judges of this Court.One of the matter which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked. According to the observations of Venkatarama Ayyar, J., in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 = (AIR 1957 SC 892 ) the application of such a rule would be tantamount to dismissal or removal under Article 311 (2) of theprinciple is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid. If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy. So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to Section 115 (7) of the State Reorganisation Act 1956, the Bombay rule could not be made applicable to thenone of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request.
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S.N. Namasivayam Chettiar Vs. Commissioner of Income Tax, Madras | taken and in the application under S. 66 (2) the matter does not seem to have been raised. The order of the High Court, dated February 26, 1953, does not show that any such question was raised before it; all it shows is that the appellants books of account were found to be defective and afforded no data for arriving at correct profits of the business. The order also refers to the non-production of invoices, the unexplained steep fall in profits made during the year when compared with the previous years. The High Court could not find any legal flaw in the order of the Appellate Tribunal to justify an order for directing the case to be stated. In the grounds of special leave to this Court no pointed reference was made to the material which is now alleged to have been used by the Tribunal without giving an opportunity to the appellant to explain that material. An amended petition by leave of this Court was filed on April 28, 1954, and there also no such pointed reference was made to the material to which objection is now being taken before us. Dhakeshwaris Case, 1955-1 SCR 941 : ( (S) AIR 1955 SC 65 ), cannot, in our opinion, apply to the facts of this case. 10. It was then urged that the four reasons given, which we have set out above, could not make S. 13 applicable. For the rejection of accounts several reasons were given by the Appellate Tribunal; one of these reasons was the non-production of stock registers and manufacturing accounts. This reason was given by the Income-tax Officer and adopted by the Appellate Tribunal. It was submitted that the non-production of stock account was not such a defect as to entitle the Taxing Authorities to reject the books and apply the proviso to S. 13. Reliance was placed on the judgment of the Punjab High Court is Pandit Brothers v. Commissioner of Income-tax, Delhi, 1954-26 ITR 159: ( (S) AIR 1955 Punj 42). The facts in that case were very different. The Income-tax Officer there added a certain sum to the assessees profits on the ground that the expense ratio was too high and the profits disclosed were too low and there was no stock register. The finding in that case was that the assessee maintained regular accounts of his purchases and sales and there was no finding by the Income-tax Officer that in his opinion the income could not properly be deduced therefrom. Khosla, J., (as he then was) there said: There is no finding that there was material before the Income-tax Officer to lead him to the conclusion that a proper statement of income, profits and gains could not be deduced from the material placed before him. All he said was that the profits appeared to be somewhat low and there was no stock register." The want of a stock register was, in that particular case, not a very serious defect because the account books had been found and accepted as correct and disclosed a true state of affairs. It cannot therefore be said that the case laid down as a proposition of law that the want of a stock register by which a proper check could be made was not such a serious defect as to make the proviso to S. 13 inapplicable. 11. The importance of such a register was pointed out by the Nagpur High Court in Ghanshyam Das Permanand v. Commissioner of Income-tax, C. P. and Berar, 1952-21 ITR 79 at p. 81: (AIR 1952 Nag 24 at p. 24).In cases such as the instant case, the keeping of a stock register is of great importance because that is a means of verifying the assessees accounts by having a quantitative tally. If, after taking into account all the materials including the want of a stock register, it is found that from the method of accounting correct profits of the business are not deducible, the operation of proviso to S. 13 of the Income-tax Act would be attracted: Bombay Cycle Stores Co. Ltd. v. Commissioner of Income-tax, 1958-33 ITR 13 (Bom). It may also be added, as was held by this Court in Commissioner of Income-tax v. MacMillan and Co., 1958-33 ITR 182 at p. 197: (AIR 1958 SC 207 at p. 215), that the Income-tax Officer, even if he accepts the assessees method of accounting, is not bound by the figure of profits shown in the accounts. It is for the Income-tax Authorities to consider the material which is placed before them and, if, after taking into account in any case the absence of a stock register coupled with other materials they are of the opinion that correct profits and gains cannot be deduced, then they would be justified in applying the proviso to S. 13.In our opinion therefore when the Tribunal applied the proviso to S. 13 because of the various blemishes which were pointed out by the Income-tax Officer and accepted by the Appellants Tribunal, it cannot be said that there was any error in the order of the Appellate Tribunal justifying the interference of this Court under Art. 136. 12. In regard to the Appeal No. 220 of 1955 for the assessment year 1946-1947 the objection raised was that the Tribunal had committed the same error in that it took into consideration the earlier decision of the Tribunal in an identical situation i.e., in the case of the same assessee in regard to previous years. As we have held that there was no error in the order of the Tribunal in regard to the previous years, it cannot be said that this observation of the Tribunal was in any manner erroneous. This appeal should therefore be dismissed. 13. The other appeals which arise under the Excess Profits Tax Act for the various chargeable accounting periods depend upon the result of the Income-tax assessment appeals and, as we have dismissed those appeals, these appeals also must be dismissed. | 0[ds]5. It was rightly argued that the power to compute profits under the proviso to S. 13 arises only where no method of accounting has been regularly employed by the assessee and where the method employed in such that the income, profits and gains cannot properly be deduced therefrom. It means that the method adopted by the assessee must prima facie prevail where it is regularly employed, though the Income-tax Officer can resort to the proviso if the method is such that true profits cannot be correctly determined therefrom.In other words, even if the assessee had regularly employed a method of accounting it can be discarded under the proviso if the method does not show correct profits of the yearAfter giving this finding the Tribunal accepted the turnover as shown in the appellants books. In making the computation of profits the Tribunal took into consideration the following matters: that the export of food grains from India was prohibited except under a license that there was an acute shortage of cattle fodder in Ceylon and the appellant had to resort to dubious means in order to obtain grains, that during a substantial portion of the year of accounting there was no price control in Colombo, that as the appellant was a manufacturer of forage by mixing several kinds of grains and powdering them and sold them in packets of various weights, the appellant must have made higher profits than persons who deal in grain only. Keeping all this in view the Tribunal was of the opinion that the rate of 15 per cent adopted in regard to imported grains was not too high but in the case of local purchases it was, and therefore reduced the rate of profit in the latter case to 12 1/2 per cent. It was on this material that the Tribunal adopted the figure of profit as estimate by the Income-tax Officer, and in order to support this opinion further, the Tribunal remarked that in certain cases which had come to its notice the rate of profits went up to 20 per cent8. As a matter of fact, the Income-tax Officer who also rejected the accounts of the appellant had also given similar reasons. He had held that there was absence of vouchers, that the stock account and the manufacturing account had not been kept or produced, that the cheques of other parties had been credited in the accounts of the appellant which had not been explained and that there was purchases of goods and property by the appellant without there being sufficient cash in hand. The Income-tax Officer also said that in other cases where grains were purchased in India and sold in Colombo the rates of profit were higher, ranging between 20 per cent and 39 per cent. He then worked out profits in respect of various grains in the case of the appellant and found that the average rate of gross profit worked out to 15.8 per cent, and in his opinion the gross profit in fodder should have been higher. He further took into consideration the fact that Colombo was bombed in April 1942, resulting in panic in that town and therefore during a portion of the accounting year the appellant might not have made the same margin of profit. He estimated the sales at twenty lacs and the gross profit at three lacs, thus arriving at a figure of 15 per cent on the turnover. It appears to us that neither the Income-tax Officer nor the Appellate Tribunal relied upon the profits made by traders in other cases as a basis for arriving at any conclusion as to the percentage at which the income should be computed and that they used that material for a different purpose. It is extremely doubtful if the order of the Income-tax Officer or the Tribunal would have been different if no reference had been made to the rate of profits in other cases. In other words, the profits in other cases were not the reason for holding that 15 per cent profit was a proper rate but merely an ancillary support to that conclusion12. In regard to the Appeal No. 220 of 1955 for the assessment year 1946-1947 the objection raised was that the Tribunal had committed the same error in that it took into consideration the earlier decision of the Tribunal in an identical situation i.e., in the case of the same assessee in regard to previous years. As we have held that there was no error in the order of the Tribunal in regard to the previous years, it cannot be said that this observation of the Tribunal was in any manner erroneous. This appeal should therefore be dismissed13. The other appeals which arise under the Excess Profits Tax Act for the various chargeable accounting periods depend upon the result of the Income-tax assessment appeals and, as we have dismissed those appeals, these appeals also must be dismissed. | 0 | 3,704 | 874 | ### 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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taken and in the application under S. 66 (2) the matter does not seem to have been raised. The order of the High Court, dated February 26, 1953, does not show that any such question was raised before it; all it shows is that the appellants books of account were found to be defective and afforded no data for arriving at correct profits of the business. The order also refers to the non-production of invoices, the unexplained steep fall in profits made during the year when compared with the previous years. The High Court could not find any legal flaw in the order of the Appellate Tribunal to justify an order for directing the case to be stated. In the grounds of special leave to this Court no pointed reference was made to the material which is now alleged to have been used by the Tribunal without giving an opportunity to the appellant to explain that material. An amended petition by leave of this Court was filed on April 28, 1954, and there also no such pointed reference was made to the material to which objection is now being taken before us. Dhakeshwaris Case, 1955-1 SCR 941 : ( (S) AIR 1955 SC 65 ), cannot, in our opinion, apply to the facts of this case. 10. It was then urged that the four reasons given, which we have set out above, could not make S. 13 applicable. For the rejection of accounts several reasons were given by the Appellate Tribunal; one of these reasons was the non-production of stock registers and manufacturing accounts. This reason was given by the Income-tax Officer and adopted by the Appellate Tribunal. It was submitted that the non-production of stock account was not such a defect as to entitle the Taxing Authorities to reject the books and apply the proviso to S. 13. Reliance was placed on the judgment of the Punjab High Court is Pandit Brothers v. Commissioner of Income-tax, Delhi, 1954-26 ITR 159: ( (S) AIR 1955 Punj 42). The facts in that case were very different. The Income-tax Officer there added a certain sum to the assessees profits on the ground that the expense ratio was too high and the profits disclosed were too low and there was no stock register. The finding in that case was that the assessee maintained regular accounts of his purchases and sales and there was no finding by the Income-tax Officer that in his opinion the income could not properly be deduced therefrom. Khosla, J., (as he then was) there said: There is no finding that there was material before the Income-tax Officer to lead him to the conclusion that a proper statement of income, profits and gains could not be deduced from the material placed before him. All he said was that the profits appeared to be somewhat low and there was no stock register." The want of a stock register was, in that particular case, not a very serious defect because the account books had been found and accepted as correct and disclosed a true state of affairs. It cannot therefore be said that the case laid down as a proposition of law that the want of a stock register by which a proper check could be made was not such a serious defect as to make the proviso to S. 13 inapplicable. 11. The importance of such a register was pointed out by the Nagpur High Court in Ghanshyam Das Permanand v. Commissioner of Income-tax, C. P. and Berar, 1952-21 ITR 79 at p. 81: (AIR 1952 Nag 24 at p. 24).In cases such as the instant case, the keeping of a stock register is of great importance because that is a means of verifying the assessees accounts by having a quantitative tally. If, after taking into account all the materials including the want of a stock register, it is found that from the method of accounting correct profits of the business are not deducible, the operation of proviso to S. 13 of the Income-tax Act would be attracted: Bombay Cycle Stores Co. Ltd. v. Commissioner of Income-tax, 1958-33 ITR 13 (Bom). It may also be added, as was held by this Court in Commissioner of Income-tax v. MacMillan and Co., 1958-33 ITR 182 at p. 197: (AIR 1958 SC 207 at p. 215), that the Income-tax Officer, even if he accepts the assessees method of accounting, is not bound by the figure of profits shown in the accounts. It is for the Income-tax Authorities to consider the material which is placed before them and, if, after taking into account in any case the absence of a stock register coupled with other materials they are of the opinion that correct profits and gains cannot be deduced, then they would be justified in applying the proviso to S. 13.In our opinion therefore when the Tribunal applied the proviso to S. 13 because of the various blemishes which were pointed out by the Income-tax Officer and accepted by the Appellants Tribunal, it cannot be said that there was any error in the order of the Appellate Tribunal justifying the interference of this Court under Art. 136. 12. In regard to the Appeal No. 220 of 1955 for the assessment year 1946-1947 the objection raised was that the Tribunal had committed the same error in that it took into consideration the earlier decision of the Tribunal in an identical situation i.e., in the case of the same assessee in regard to previous years. As we have held that there was no error in the order of the Tribunal in regard to the previous years, it cannot be said that this observation of the Tribunal was in any manner erroneous. This appeal should therefore be dismissed. 13. The other appeals which arise under the Excess Profits Tax Act for the various chargeable accounting periods depend upon the result of the Income-tax assessment appeals and, as we have dismissed those appeals, these appeals also must be dismissed.
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5. It was rightly argued that the power to compute profits under the proviso to S. 13 arises only where no method of accounting has been regularly employed by the assessee and where the method employed in such that the income, profits and gains cannot properly be deduced therefrom. It means that the method adopted by the assessee must prima facie prevail where it is regularly employed, though the Income-tax Officer can resort to the proviso if the method is such that true profits cannot be correctly determined therefrom.In other words, even if the assessee had regularly employed a method of accounting it can be discarded under the proviso if the method does not show correct profits of the yearAfter giving this finding the Tribunal accepted the turnover as shown in the appellants books. In making the computation of profits the Tribunal took into consideration the following matters: that the export of food grains from India was prohibited except under a license that there was an acute shortage of cattle fodder in Ceylon and the appellant had to resort to dubious means in order to obtain grains, that during a substantial portion of the year of accounting there was no price control in Colombo, that as the appellant was a manufacturer of forage by mixing several kinds of grains and powdering them and sold them in packets of various weights, the appellant must have made higher profits than persons who deal in grain only. Keeping all this in view the Tribunal was of the opinion that the rate of 15 per cent adopted in regard to imported grains was not too high but in the case of local purchases it was, and therefore reduced the rate of profit in the latter case to 12 1/2 per cent. It was on this material that the Tribunal adopted the figure of profit as estimate by the Income-tax Officer, and in order to support this opinion further, the Tribunal remarked that in certain cases which had come to its notice the rate of profits went up to 20 per cent8. As a matter of fact, the Income-tax Officer who also rejected the accounts of the appellant had also given similar reasons. He had held that there was absence of vouchers, that the stock account and the manufacturing account had not been kept or produced, that the cheques of other parties had been credited in the accounts of the appellant which had not been explained and that there was purchases of goods and property by the appellant without there being sufficient cash in hand. The Income-tax Officer also said that in other cases where grains were purchased in India and sold in Colombo the rates of profit were higher, ranging between 20 per cent and 39 per cent. He then worked out profits in respect of various grains in the case of the appellant and found that the average rate of gross profit worked out to 15.8 per cent, and in his opinion the gross profit in fodder should have been higher. He further took into consideration the fact that Colombo was bombed in April 1942, resulting in panic in that town and therefore during a portion of the accounting year the appellant might not have made the same margin of profit. He estimated the sales at twenty lacs and the gross profit at three lacs, thus arriving at a figure of 15 per cent on the turnover. It appears to us that neither the Income-tax Officer nor the Appellate Tribunal relied upon the profits made by traders in other cases as a basis for arriving at any conclusion as to the percentage at which the income should be computed and that they used that material for a different purpose. It is extremely doubtful if the order of the Income-tax Officer or the Tribunal would have been different if no reference had been made to the rate of profits in other cases. In other words, the profits in other cases were not the reason for holding that 15 per cent profit was a proper rate but merely an ancillary support to that conclusion12. In regard to the Appeal No. 220 of 1955 for the assessment year 1946-1947 the objection raised was that the Tribunal had committed the same error in that it took into consideration the earlier decision of the Tribunal in an identical situation i.e., in the case of the same assessee in regard to previous years. As we have held that there was no error in the order of the Tribunal in regard to the previous years, it cannot be said that this observation of the Tribunal was in any manner erroneous. This appeal should therefore be dismissed13. The other appeals which arise under the Excess Profits Tax Act for the various chargeable accounting periods depend upon the result of the Income-tax assessment appeals and, as we have dismissed those appeals, these appeals also must be dismissed.
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M/S Tirupati Jute Industries P.Ltd Vs. State Of West Bengal | contention based on a disputed question of fact for the first time in the writ proceedings and then decide the same against the management without giving it an opportunity to let in evidence thereon. 10. The appellant contended that the workmen ought not to have been permitted to raise a new contention alleging non-compliance with Standing Order 14(e) for the first time before the High Court, thereby denying them an opportunity to establish that there was no violation of the said Standing Order. The appellant also contended that in the first three cases, the order of dismissal was signed by the Director of the appellant company (and by the Manager himself in the fourth case) and the order clearly stated that the management/Manager had considered the findings and proceedings of the Enquiry Officer and had accepted the same. It was contended that a reading of the order clearly showed that the findings of the enquiry were accepted by the management, which meant the Board of Directors of the company, which was the employer. It was contended that Standing Order 14(e) was intended to apply only where the disciplinary authority was lower in rank to the Manager or the Board of Directors of the company. The appellant therefore contends that the decision of the High Court that there was no compliance with Standing Order 14(e) was unwarranted and erroneous. 11. Learned counsel for the workmen, on the other hand, contended that as the appellant failed to participate in the proceedings before the Tribunal, the contention of the workmen that due opportunity was not given to them in the domestic enquiry was rightly accepted. It was also contended that the High Court ought not to have interfered with such a finding. They supported the ultimate decision directing reinstatement with back-wages, not only on the ground of non-compliance with Standing Order 14(e) but also on the ground that the enquiry was not fair and proper. 12. The enquiry report makes it clear that sufficient opportunity was granted to the workmen to participate in the inquiry and inspite of it, they did not participate in the enquiry (except Bhupen Lal who participated in the enquiry). The learned Single Judge after considering the question of due opportunity, recorded a finding that such opportunity had been given to the workmen and therefore, set aside the Tribunals finding in that behalf. That was not challenged by the workmen, presumably because ultimately the appellants writ petition was dismissed on some other ground. The Division Bench also affirmed the said finding that due opportunity was given to the workmen. In fact the Division Bench specifically recorded that the workmen did not challenge that part of the order of the learned Single Judge holding that due opportunity was given. No ground has been made out to interfere with the concurrent findings of the learned Single Judge and the Division Bench that the workmen were given due opportunity. Therefore, the enquiry was fair and proper. 13. In regard to the finding that there was no approval by the manager/employer, it is not in dispute that such a contention was never raised before the Tribunal. What was urged before the Industrial Tribunal by the workmen was that they were not given due opportunity to defend themselves and therefore the inquiry was opposed to principles of natural justice. The workmen did not contend before the Industrial Tribunal that the order of dismissal was bad for want of approval of the manager or of the employer under Standing Order 14(e). The issue of violation of Standing Order 14(e) was raised before the High Court for the first time and as rightly contended by the learned counsel for the appellant, the appellant did not have an opportunity to demonstrate that such an approval was in fact available or that such approval was not required, having regard to the fact that a decision was taken by the Manager or the Board of Directors, which was the employer. Neither the learned Single Judge nor the Division Bench could have assumed that there was no approval without giving an opportunity to the appellant to establish that there was approval. Merely on the ground that the matter was pending for a considerable time, the Division Bench could not say that there was no need to remit the matter back to the Tribunal or chose to assume that there was non-compliance with the requirement of Standing Order 14(e). 14. We are of the view that if the High Court felt that the matter need not be remitted and that it should decide the issue on merits, it ought to have given due opportunity to the appellant employer to produce before it, relevant material to establish that it had complied with Standing Order 14(e). That was also not done. Therefore, the finding of the learned Single Judge affirmed by the Division Bench, holding that there was no approval as required by Standing Order 14(e), requires to be set aside, as the same is based on no evidence. 15. In the usual course, this would have necessitated referring back the matter to the Tribunal for examination of the issue relating to compliance with Standing Order 14(e). But certain subsequent events have necessitated exercise of our jurisdiction under Article 142 to do complete justice. The orders of termination in regard to the employees were passed in the years 1990 and 1991. All the four employees have reached the age of superannuation long ago. There is therefore no question of any of them being reinstated, even if the matter is referred to the Tribunal and they succeed before the Tribunal. The High Court has found that the charges are proved. Only the technical contention about approval remains. On the facts and circumstances, we are of the view that a quietus should be given to this litigation by directing the appellant to pay one-third of the back-wages (less any amounts already paid/deposited by the appellant) in full and final settlement, to the four workmen. 16. | 1[ds]The enquiry report makes it clear that sufficient opportunity was granted to the workmen to participate in the inquiry and inspite of it, they did not participate in the enquiry (except Bhupen Lal who participated in the enquiry). The learned Single Judge after considering the question of due opportunity, recorded a finding that such opportunity had been given to the workmen and therefore, set aside the Tribunals finding in that behalf. That was not challenged by the workmen, presumably because ultimately the appellants writ petition was dismissed on some other ground. The Division Bench also affirmed the said finding that due opportunity was given to the workmen. In fact the Division Bench specifically recorded that the workmen did not challenge that part of the order of the learned Single Judge holding that due opportunity was given. No ground has been made out to interfere with the concurrent findings of the learned Single Judge and the Division Bench that the workmen were given due opportunity. Therefore, the enquiry was fair and proper.We are of the view that if the High Court felt that the matter need not be remitted and that it should decide the issue on merits, it ought to have given due opportunity to the appellant employer to produce before it, relevant material to establish that it had complied with Standing Order 14(e). That was also not done. Therefore, the finding of the learned Single Judge affirmed by the Division Bench, holding that there was no approval as required by Standing Order 14(e), requires to be set aside, as the same is based on no evidence.In the usual course, this would have necessitated referring back the matter to the Tribunal for examination of the issue relating to compliance with Standing Order 14(e). But certain subsequent events have necessitated exercise of our jurisdiction under Article 142 to do complete justice. The orders of termination in regard to the employees were passed in the years 1990 and 1991. All the four employees have reached the age of superannuation long ago. There is therefore no question of any of them being reinstated, even if the matter is referred to the Tribunal and they succeed before the Tribunal. The High Court has found that the charges are proved. Only the technical contention about approval remains. On the facts and circumstances, we are of the view that a quietus should be given to this litigation by directing the appellant to payges (less any amounts already paid/deposited by the appellant) in full and final settlement, to the four workmen. | 1 | 2,456 | 472 | ### Instruction:
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contention based on a disputed question of fact for the first time in the writ proceedings and then decide the same against the management without giving it an opportunity to let in evidence thereon. 10. The appellant contended that the workmen ought not to have been permitted to raise a new contention alleging non-compliance with Standing Order 14(e) for the first time before the High Court, thereby denying them an opportunity to establish that there was no violation of the said Standing Order. The appellant also contended that in the first three cases, the order of dismissal was signed by the Director of the appellant company (and by the Manager himself in the fourth case) and the order clearly stated that the management/Manager had considered the findings and proceedings of the Enquiry Officer and had accepted the same. It was contended that a reading of the order clearly showed that the findings of the enquiry were accepted by the management, which meant the Board of Directors of the company, which was the employer. It was contended that Standing Order 14(e) was intended to apply only where the disciplinary authority was lower in rank to the Manager or the Board of Directors of the company. The appellant therefore contends that the decision of the High Court that there was no compliance with Standing Order 14(e) was unwarranted and erroneous. 11. Learned counsel for the workmen, on the other hand, contended that as the appellant failed to participate in the proceedings before the Tribunal, the contention of the workmen that due opportunity was not given to them in the domestic enquiry was rightly accepted. It was also contended that the High Court ought not to have interfered with such a finding. They supported the ultimate decision directing reinstatement with back-wages, not only on the ground of non-compliance with Standing Order 14(e) but also on the ground that the enquiry was not fair and proper. 12. The enquiry report makes it clear that sufficient opportunity was granted to the workmen to participate in the inquiry and inspite of it, they did not participate in the enquiry (except Bhupen Lal who participated in the enquiry). The learned Single Judge after considering the question of due opportunity, recorded a finding that such opportunity had been given to the workmen and therefore, set aside the Tribunals finding in that behalf. That was not challenged by the workmen, presumably because ultimately the appellants writ petition was dismissed on some other ground. The Division Bench also affirmed the said finding that due opportunity was given to the workmen. In fact the Division Bench specifically recorded that the workmen did not challenge that part of the order of the learned Single Judge holding that due opportunity was given. No ground has been made out to interfere with the concurrent findings of the learned Single Judge and the Division Bench that the workmen were given due opportunity. Therefore, the enquiry was fair and proper. 13. In regard to the finding that there was no approval by the manager/employer, it is not in dispute that such a contention was never raised before the Tribunal. What was urged before the Industrial Tribunal by the workmen was that they were not given due opportunity to defend themselves and therefore the inquiry was opposed to principles of natural justice. The workmen did not contend before the Industrial Tribunal that the order of dismissal was bad for want of approval of the manager or of the employer under Standing Order 14(e). The issue of violation of Standing Order 14(e) was raised before the High Court for the first time and as rightly contended by the learned counsel for the appellant, the appellant did not have an opportunity to demonstrate that such an approval was in fact available or that such approval was not required, having regard to the fact that a decision was taken by the Manager or the Board of Directors, which was the employer. Neither the learned Single Judge nor the Division Bench could have assumed that there was no approval without giving an opportunity to the appellant to establish that there was approval. Merely on the ground that the matter was pending for a considerable time, the Division Bench could not say that there was no need to remit the matter back to the Tribunal or chose to assume that there was non-compliance with the requirement of Standing Order 14(e). 14. We are of the view that if the High Court felt that the matter need not be remitted and that it should decide the issue on merits, it ought to have given due opportunity to the appellant employer to produce before it, relevant material to establish that it had complied with Standing Order 14(e). That was also not done. Therefore, the finding of the learned Single Judge affirmed by the Division Bench, holding that there was no approval as required by Standing Order 14(e), requires to be set aside, as the same is based on no evidence. 15. In the usual course, this would have necessitated referring back the matter to the Tribunal for examination of the issue relating to compliance with Standing Order 14(e). But certain subsequent events have necessitated exercise of our jurisdiction under Article 142 to do complete justice. The orders of termination in regard to the employees were passed in the years 1990 and 1991. All the four employees have reached the age of superannuation long ago. There is therefore no question of any of them being reinstated, even if the matter is referred to the Tribunal and they succeed before the Tribunal. The High Court has found that the charges are proved. Only the technical contention about approval remains. On the facts and circumstances, we are of the view that a quietus should be given to this litigation by directing the appellant to pay one-third of the back-wages (less any amounts already paid/deposited by the appellant) in full and final settlement, to the four workmen. 16.
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### Explanation:
The enquiry report makes it clear that sufficient opportunity was granted to the workmen to participate in the inquiry and inspite of it, they did not participate in the enquiry (except Bhupen Lal who participated in the enquiry). The learned Single Judge after considering the question of due opportunity, recorded a finding that such opportunity had been given to the workmen and therefore, set aside the Tribunals finding in that behalf. That was not challenged by the workmen, presumably because ultimately the appellants writ petition was dismissed on some other ground. The Division Bench also affirmed the said finding that due opportunity was given to the workmen. In fact the Division Bench specifically recorded that the workmen did not challenge that part of the order of the learned Single Judge holding that due opportunity was given. No ground has been made out to interfere with the concurrent findings of the learned Single Judge and the Division Bench that the workmen were given due opportunity. Therefore, the enquiry was fair and proper.We are of the view that if the High Court felt that the matter need not be remitted and that it should decide the issue on merits, it ought to have given due opportunity to the appellant employer to produce before it, relevant material to establish that it had complied with Standing Order 14(e). That was also not done. Therefore, the finding of the learned Single Judge affirmed by the Division Bench, holding that there was no approval as required by Standing Order 14(e), requires to be set aside, as the same is based on no evidence.In the usual course, this would have necessitated referring back the matter to the Tribunal for examination of the issue relating to compliance with Standing Order 14(e). But certain subsequent events have necessitated exercise of our jurisdiction under Article 142 to do complete justice. The orders of termination in regard to the employees were passed in the years 1990 and 1991. All the four employees have reached the age of superannuation long ago. There is therefore no question of any of them being reinstated, even if the matter is referred to the Tribunal and they succeed before the Tribunal. The High Court has found that the charges are proved. Only the technical contention about approval remains. On the facts and circumstances, we are of the view that a quietus should be given to this litigation by directing the appellant to payges (less any amounts already paid/deposited by the appellant) in full and final settlement, to the four workmen.
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Mobilox Innovations Private Ltd Vs. Kirusa Software Private Ltd | that the word "includes" substituted the word "means" which occurred in the first Insolvency and Bankruptcy Bill. Secondly, the present is not a case of a suit or arbitration proceeding filed before receipt of notice - Section 5(6) only deals with suits or arbitration proceedings which must "relate to" one of the three subclauses, either directly or indirectly. We have seen that a "dispute" is said to exist, so long as there is a real dispute as to payment between the parties that would fall within the inclusive definition contained in Section 5(6). The correspondence between the parties would show that on 30th January, 2015, the appellant clearly informed the respondent that they had displayed the appellants confidential client information and client campaign information on a public platform which constituted a breach of trust and a breach of the NDA between the parties. They were further told that all amounts that were due to them were withheld till the time the matter is resolved. On 10th February, 2015, the respondent referred to the NDA of 26th December, 2014 and denied that there was a breach of the NDA. The respondent went on to state that the appellants claim is unfounded and untenable, and that the appellant is trying to avoid its financial obligations, and that a sum of Rs.19,08,202.57 should be paid within one week, failing which the respondent would be forced to explore legal options and initiate legal process for recovery of the said amount. This email was refuted by the appellant by an e-mail dated 26th February, 2015 and the appellant went on to state that it had lost business from various clients as a result of the respondents breaches. Curiously, after this date, the respondent remained silent, and thereafter, by an e-mail dated 20th June, 2016, the respondent wished to revive business relations and stated that it would like to follow up for payments which are long stuck up. This was followed by an e-mail dated 25th June, 2016 to finalize the time and place for a meeting. On 28th June, 2016, the appellant wrote to the respondent again to finalize the time and place. Apparently, nothing came of the aforesaid e-mails and the appellant then fired the last shot on 19th September, 2016, reiterating that no payments are due as the NDA was breached. 44. The demand notice sent by the respondent was disputed in detail by the appellant in its reply dated 27th December, 2016, which set out the e-mail of 30th January, 2015. The appellant then went on to state: "Sometime during June and September 2016, an officer of your Client, one Mr. Jasmeet Singh wrote to our Client that he wanted to meet and revive business relationship and exploring common interest points to work together. In fact, in his email, he admits that there should be resolution to the impending payments thereby implying that there was (a) a dispute (as defined under the Code) and (b) there was a breach of the NDA which needed to be resolved. Mr. Singhs emails to our client were sent after 1 year and 6 months had elapsed from the date of our Clients email of 30 January 2015. This clearly shows that your Client was silent during this period and had not bothered to answer the questions raised by our Client. Hence, once again in September, our Client called upon your Client to explain its breach of the NDA. Your Client instead of explaining its breach of the NDA remained silent for about 3 months and thereafter chooses to issue the Notice as a form of pressure tactic and extort monies from our Client for your Clients breach of the NDA. All the conduct of your Client explicitly shows laches on its part.Your Clients should note that under the NDA, it has agreed that a breach of the NDA will cause irreparable damage to our Client and our Client is entitled to all remedies under law or equity against your Client for the enforcement of the NDA. Accordingly, given the severity of the breaches of the NDA committed by your Client, the delay and laches committed by your Client and the conduct of your Client, our Client is not liable to make payments to your Client against the breaches of the NDA and the delay and laches committed by your Client. In fact, at this stage, our Client is contemplating initiating necessary legal actions against your Client and its parent company for the breach of the NDA to seek further compensations and damages and other legal and equitable remedies against your Client and its parent company." 45. Going by the aforesaid test of "existence of a dispute", it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately succeed, and the Appellate Tribunal was wholly incorrect in characterizing the defense as vague, got-up and motivated to evade liability. 46. Learned counsel for the respondent, however, argued that the breach of the NDA is a claim for unliquidated damages which does not become crystallized until legal proceedings are filed, and none have been filed so far. The period of limitation for filing such proceedings has admittedly not yet elapsed. Further, the appellant has withheld amounts that were due to the respondent under the NDA till the matter is resolved. Admittedly, the matter has never been resolved. Also, the respondent itself has not commenced any legal proceedings after the e-mail dated 30th January, 2015 except for the present insolvency application, which was filed almost 2 years after the said e-mail. All these circumstances go to show that it is right to have the matter tried out in the present case before the axe falls. | 1[ds]29. It is, thus, clear that so far as an operational creditor is concerned, a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form. The corporate debtor is then given a period of 10 days from the receipt of the demand notice or copy of the invoice to bring to the notice of the operational creditor the existence of a dispute, if any. We have also seen the notes on clauses annexed to the Insolvency and Bankruptcy Bill of 2015, in which "the existence of a dispute" alone is mentioned. Even otherwise, the word "and" occurring in Section 8(2)(a) must be read as "or" keeping in mind the legislative intent and the fact that an anomalous situation would arise if it is not read as "or". If read as "and", disputes would only stave off the bankruptcy process if they are already pending in a suit or arbitration proceedings and not otherwise. This would lead to great hardship; in that a dispute may arise a few days before triggering of the insolvency process, in which case, though a dispute may exist, there is no time to approach either an arbitral tribunal or a court. Further, given the fact that long limitation periods are allowed, where disputes may arise and do not reach an arbitral tribunal or a court for upto three years, such persons would be outside the purview of Section 8(2) leading to bankruptcy proceedings commencing against them. Such an anomaly cannot possibly have been intended by the legislature nor has it so been intended. We have also seen that one of the objects of the Code qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the parties.It is important to notice that Section 255 read with the Eleventh Schedule of the Code has amended Section 271 of the Companies Act, 2013 so that a company being unable to pay its debts is no longer a ground for winding up a company. The old law contained in Madhusudan (supra) has, therefore, disappeared with the disappearance of this ground in Section 271 of the Companies Act.35. We have already noticed that in the first Insolvency and Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law Reforms Committee Report, Section 5(4) defined "dispute" as meaning a "bona fide suit or arbitration proceedings...". In its present avatar, Section 5(6) excludes the expression "bona fide" which is of significance. Therefore, it is difficult to import the expression "bona fide" into Section 8(2)(a) in order to judge whether a dispute exists or not.It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application.41. Coming to the facts of the present case, it is clear that the argument of Shri Mohta that the requisite certificate by IDBI was not given in time will have to be rejected, inasmuch as neither the appellant nor the Tribunal raised any objection to the application on this score. The confirmation from a financial institution that there is no payment of an unpaid operational debt by the corporate debtor is an important piece of information that needs to be placed before the adjudicating authority, under Section 9 of the Code, but given the fact that the adjudicating authority has not dismissed the application on this ground and that the appellant has raised this ground only at the appellate stage, we are of the view that the application cannot be dismissed at the threshold for want of this certificateare afraid that we cannot accede to such a contention. First and foremost, the definition is an inclusive one, and we have seen that the word "includes" substituted the word "means" which occurred in the first Insolvency and Bankruptcy Bill. Secondly, the present is not a case of a suit or arbitration proceeding filed before receipt of noticeSection 5(6) only deals with suits or arbitration proceedings which must "relate to" one of the three subclauses, either directly or indirectly.We have seen that a "dispute" is said to exist, so long as there is a real dispute as to payment between the parties that would fall within the inclusive definition contained in Section 5(6). The correspondence between the parties would show that on 30th January, 2015, the appellant clearly informed the respondent that they had displayed the appellants confidential client information and client campaign information on a public platform which constituted a breach of trust and a breach of the NDA between the parties. They were further told that all amounts that were due to them were withheld till the time the matter is resolved. On 10th February, 2015, the respondent referred to the NDA of 26th December, 2014 and denied that there was a breach of the NDA. The respondent went on to state that the appellants claim is unfounded and untenable, and that the appellant is trying to avoid its financial obligations, and that a sum of Rs.19,08,202.57 should be paid within one week, failing which the respondent would be forced to explore legal options and initiate legal process for recovery of the said amount. This email was refuted by the appellant by andated 26th February, 2015 and the appellant went on to state that it had lost business from various clients as a result of the respondents breaches. Curiously, after this date, the respondent remained silent, and thereafter, by andated 20th June, 2016, the respondent wished to revive business relations and stated that it would like to follow up for payments which are long stuck up. This was followed by andated 25th June, 2016 to finalize the time and place for a meeting. On 28th June, 2016, the appellant wrote to the respondent again to finalize the time and place. Apparently, nothing came of the aforesaidand the appellant then fired the last shot on 19th September, 2016, reiterating that no payments are due as the NDA was breached.Going by the aforesaid test of "existence of a dispute", it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately succeed, and the Appellate Tribunal was wholly incorrect in characterizing the defense as vague,and motivated to evadeperiod of limitation for filing such proceedings has admittedly not yet elapsed. Further, the appellant has withheld amounts that were due to the respondent under the NDA till the matter is resolved. Admittedly, the matter has never been resolved. Also, the respondent itself has not commenced any legal proceedings after thed 30th January, 2015 except for the present insolvency application, which was filed almost 2 years after the saidl these circumstances go to show that it is right to have the matter tried out in the present case before the axe | 1 | 21,746 | 1,606 | ### 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:
that the word "includes" substituted the word "means" which occurred in the first Insolvency and Bankruptcy Bill. Secondly, the present is not a case of a suit or arbitration proceeding filed before receipt of notice - Section 5(6) only deals with suits or arbitration proceedings which must "relate to" one of the three subclauses, either directly or indirectly. We have seen that a "dispute" is said to exist, so long as there is a real dispute as to payment between the parties that would fall within the inclusive definition contained in Section 5(6). The correspondence between the parties would show that on 30th January, 2015, the appellant clearly informed the respondent that they had displayed the appellants confidential client information and client campaign information on a public platform which constituted a breach of trust and a breach of the NDA between the parties. They were further told that all amounts that were due to them were withheld till the time the matter is resolved. On 10th February, 2015, the respondent referred to the NDA of 26th December, 2014 and denied that there was a breach of the NDA. The respondent went on to state that the appellants claim is unfounded and untenable, and that the appellant is trying to avoid its financial obligations, and that a sum of Rs.19,08,202.57 should be paid within one week, failing which the respondent would be forced to explore legal options and initiate legal process for recovery of the said amount. This email was refuted by the appellant by an e-mail dated 26th February, 2015 and the appellant went on to state that it had lost business from various clients as a result of the respondents breaches. Curiously, after this date, the respondent remained silent, and thereafter, by an e-mail dated 20th June, 2016, the respondent wished to revive business relations and stated that it would like to follow up for payments which are long stuck up. This was followed by an e-mail dated 25th June, 2016 to finalize the time and place for a meeting. On 28th June, 2016, the appellant wrote to the respondent again to finalize the time and place. Apparently, nothing came of the aforesaid e-mails and the appellant then fired the last shot on 19th September, 2016, reiterating that no payments are due as the NDA was breached. 44. The demand notice sent by the respondent was disputed in detail by the appellant in its reply dated 27th December, 2016, which set out the e-mail of 30th January, 2015. The appellant then went on to state: "Sometime during June and September 2016, an officer of your Client, one Mr. Jasmeet Singh wrote to our Client that he wanted to meet and revive business relationship and exploring common interest points to work together. In fact, in his email, he admits that there should be resolution to the impending payments thereby implying that there was (a) a dispute (as defined under the Code) and (b) there was a breach of the NDA which needed to be resolved. Mr. Singhs emails to our client were sent after 1 year and 6 months had elapsed from the date of our Clients email of 30 January 2015. This clearly shows that your Client was silent during this period and had not bothered to answer the questions raised by our Client. Hence, once again in September, our Client called upon your Client to explain its breach of the NDA. Your Client instead of explaining its breach of the NDA remained silent for about 3 months and thereafter chooses to issue the Notice as a form of pressure tactic and extort monies from our Client for your Clients breach of the NDA. All the conduct of your Client explicitly shows laches on its part.Your Clients should note that under the NDA, it has agreed that a breach of the NDA will cause irreparable damage to our Client and our Client is entitled to all remedies under law or equity against your Client for the enforcement of the NDA. Accordingly, given the severity of the breaches of the NDA committed by your Client, the delay and laches committed by your Client and the conduct of your Client, our Client is not liable to make payments to your Client against the breaches of the NDA and the delay and laches committed by your Client. In fact, at this stage, our Client is contemplating initiating necessary legal actions against your Client and its parent company for the breach of the NDA to seek further compensations and damages and other legal and equitable remedies against your Client and its parent company." 45. Going by the aforesaid test of "existence of a dispute", it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately succeed, and the Appellate Tribunal was wholly incorrect in characterizing the defense as vague, got-up and motivated to evade liability. 46. Learned counsel for the respondent, however, argued that the breach of the NDA is a claim for unliquidated damages which does not become crystallized until legal proceedings are filed, and none have been filed so far. The period of limitation for filing such proceedings has admittedly not yet elapsed. Further, the appellant has withheld amounts that were due to the respondent under the NDA till the matter is resolved. Admittedly, the matter has never been resolved. Also, the respondent itself has not commenced any legal proceedings after the e-mail dated 30th January, 2015 except for the present insolvency application, which was filed almost 2 years after the said e-mail. All these circumstances go to show that it is right to have the matter tried out in the present case before the axe falls.
### Response:
1
### Explanation:
noticed that in the first Insolvency and Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law Reforms Committee Report, Section 5(4) defined "dispute" as meaning a "bona fide suit or arbitration proceedings...". In its present avatar, Section 5(6) excludes the expression "bona fide" which is of significance. Therefore, it is difficult to import the expression "bona fide" into Section 8(2)(a) in order to judge whether a dispute exists or not.It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application.41. Coming to the facts of the present case, it is clear that the argument of Shri Mohta that the requisite certificate by IDBI was not given in time will have to be rejected, inasmuch as neither the appellant nor the Tribunal raised any objection to the application on this score. The confirmation from a financial institution that there is no payment of an unpaid operational debt by the corporate debtor is an important piece of information that needs to be placed before the adjudicating authority, under Section 9 of the Code, but given the fact that the adjudicating authority has not dismissed the application on this ground and that the appellant has raised this ground only at the appellate stage, we are of the view that the application cannot be dismissed at the threshold for want of this certificateare afraid that we cannot accede to such a contention. First and foremost, the definition is an inclusive one, and we have seen that the word "includes" substituted the word "means" which occurred in the first Insolvency and Bankruptcy Bill. Secondly, the present is not a case of a suit or arbitration proceeding filed before receipt of noticeSection 5(6) only deals with suits or arbitration proceedings which must "relate to" one of the three subclauses, either directly or indirectly.We have seen that a "dispute" is said to exist, so long as there is a real dispute as to payment between the parties that would fall within the inclusive definition contained in Section 5(6). The correspondence between the parties would show that on 30th January, 2015, the appellant clearly informed the respondent that they had displayed the appellants confidential client information and client campaign information on a public platform which constituted a breach of trust and a breach of the NDA between the parties. They were further told that all amounts that were due to them were withheld till the time the matter is resolved. On 10th February, 2015, the respondent referred to the NDA of 26th December, 2014 and denied that there was a breach of the NDA. The respondent went on to state that the appellants claim is unfounded and untenable, and that the appellant is trying to avoid its financial obligations, and that a sum of Rs.19,08,202.57 should be paid within one week, failing which the respondent would be forced to explore legal options and initiate legal process for recovery of the said amount. This email was refuted by the appellant by andated 26th February, 2015 and the appellant went on to state that it had lost business from various clients as a result of the respondents breaches. Curiously, after this date, the respondent remained silent, and thereafter, by andated 20th June, 2016, the respondent wished to revive business relations and stated that it would like to follow up for payments which are long stuck up. This was followed by andated 25th June, 2016 to finalize the time and place for a meeting. On 28th June, 2016, the appellant wrote to the respondent again to finalize the time and place. Apparently, nothing came of the aforesaidand the appellant then fired the last shot on 19th September, 2016, reiterating that no payments are due as the NDA was breached.Going by the aforesaid test of "existence of a dispute", it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately succeed, and the Appellate Tribunal was wholly incorrect in characterizing the defense as vague,and motivated to evadeperiod of limitation for filing such proceedings has admittedly not yet elapsed. Further, the appellant has withheld amounts that were due to the respondent under the NDA till the matter is resolved. Admittedly, the matter has never been resolved. Also, the respondent itself has not commenced any legal proceedings after thed 30th January, 2015 except for the present insolvency application, which was filed almost 2 years after the saidl these circumstances go to show that it is right to have the matter tried out in the present case before the axe
|
Haryana State Coop Supply Mkt Fed.Ltd Vs. Sanjay | continued upto December 31, 1998. The contract with District Manager, HAFED, Hissar, January 15, 1999 was a separate contract. Both authorities are distinct. It is true that the office of District Manager, Jind and the office of District Manager, Hissar are the establishments or offices of the HAFED but the authority that engaged the workman as Chowkidar on casual basis at Jind is different from the authority that engaged him at Hissar. It is not unusual for an Institution, Corporation or Authority to have different offices, branches and establishments. When a casual employee is employed in different establishments of a Corporation, Institution or Authority, the concept of continuous service under one employer cannot be applied. In the case of Union of India v. Jummasha Diwan (2006) 8 SCC 544 ), this Court observed, "there are several establishments of Railway Administration. If a workman voluntarily gives up his job in one of the establishments and joins another, the same would not amount to his being in continuous service. When a casual employee is employed in different establishments, may be under the same employer, e.g. Railway Administration of India as a whole, having different administrative set ups, different requirements and different projects, the concept of continuous service cannot be applied............" 9. The Constitution Bench of this Court in the case of Management of Indian Cable Co. Ltd, v. Workmen (1962 Supp (3) SCR 589) dealt with the expression "industrial establishment" albeit with reference to Section 25-G of the ID Act and held: "Thus whether we have regard to the popular sense of the words "industrial establishment", or to the limitation of relief under Section 25-G to workmen in the same category, the conclusion would appear to be inescapable that each branch of a company should normally be regarded as a distinct industrial establishment." 10. In the case of DGM Oil & Natural Gas Corporation Ltd. & Anr. v. Ilias Abdul Rehman (2005) 2 SCC 183 , this Court was concerned with the question whether work put in by the workman in different units, namely, Baroda and Mehsana projects of Oil and Natural Gas Corporation could be counted for determining whether the workman worked for 240 days continuously for the purpose of Section 25-F of the ID Act. The Court answered the question in the negative and held that the Baroda and Mehsana projects of the Corporation could not be considered as a single unit or department under the Corporation and, therefore, the days put in by the workman in different units could not be counted for determining whether the workman worked for 240 days continuously for the purpose of Section 25-F of the ID Act, This is what this Court said: "We are aware that the judgment of this Court in Indian Cable Co. Ltd. was rendered in the context of Section 25-G of the Act, still we are of the opinion that the law for the purpose of counting the days of work in different departments controlled by an apex corporation will be governed by the principles laid down in the judgment of Indian Cable Co. Ltd. And the Industrial Tribunal was justified in dismissing the reference." 11. In Haryana Urban Development Authority v. Om Pal (2007) 5 SCC 742 ), the question raised before this Court was whether the two Sub-Divisions of Haryana Urban Development Authority could be treated to be one establishment for the purpose of reckoning continuity of service within the meaning of Section 25-B of the Act. This Court held: "5. The Industrial Tribunal-cum-Labour Court unfortunately did not go into the said question at all. If both the establishments are treated to be one establishment for the purpose of reckoning continuity of service within the meaning of Section 25-B of the Act, as was held by the Tribunal, a person working at different points of time in different establishments of the statutory authority, would be entitled to claim reinstatement on the basis thereof. However, in that event, one establishment even may not know that the workman had worked in another establishment. In absence of such a knowledge, the authority retrenching the workman concerned would not be able to comply with the statutory provisions contained in Section 25-F of the Act. Thus, once two establishments are held to be separate and distinct having different cadre strength of the workmen, if any, we are of the opinion that the period during which the workman was working in one establishment would not enure to his benefit when he was recruited separately in another establishment, particularly when he was not transferred from one sub-division to the other. In this case he was appointed merely on daily wages." 12. Learned counsel for the respondent, however, strenuously urged that the Managing Director, HAFAED has control over the office of District Manager, Jind as well as District Manager, Hissar and, therefore, workman can be said to have worked under the same employer. We are unable to accept the contention of the learned counsel. Merely because the District Manager, Jind and the District Manager, Hissar are the subordinate officers under the control of Managing Director, HAFED, the two offices at Jind and Hissar do not cease to be separate establishment for the purposes of Section 25-F of the ID Act. As held by this Court in Jummasha Diwan, with which we respectfully agree, that when a casual employee is employed in different establishments, may be under the same employer, the concept of continuous service cannot be applied. There is also no merit in the submission of the learned counsel for the respondent that the workman was transferred from the office of the District Manager, Jind to the Office of District Manager, Hissar. No transfer order was placed by the workman before the Labour Court. As a matter of fact, by a separate and fresh contract, the workman was engaged by the District Manager, Hissar from January 15, 1999. The employment of the workman at Hissar was not an employment in continuity but a fresh employment. | 1[ds]8. For the purposes of applicability of Sectionthe workman has to show that he has been in continuous service for not less than one year under an employer. A workman is deemed to be in continuous service for a period of one year if during the period of 12 calendar months preceding the date of termination, he has actually worked under the employer for not less than 240 days by virtue of Section 25B(2)of the ID Act.The words "has been in continuous service.......... under an employer" in Sectionare crucial. Can office of the District Manager, HAFED, Jind and office of the District Manager, HAFED, Hissar, for the purposes of Sectionbe said to be one establishment and, thus, covered by an expression "under an employer"? We do not think so. In our view, the office of the District Manager, HAFED, Jind and the office of the District Manager, HAFED, Hissar are two distinct and separate establishments and cannot be treated as one establishment for the purpose of reckoning continuity of service within the meaning of Sectionread with Sectionof the ID Act.It is so because the workman was engaged on contract basis by two separate authorities under different contracts. The contract of employment with District Manager, HAFED, Jind commenced on August 1, 1998 initially for 29 days and continued upto December 31, 1998. The contract with District Manager, HAFED, Hissar, January 15, 1999 was a separate contract. Both authorities are distinct. It is true that the office of District Manager, Jind and the office of District Manager, Hissar are the establishments or offices of the HAFED but the authority that engaged the workman as Chowkidar on casual basis at Jind is different from the authority that engaged him at Hissar. It is not unusual for an Institution, Corporation or Authority to have different offices, branches and establishments. When a casual employee is employed in different establishments of a Corporation, Institution or Authority, the concept of continuous service under one employer cannot be applied. In the case of Union of India v. Jummasha Diwan (2006) 8 SCC 544 ), this Court observed,"there are several establishments of Railway Administration. If a workman voluntarily gives up his job in one of the establishments and joins another, the same would not amount to his being in continuous service. When a casual employee is employed in different establishments, may be under the same employer, e.g. Railway Administration of India as a whole, having different administrative set ups, different requirements and different projects, the concept of continuous service cannot be applied............Learned counsel for the respondent, however, strenuously urged that the Managing Director, HAFAED has control over the office of District Manager, Jind as well as District Manager, Hissar and, therefore, workman can be said to have worked under the same employer. We are unable to accept the contention of the learned counsel. Merely because the District Manager, Jind and the District Manager, Hissar are the subordinate officers under the control of Managing Director, HAFED, the two offices at Jind and Hissar do not cease to be separate establishment for the purposes of Sectionof the ID Act.As held by this Court in Jummasha Diwan, with which we respectfully agree, that when a casual employee is employed in different establishments, may be under the same employer, the concept of continuous service cannot be applied. There is also no merit in the submission of the learned counsel for the respondent that the workman was transferred from the office of the District Manager, Jind to the Office of District Manager, Hissar. No transfer order was placed by the workman before the Labour Court. As a matter of fact, by a separate and fresh contract, the workman was engaged by the District Manager, Hissar from January 15, 1999. The employment of the workman at Hissar was not an employment in continuity but a fresh | 1 | 2,004 | 741 | ### 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:
continued upto December 31, 1998. The contract with District Manager, HAFED, Hissar, January 15, 1999 was a separate contract. Both authorities are distinct. It is true that the office of District Manager, Jind and the office of District Manager, Hissar are the establishments or offices of the HAFED but the authority that engaged the workman as Chowkidar on casual basis at Jind is different from the authority that engaged him at Hissar. It is not unusual for an Institution, Corporation or Authority to have different offices, branches and establishments. When a casual employee is employed in different establishments of a Corporation, Institution or Authority, the concept of continuous service under one employer cannot be applied. In the case of Union of India v. Jummasha Diwan (2006) 8 SCC 544 ), this Court observed, "there are several establishments of Railway Administration. If a workman voluntarily gives up his job in one of the establishments and joins another, the same would not amount to his being in continuous service. When a casual employee is employed in different establishments, may be under the same employer, e.g. Railway Administration of India as a whole, having different administrative set ups, different requirements and different projects, the concept of continuous service cannot be applied............" 9. The Constitution Bench of this Court in the case of Management of Indian Cable Co. Ltd, v. Workmen (1962 Supp (3) SCR 589) dealt with the expression "industrial establishment" albeit with reference to Section 25-G of the ID Act and held: "Thus whether we have regard to the popular sense of the words "industrial establishment", or to the limitation of relief under Section 25-G to workmen in the same category, the conclusion would appear to be inescapable that each branch of a company should normally be regarded as a distinct industrial establishment." 10. In the case of DGM Oil & Natural Gas Corporation Ltd. & Anr. v. Ilias Abdul Rehman (2005) 2 SCC 183 , this Court was concerned with the question whether work put in by the workman in different units, namely, Baroda and Mehsana projects of Oil and Natural Gas Corporation could be counted for determining whether the workman worked for 240 days continuously for the purpose of Section 25-F of the ID Act. The Court answered the question in the negative and held that the Baroda and Mehsana projects of the Corporation could not be considered as a single unit or department under the Corporation and, therefore, the days put in by the workman in different units could not be counted for determining whether the workman worked for 240 days continuously for the purpose of Section 25-F of the ID Act, This is what this Court said: "We are aware that the judgment of this Court in Indian Cable Co. Ltd. was rendered in the context of Section 25-G of the Act, still we are of the opinion that the law for the purpose of counting the days of work in different departments controlled by an apex corporation will be governed by the principles laid down in the judgment of Indian Cable Co. Ltd. And the Industrial Tribunal was justified in dismissing the reference." 11. In Haryana Urban Development Authority v. Om Pal (2007) 5 SCC 742 ), the question raised before this Court was whether the two Sub-Divisions of Haryana Urban Development Authority could be treated to be one establishment for the purpose of reckoning continuity of service within the meaning of Section 25-B of the Act. This Court held: "5. The Industrial Tribunal-cum-Labour Court unfortunately did not go into the said question at all. If both the establishments are treated to be one establishment for the purpose of reckoning continuity of service within the meaning of Section 25-B of the Act, as was held by the Tribunal, a person working at different points of time in different establishments of the statutory authority, would be entitled to claim reinstatement on the basis thereof. However, in that event, one establishment even may not know that the workman had worked in another establishment. In absence of such a knowledge, the authority retrenching the workman concerned would not be able to comply with the statutory provisions contained in Section 25-F of the Act. Thus, once two establishments are held to be separate and distinct having different cadre strength of the workmen, if any, we are of the opinion that the period during which the workman was working in one establishment would not enure to his benefit when he was recruited separately in another establishment, particularly when he was not transferred from one sub-division to the other. In this case he was appointed merely on daily wages." 12. Learned counsel for the respondent, however, strenuously urged that the Managing Director, HAFAED has control over the office of District Manager, Jind as well as District Manager, Hissar and, therefore, workman can be said to have worked under the same employer. We are unable to accept the contention of the learned counsel. Merely because the District Manager, Jind and the District Manager, Hissar are the subordinate officers under the control of Managing Director, HAFED, the two offices at Jind and Hissar do not cease to be separate establishment for the purposes of Section 25-F of the ID Act. As held by this Court in Jummasha Diwan, with which we respectfully agree, that when a casual employee is employed in different establishments, may be under the same employer, the concept of continuous service cannot be applied. There is also no merit in the submission of the learned counsel for the respondent that the workman was transferred from the office of the District Manager, Jind to the Office of District Manager, Hissar. No transfer order was placed by the workman before the Labour Court. As a matter of fact, by a separate and fresh contract, the workman was engaged by the District Manager, Hissar from January 15, 1999. The employment of the workman at Hissar was not an employment in continuity but a fresh employment.
### Response:
1
### Explanation:
8. For the purposes of applicability of Sectionthe workman has to show that he has been in continuous service for not less than one year under an employer. A workman is deemed to be in continuous service for a period of one year if during the period of 12 calendar months preceding the date of termination, he has actually worked under the employer for not less than 240 days by virtue of Section 25B(2)of the ID Act.The words "has been in continuous service.......... under an employer" in Sectionare crucial. Can office of the District Manager, HAFED, Jind and office of the District Manager, HAFED, Hissar, for the purposes of Sectionbe said to be one establishment and, thus, covered by an expression "under an employer"? We do not think so. In our view, the office of the District Manager, HAFED, Jind and the office of the District Manager, HAFED, Hissar are two distinct and separate establishments and cannot be treated as one establishment for the purpose of reckoning continuity of service within the meaning of Sectionread with Sectionof the ID Act.It is so because the workman was engaged on contract basis by two separate authorities under different contracts. The contract of employment with District Manager, HAFED, Jind commenced on August 1, 1998 initially for 29 days and continued upto December 31, 1998. The contract with District Manager, HAFED, Hissar, January 15, 1999 was a separate contract. Both authorities are distinct. It is true that the office of District Manager, Jind and the office of District Manager, Hissar are the establishments or offices of the HAFED but the authority that engaged the workman as Chowkidar on casual basis at Jind is different from the authority that engaged him at Hissar. It is not unusual for an Institution, Corporation or Authority to have different offices, branches and establishments. When a casual employee is employed in different establishments of a Corporation, Institution or Authority, the concept of continuous service under one employer cannot be applied. In the case of Union of India v. Jummasha Diwan (2006) 8 SCC 544 ), this Court observed,"there are several establishments of Railway Administration. If a workman voluntarily gives up his job in one of the establishments and joins another, the same would not amount to his being in continuous service. When a casual employee is employed in different establishments, may be under the same employer, e.g. Railway Administration of India as a whole, having different administrative set ups, different requirements and different projects, the concept of continuous service cannot be applied............Learned counsel for the respondent, however, strenuously urged that the Managing Director, HAFAED has control over the office of District Manager, Jind as well as District Manager, Hissar and, therefore, workman can be said to have worked under the same employer. We are unable to accept the contention of the learned counsel. Merely because the District Manager, Jind and the District Manager, Hissar are the subordinate officers under the control of Managing Director, HAFED, the two offices at Jind and Hissar do not cease to be separate establishment for the purposes of Sectionof the ID Act.As held by this Court in Jummasha Diwan, with which we respectfully agree, that when a casual employee is employed in different establishments, may be under the same employer, the concept of continuous service cannot be applied. There is also no merit in the submission of the learned counsel for the respondent that the workman was transferred from the office of the District Manager, Jind to the Office of District Manager, Hissar. No transfer order was placed by the workman before the Labour Court. As a matter of fact, by a separate and fresh contract, the workman was engaged by the District Manager, Hissar from January 15, 1999. The employment of the workman at Hissar was not an employment in continuity but a fresh
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Arjun Lal Gupta & Others Vs. Mriganka Mohan Sur & Others | Beg, J.1. This is defendants appeal after certification under Article 133(1)(a) of the Constitution.2. The plaintiff-respondents had brought a suit for recovery of possession after declaration of his title to a plot of land 50 bighas in area, including one bigha area occupied by the defendant appellants who claimed sub-tenancy rights and also set up the pleas of waiver and estoppel to prevent their eviction. The trial Court had decreed the suit after repelling the plea of limitation, set up inconsistently with a plea of tenancy right by Bajrang Bali Engineering Company, Defendant No. 1 which even alleged to be agents of the plaintiff for letting out lands to others. It also rejected the pleas of waiver and estoppel. It appears that defendant No. 1 taking advantage of the fact that the plaintiff lived at considerable distance from the land in dispute, had started dumping scrap iron on the land. The plaintiff, immediately after becoming aware of this fact, gave notice in writing to Defendant No. 1 on March 24, 1950 to remove these materials. On the failure of Defendant No. 1 comply, suit for the damages for the illegal occupation from March 24, 1950 to May 21, 1951 and then September 1, 1952 to May 8, 1953. The plaintiff had reserved his rights to sue for eviction later. Compromise decrees had been passed in those suits. Defendant No. 1 had agreed to pay for use and occupation. But, the terms of the compromise decrees had not been carried out by Defendant No. 1. In the case before us, Bajrang Bali Engineering Company Defendant No. 1, did not appeal against the decree for possession by removal of the structures put up by the defendants and for mesne profits at the rate of Rs. 175 per day with effect from February 25, 1955 and the award of Rs. 2, 000 for the court fee paid by the plaintiff.3. The High Court had also repelled the pleas of the defendants, who mainly relied on waiver and estoppel, but it modified the decree for mesne profits by awarding only Rs. 3.50 n.p. per day so as to bring the amount awarded to approximately Rs. 100 per month. Against this decree, defendants Nos. 2 to 5 have come up in appeal to this Court and confined their arguments to the pleas of waiver and estoppel and the bar of Order 2, Rule 2, C.P.C.4. After having been taken through the pleadings and the relevant facts and findings in the case, we find ourselves in complete agreement with the views of the trial Court and the High Court, that neither estoppel nor waiver nor Order 2, Rule 2. C.P.C. could bar the plaintiffs suit. Defendant No. 1, who had neither appealed in the High Court nor is among the appellants before us, had failed to establish its claim that it had authority from the plaintiff to either use the land for dumping scrap iron or to let it out to any party as the plaintiffs agent. The defendants-appellants before us relied mainly on the alleged failure to object to the structures made by them for the purpose of manufacturing buckets and automobile parts. But these were not shown to be permanent structures. They were only tin sheds and fittings, which could be and have been ordered to be removed by the contesting defendants-appellants. The mere fact that defendants-appellants were trespassers and that the plaintiff had brought their suit for eviction in 1955, objecting to trespass, could not confer any right upon the defendants appellants, who were said to have been bought on the land by one Shri Agarwala in 1951. Nothing could be shown to us to enable us to hold the findings of the trial court and the High Court on questions of fact were erroneous. It had been rightly held that there was no evidence to show that the plaintiff had in any way encouraged the defendants to incur any expenses or had made any representations to induce them to change their position to their disadvantage. The plaintiff had asserted his rights within a reasonable time after learning of the trespass. He did not stand by watching valuable constructions being put up on his land, but had sent a notice objecting to the trespass as soon as he learnt of it. The defendants had not shown that they had acquired any right in the land from an owner. They had, very half-heartedly, set up a plea of limitation which was not seriously pressed. The whole stand of the defendants-appellants was lacking in bona fides.5. The High Court had observed that principles on which pleas of estoppel and acquiescence can succeed have been laid down in : G. H. C Ariff v. Jadunath Majumdar (58 IA 91, 99 : AIR 1931 IC 762); A. H. Forbes v. Sir L. E. Ralli (52 IA 178 : AIR 1925 PC 146 ) Ahmed Yar Khan v. Secretary of State for India in Council (28 IA 211 : ILR 528 Cal 693 (PC) : 5 CWN 634); Lala Beni Ram v. Kundan Lall (26 IA 58, 63-64 : ILR 21 All 496 : 3 CWN 502) Subodh Chand Mitter v. Bhagwandas Saha (50 CWN 851, 856 and 863 : AIR 1947 Cal 353 : 50 CWN 351); Sir J. W. Ramsden v. Lee Dyson and Joseph Thornton ((1866) House of Lords 129, 1401) Willmott v. Barber ((1880) 15 Ch D 96). The appellants could not bring their case on facts found within the principles laid down in these cases.6. There is no question of applying Order 2, Rule 2, C.P.C when the cause of action for the suit before us is different from the causes of action in the suits which were compromised. The failure of the defendants to carry out the terms of the compromise decrees constitutes a part of the cause of action in the suit before us. | 0[ds]4. After having been taken through the pleadings and the relevant facts and findings in the case, we find ourselves in complete agreement with the views of the trial Court and the High Court, that neither estoppel nor waiver nor Order 2, Rule 2. C.P.C. could bar the plaintiffs suit. Defendant No. 1, who had neither appealed in the High Court nor is among the appellants before us, had failed to establish its claim that it had authority from the plaintiff to either use the land for dumping scrap iron or to let it out to any party as the plaintiffs agent. Thebefore us relied mainly on the alleged failure to object to the structures made by them for the purpose of manufacturing buckets and automobile parts. But these were not shown to be permanent structures. They were only tin sheds and fittings, which could be and have been ordered to be removed by the contestingThe mere fact thatwere trespassers and that the plaintiff had brought their suit for eviction in 1955, objecting to trespass, could not confer any right upon the defendants appellants, who were said to have been bought on the land by one Shri Agarwala in 1951. Nothing could be shown to us to enable us to hold the findings of the trial court and the High Court on questions of fact were erroneous. It had been rightly held that there was no evidence to show that the plaintiff had in any way encouraged the defendants to incur any expenses or had made any representations to induce them to change their position to their disadvantage. The plaintiff had asserted his rights within a reasonable time after learning of the trespass. He did not stand by watching valuable constructions being put up on his land, but had sent a notice objecting to the trespass as soon as he learnt of it. The defendants had not shown that they had acquired any right in the land from an owner. They had, veryset up a plea of limitation which was not seriously pressed. The whole stand of thewas lacking in bona fides.There is no question of applying Order 2, Rule 2, C.P.C when the cause of action for the suit before us is different from the causes of action in the suits which were compromised. The failure of the defendants to carry out the terms of the compromise decrees constitutes a part of the cause of action in the suit before us. | 0 | 1,100 | 446 | ### 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:
Beg, J.1. This is defendants appeal after certification under Article 133(1)(a) of the Constitution.2. The plaintiff-respondents had brought a suit for recovery of possession after declaration of his title to a plot of land 50 bighas in area, including one bigha area occupied by the defendant appellants who claimed sub-tenancy rights and also set up the pleas of waiver and estoppel to prevent their eviction. The trial Court had decreed the suit after repelling the plea of limitation, set up inconsistently with a plea of tenancy right by Bajrang Bali Engineering Company, Defendant No. 1 which even alleged to be agents of the plaintiff for letting out lands to others. It also rejected the pleas of waiver and estoppel. It appears that defendant No. 1 taking advantage of the fact that the plaintiff lived at considerable distance from the land in dispute, had started dumping scrap iron on the land. The plaintiff, immediately after becoming aware of this fact, gave notice in writing to Defendant No. 1 on March 24, 1950 to remove these materials. On the failure of Defendant No. 1 comply, suit for the damages for the illegal occupation from March 24, 1950 to May 21, 1951 and then September 1, 1952 to May 8, 1953. The plaintiff had reserved his rights to sue for eviction later. Compromise decrees had been passed in those suits. Defendant No. 1 had agreed to pay for use and occupation. But, the terms of the compromise decrees had not been carried out by Defendant No. 1. In the case before us, Bajrang Bali Engineering Company Defendant No. 1, did not appeal against the decree for possession by removal of the structures put up by the defendants and for mesne profits at the rate of Rs. 175 per day with effect from February 25, 1955 and the award of Rs. 2, 000 for the court fee paid by the plaintiff.3. The High Court had also repelled the pleas of the defendants, who mainly relied on waiver and estoppel, but it modified the decree for mesne profits by awarding only Rs. 3.50 n.p. per day so as to bring the amount awarded to approximately Rs. 100 per month. Against this decree, defendants Nos. 2 to 5 have come up in appeal to this Court and confined their arguments to the pleas of waiver and estoppel and the bar of Order 2, Rule 2, C.P.C.4. After having been taken through the pleadings and the relevant facts and findings in the case, we find ourselves in complete agreement with the views of the trial Court and the High Court, that neither estoppel nor waiver nor Order 2, Rule 2. C.P.C. could bar the plaintiffs suit. Defendant No. 1, who had neither appealed in the High Court nor is among the appellants before us, had failed to establish its claim that it had authority from the plaintiff to either use the land for dumping scrap iron or to let it out to any party as the plaintiffs agent. The defendants-appellants before us relied mainly on the alleged failure to object to the structures made by them for the purpose of manufacturing buckets and automobile parts. But these were not shown to be permanent structures. They were only tin sheds and fittings, which could be and have been ordered to be removed by the contesting defendants-appellants. The mere fact that defendants-appellants were trespassers and that the plaintiff had brought their suit for eviction in 1955, objecting to trespass, could not confer any right upon the defendants appellants, who were said to have been bought on the land by one Shri Agarwala in 1951. Nothing could be shown to us to enable us to hold the findings of the trial court and the High Court on questions of fact were erroneous. It had been rightly held that there was no evidence to show that the plaintiff had in any way encouraged the defendants to incur any expenses or had made any representations to induce them to change their position to their disadvantage. The plaintiff had asserted his rights within a reasonable time after learning of the trespass. He did not stand by watching valuable constructions being put up on his land, but had sent a notice objecting to the trespass as soon as he learnt of it. The defendants had not shown that they had acquired any right in the land from an owner. They had, very half-heartedly, set up a plea of limitation which was not seriously pressed. The whole stand of the defendants-appellants was lacking in bona fides.5. The High Court had observed that principles on which pleas of estoppel and acquiescence can succeed have been laid down in : G. H. C Ariff v. Jadunath Majumdar (58 IA 91, 99 : AIR 1931 IC 762); A. H. Forbes v. Sir L. E. Ralli (52 IA 178 : AIR 1925 PC 146 ) Ahmed Yar Khan v. Secretary of State for India in Council (28 IA 211 : ILR 528 Cal 693 (PC) : 5 CWN 634); Lala Beni Ram v. Kundan Lall (26 IA 58, 63-64 : ILR 21 All 496 : 3 CWN 502) Subodh Chand Mitter v. Bhagwandas Saha (50 CWN 851, 856 and 863 : AIR 1947 Cal 353 : 50 CWN 351); Sir J. W. Ramsden v. Lee Dyson and Joseph Thornton ((1866) House of Lords 129, 1401) Willmott v. Barber ((1880) 15 Ch D 96). The appellants could not bring their case on facts found within the principles laid down in these cases.6. There is no question of applying Order 2, Rule 2, C.P.C when the cause of action for the suit before us is different from the causes of action in the suits which were compromised. The failure of the defendants to carry out the terms of the compromise decrees constitutes a part of the cause of action in the suit before us.
### Response:
0
### Explanation:
4. After having been taken through the pleadings and the relevant facts and findings in the case, we find ourselves in complete agreement with the views of the trial Court and the High Court, that neither estoppel nor waiver nor Order 2, Rule 2. C.P.C. could bar the plaintiffs suit. Defendant No. 1, who had neither appealed in the High Court nor is among the appellants before us, had failed to establish its claim that it had authority from the plaintiff to either use the land for dumping scrap iron or to let it out to any party as the plaintiffs agent. Thebefore us relied mainly on the alleged failure to object to the structures made by them for the purpose of manufacturing buckets and automobile parts. But these were not shown to be permanent structures. They were only tin sheds and fittings, which could be and have been ordered to be removed by the contestingThe mere fact thatwere trespassers and that the plaintiff had brought their suit for eviction in 1955, objecting to trespass, could not confer any right upon the defendants appellants, who were said to have been bought on the land by one Shri Agarwala in 1951. Nothing could be shown to us to enable us to hold the findings of the trial court and the High Court on questions of fact were erroneous. It had been rightly held that there was no evidence to show that the plaintiff had in any way encouraged the defendants to incur any expenses or had made any representations to induce them to change their position to their disadvantage. The plaintiff had asserted his rights within a reasonable time after learning of the trespass. He did not stand by watching valuable constructions being put up on his land, but had sent a notice objecting to the trespass as soon as he learnt of it. The defendants had not shown that they had acquired any right in the land from an owner. They had, veryset up a plea of limitation which was not seriously pressed. The whole stand of thewas lacking in bona fides.There is no question of applying Order 2, Rule 2, C.P.C when the cause of action for the suit before us is different from the causes of action in the suits which were compromised. The failure of the defendants to carry out the terms of the compromise decrees constitutes a part of the cause of action in the suit before us.
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The Collector Of Bombay Vs. Nusserwanji Rattanji Mistri & Others | the taxes etc., are which are leviable or chargeable. Extrinsic evidence of that is admissible, for it neither contradicts nor varies the terms of the deed, but explains the sense in which the parties understood the words of the deed, which, taken by themselves, are capable of explanation : see Bank of New Zealand v. Simpson (1900 A.C. 182)".19. In that case, the dispute was not as to the liability to pay any assessment but to the quantum of assessment payable, and it was a possible view to take that the clause in question was not decisive on that question, and that it was left open. But here, the question is whether a right was granted to the purchasers to hold the lands free from liability to be assessed, and the clause in Exhibit A clearly negatives such a right. Even if we are to regard the question as left open, as observed in Dadoba v. Collector of Bombay ([1901] I.L.R. 25 Bom. 714), it will not assist the respondents, as they have not established aliunde any right to hold the lands free from assessment. It must, therefore, be held that far from exempting the lands from liability to be assessed to revenue, Exhibit A expressly subjects them to it.20. It was finally contended that even if the land acquisition proceedings between 1864 and 1867 had not the effect of extinguishing the right of the Government to levy assessment, and that even if Exhibit A conferred on the purchasers no right to hold the land revenue-free, the assessment which the Government was entitled to levy under section 8 of Act No. II of 1876 was limited to what was payable under the Foras Act No. VI of 1851, and that the appellant had no right to levy assessment at a rate exceeding the same. The argument in support of the contention was that it was an incident of the Foras tenure under which the lands were held, that the occupants were bound to pay only a fixed assessment, that the incident was annexed to the lands, and was inseparable therefrom, that between the dates when the lands were acquired under the Land Acquisition Act No. VI of 1857 and 22-11-1938 when they were sold under Exhibit A they continued to retain their character as Foras lands, that if no assessment was paid on the lands during that period, it was because the hand to pay and the hand to receive were the same, that when they came to the respondents under Exhibit A, they became impressed with the Foras tenure, and that, in consequence, they were liable to be assessed only at the rate payable under Act No. VI of 1851.This contention is, in our judgment, wholly untenable. When the lands were acquired under the Land Acquisition Act No. VI of 1857, the entire "estate, right, title and interest" subsisting thereon became extinguished, and the lands vested in the Government absolutely freed from Foras tenure, and when they were sold by the Government under Exhibit A the purchasers obtained them as freehold and not as Foras lands. As the tenure under which the lands were originally held had become extinguished as a result of the land acquisition proceedings, it was incapable of coming back to life, when the lands were sold under Exhibit A.21. In support of the contention that the incidents of the Foras tenure continued to attach to the lands in the hands of the respondents, the learned Attorney-General relied on the following observations of Das, J. in Collector of Bombay v. Municipal Corporation of the City of Bombay and others (1952 S.C.R. 43, 52) :-"The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose".22. But the point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription a right to hold the lands rent-free, they having entered into possession under a resolution of the Government that no rent would be charged. And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription, one of the rights acquired as part of the prescriptive title was the right to hold the lands revenue-free. But the question here is whether the right to hold the lands under a fixed assessment survived after the acquisition by the Government under the land acquisition proceedings, and that depends on the effect of section VIII of Act VI of 1857. If, as observed in the above passage, the liability to pay assessment was "an integral part or an inseverable incident of the tittle", then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857.There is another difficulty in the way of accepting the contention of the respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands. Section 1 of Act No. XIV of 1870 saves rights "already acquired or accrued", and it is argued that the rights now claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed by the respondents are not within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents.23. | 1[ds]It is common ground that the assessment payable on these lands at that time was 9 reas per burga, and Exhibit N shows that it was at that rate that the assessment was collected from 1858 until the lands were acquired by the Government in land acquisition proceedings. It is accordingly contended for the respondents that under the Act, the Government could not claim anything more than 9 reas per burga as assessment on the lands.It is urged for the appellant that the words "now severally payable" could not be construed as imposing a limitation on the right of the Government to enhance the assessment, as the occur in a saving clause, the scope of which was to reserve the rights of the Company and not to confer on the occupants rights in addition to what the body of the section had granted to them. It is true that the setting in which these words occur is more appropriate for reserving rights in favour of the Company than for declaring any in favour of the occupants. But to adopt the construction contended for by the appellant would be to render the words "now severally payable" and "which shall continue to be payable" wholly meaningless. Notwithstanding that the drafting is inartistic, the true import of the clause unmistakably is that while, on the one hand, the right of the Government to recover the assessment is saved, it is, on the other hand, limited to the amount then payable by the occupants. The contention of the respondents that under the Foras Act they acquired a specific right to hold the lands on payment of assessment not exceeding what was then payable, must, therefore, bethese observations, we are in entire agreement. When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition. The language of section VIII of Act No. VI of 1857 also supports this construction. Under that section, the lands vest in the Government "free from all other estates, rights, titles and interests", which must clearly mean other than those possessed by the Government. It is on this understanding of the section that the award, Exhibit P, iscontention is that as the grant is of a freehold estate without any reservation it must, to take effect according to its tenor, be construed as granting exemption from assessment to revenue. But that will be extending the bounds of section 3 beyond its contents. The object of the Act as declared in the preamble is to remove certain doubts "as to the extent and operation of the Transfer of Property Act, 1882, and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority". Section 2 enacts that the provisions of the Transfer of Property Act do not apply to Crown grants. Then follows section 3 with a positive declaration that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor. Reading the enactment as a whole, the scope of section 3 is that it saves "provisions, restrictions, conditions and limitations over" which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here as to the validity of any provision, restriction, condition, or limitation over, contained in Exhibit A on the ground that it is in contravention of any of the provisions of the Transfer of Property Act, and there is accordingly nothing on which section 3 could takethe point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription a right to hold the lands rent-free, they having entered into possession under a resolution of the Government that no rent would be charged. And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription, one of the rights acquired as part of the prescriptive title was the right to hold the lands revenue-free. But the question here is whether the right to hold the lands under a fixed assessment survived after the acquisition by the Government under the land acquisition proceedings, and that depends on the effect of section VIII of Act VI of 1857. If, as observed in the above passage, the liability to pay assessment was "an integral part or an inseverable incident of the tittle", then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857.There is another difficulty in the way of accepting the contention of the respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands. Section 1 of Act No. XIV of 1870 saves rights "already acquired or accrued", and it is argued that the rights now claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed by the respondents are not within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents. | 1 | 7,810 | 1,121 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the taxes etc., are which are leviable or chargeable. Extrinsic evidence of that is admissible, for it neither contradicts nor varies the terms of the deed, but explains the sense in which the parties understood the words of the deed, which, taken by themselves, are capable of explanation : see Bank of New Zealand v. Simpson (1900 A.C. 182)".19. In that case, the dispute was not as to the liability to pay any assessment but to the quantum of assessment payable, and it was a possible view to take that the clause in question was not decisive on that question, and that it was left open. But here, the question is whether a right was granted to the purchasers to hold the lands free from liability to be assessed, and the clause in Exhibit A clearly negatives such a right. Even if we are to regard the question as left open, as observed in Dadoba v. Collector of Bombay ([1901] I.L.R. 25 Bom. 714), it will not assist the respondents, as they have not established aliunde any right to hold the lands free from assessment. It must, therefore, be held that far from exempting the lands from liability to be assessed to revenue, Exhibit A expressly subjects them to it.20. It was finally contended that even if the land acquisition proceedings between 1864 and 1867 had not the effect of extinguishing the right of the Government to levy assessment, and that even if Exhibit A conferred on the purchasers no right to hold the land revenue-free, the assessment which the Government was entitled to levy under section 8 of Act No. II of 1876 was limited to what was payable under the Foras Act No. VI of 1851, and that the appellant had no right to levy assessment at a rate exceeding the same. The argument in support of the contention was that it was an incident of the Foras tenure under which the lands were held, that the occupants were bound to pay only a fixed assessment, that the incident was annexed to the lands, and was inseparable therefrom, that between the dates when the lands were acquired under the Land Acquisition Act No. VI of 1857 and 22-11-1938 when they were sold under Exhibit A they continued to retain their character as Foras lands, that if no assessment was paid on the lands during that period, it was because the hand to pay and the hand to receive were the same, that when they came to the respondents under Exhibit A, they became impressed with the Foras tenure, and that, in consequence, they were liable to be assessed only at the rate payable under Act No. VI of 1851.This contention is, in our judgment, wholly untenable. When the lands were acquired under the Land Acquisition Act No. VI of 1857, the entire "estate, right, title and interest" subsisting thereon became extinguished, and the lands vested in the Government absolutely freed from Foras tenure, and when they were sold by the Government under Exhibit A the purchasers obtained them as freehold and not as Foras lands. As the tenure under which the lands were originally held had become extinguished as a result of the land acquisition proceedings, it was incapable of coming back to life, when the lands were sold under Exhibit A.21. In support of the contention that the incidents of the Foras tenure continued to attach to the lands in the hands of the respondents, the learned Attorney-General relied on the following observations of Das, J. in Collector of Bombay v. Municipal Corporation of the City of Bombay and others (1952 S.C.R. 43, 52) :-"The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose".22. But the point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription a right to hold the lands rent-free, they having entered into possession under a resolution of the Government that no rent would be charged. And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription, one of the rights acquired as part of the prescriptive title was the right to hold the lands revenue-free. But the question here is whether the right to hold the lands under a fixed assessment survived after the acquisition by the Government under the land acquisition proceedings, and that depends on the effect of section VIII of Act VI of 1857. If, as observed in the above passage, the liability to pay assessment was "an integral part or an inseverable incident of the tittle", then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857.There is another difficulty in the way of accepting the contention of the respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands. Section 1 of Act No. XIV of 1870 saves rights "already acquired or accrued", and it is argued that the rights now claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed by the respondents are not within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents.23.
### Response:
1
### Explanation:
per burga, and Exhibit N shows that it was at that rate that the assessment was collected from 1858 until the lands were acquired by the Government in land acquisition proceedings. It is accordingly contended for the respondents that under the Act, the Government could not claim anything more than 9 reas per burga as assessment on the lands.It is urged for the appellant that the words "now severally payable" could not be construed as imposing a limitation on the right of the Government to enhance the assessment, as the occur in a saving clause, the scope of which was to reserve the rights of the Company and not to confer on the occupants rights in addition to what the body of the section had granted to them. It is true that the setting in which these words occur is more appropriate for reserving rights in favour of the Company than for declaring any in favour of the occupants. But to adopt the construction contended for by the appellant would be to render the words "now severally payable" and "which shall continue to be payable" wholly meaningless. Notwithstanding that the drafting is inartistic, the true import of the clause unmistakably is that while, on the one hand, the right of the Government to recover the assessment is saved, it is, on the other hand, limited to the amount then payable by the occupants. The contention of the respondents that under the Foras Act they acquired a specific right to hold the lands on payment of assessment not exceeding what was then payable, must, therefore, bethese observations, we are in entire agreement. When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition. The language of section VIII of Act No. VI of 1857 also supports this construction. Under that section, the lands vest in the Government "free from all other estates, rights, titles and interests", which must clearly mean other than those possessed by the Government. It is on this understanding of the section that the award, Exhibit P, iscontention is that as the grant is of a freehold estate without any reservation it must, to take effect according to its tenor, be construed as granting exemption from assessment to revenue. But that will be extending the bounds of section 3 beyond its contents. The object of the Act as declared in the preamble is to remove certain doubts "as to the extent and operation of the Transfer of Property Act, 1882, and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority". Section 2 enacts that the provisions of the Transfer of Property Act do not apply to Crown grants. Then follows section 3 with a positive declaration that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor. Reading the enactment as a whole, the scope of section 3 is that it saves "provisions, restrictions, conditions and limitations over" which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here as to the validity of any provision, restriction, condition, or limitation over, contained in Exhibit A on the ground that it is in contravention of any of the provisions of the Transfer of Property Act, and there is accordingly nothing on which section 3 could takethe point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription a right to hold the lands rent-free, they having entered into possession under a resolution of the Government that no rent would be charged. And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription, one of the rights acquired as part of the prescriptive title was the right to hold the lands revenue-free. But the question here is whether the right to hold the lands under a fixed assessment survived after the acquisition by the Government under the land acquisition proceedings, and that depends on the effect of section VIII of Act VI of 1857. If, as observed in the above passage, the liability to pay assessment was "an integral part or an inseverable incident of the tittle", then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857.There is another difficulty in the way of accepting the contention of the respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were no longer available in respect of the lands. Section 1 of Act No. XIV of 1870 saves rights "already acquired or accrued", and it is argued that the rights now claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal, and the rights now claimed by the respondents are not within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents.
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Ahmedabad Mfg. & Calico Ptg. Co. Ltd Vs. Ram Tahel Ramnand & Ors | the nature of the work done by the malis in this case and that, therefore, the appellant cannot appropriately ask this Court to determine these questions which a awaiting decision by the Industrial Court, also relied on Basti Sugar Mills Ltd. v. Ram Ujagar, (1964) 2 SCR 838 = (AIR 1964 SC 355 ) and on J. K. Cotton Spg. and Wvg. Mills (supra). In the former case the respondents there employed by a contractor to remove press mud from the sugar factory were held to be workmen employed by the factory because removing press mud was considered ordinarily to be a part of the sugar industry. The latter case is an authority for the proposition that an employee engaged in any work or operation which is incidentally connected with the main industry is a workmen if other requirements of S. 2 (s) of the Industrial Disputes Act, 14 of 1947 are satisfied and that the malis in that case were workers within the meaning of S. 2 of U.P. Industrial Disputes Act 28 of 1947.The bungalows and gardens on which the mails in that case worked were a kind of amenity supplied by the mills to its officers and on this reasoning the malis were held to be engaged in operations incidentally connected with the main industry carried on by the employer. It was by relying on the ratio of this decision that the High Court in the present case came to the conclusion that the workers in order to come within the definition of "employee" need not necessarily be directly connected with the manufacture of textile fabrics. This decision is binding on us and indeed Shri Desai also fairly accepted its ratio. He only contended that the malis employed by a contractor unless directly connected with the textile operation cannot get the benefit of this decision.16. In our view on the conclusions of the High Court which have not been shown to be erroneous justifying interference it is not possible to reverse its decision on the basis of the abstract submission advanced by Shri Desai. As observed in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 1964 SC 737 ) (supra), the problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law. This concept of social justice has a comprehensive sweep and it is neither pedantic nor one-sided but is founded on socio-economic equality. It demands a realistic and pragmatic approach for resolving the controversy between capital and labour by weighing it on an even scale with the consciousness that industrial operations in modern times have become complex and complicated and for the efficient and successful functioning of an industry various amenities for those working in it are deemed as essential for a peaceful and healthy atmosphere. The High Court has left open for the decision by the Industrial Court the question as to the nature of the work done by the respondents for determining whether or not, in view of the fact that they are employed through a contractor and not directly, their case falls within S. 3 (13). This is what the High Court has said :"It was urged by Mr. Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns, a Government Post Office and Museum which were open to public and some quarters for workers as well as assistants and officers of a hospital. It was also urged by Mr. Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim. It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court, looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor, they could not be covered within the scope of Section 3 (13) of the Bombay Industrial Relations Act. Since this contention has not been considered by the Industrial Court, we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent no. 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised.Subject to this, the order of the Second Labour Court Ahmedabad dated 9th August, 1963 passed in Application No. 2005 of 1962 and the order of the Industrial Court, Ahmedabad dated 5th February, 1964 passed in Appeal (I.C.) no. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above."17. There is no cogent ground why this matter should be decided by this Court and not by the Industrial Court in the normal course as directed by the High Court. In our opinion the order of the High Court is legally correct and is also eminently just and fair. We are unable, therefore, to agree with Mr. Desai that this order requires any interference. The principle followed by the High Court is the one which was laid down by this Court in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 964 SC 737) (supra). The decisions of the Labour Court and the Industrial Court were based on misconception of the legal position and the High Court was within its authority to interfere under Art. 227 of the Constitution to quash them. | 0[ds]10. Before considering these points it would not be out of place to mention that in the certificate of fitness granted by the High Court is not indication about the precise point or points which induced the High Court to certify the case to be fit for appeal under Clause (c) of Article 133 (1) . This clause though couched in general terms is intended to apply to special cases in which the question raised is of such great public or private importance as deserves appropriately to be authoritatively settled by this Court. This clause of course does not in terms say so but it has always been so construed. The question whether or not to certify a given case to be fit for appeal under this clause is a matter for the judicial discretion of the High Court. The word "certify" used in this clause suggests that the High Court is expected to apply its mind before certifying the case to be fit for appeal. The mere grant of a certificate would, however, not preclude this Court from determining whether the conditions prerequisite for the grant are satisfied. It is, therefore, always desirable and expedient for the High Court to give its reasons for granting the certificate. That would assist this Court better in appreciating if the conditions pre-requisite are satisfied. In the application for certificate in the present case a number of grounds were stated for securing it. We are unable to find from the certificate as to which ground was considered by the High Court to be important enough to justify the certificate.11. Not, in this case the respondents in fact questioned before us the competence of the High Court to grant the certificate of fitness but the objection raised by Shri Shukla was based only on the submission that Article 133 is inapplicable because the impugned order is not a final order. We may first deal with this preliminarydecision, therefore, does not assist us on the precise question raised. The next decision relied upon by Mr. Desai, is reported as Hakim Singh v. J. C. Mills Ltd. 1963 MPLJ 714. In that case the mills had employed a contractor to supply packing material. The contractor because of the nature of his work was given a room in the mills premises for preparing a particular packing material. An employee of the contractor applied to the Industrial Court for relief under the provisions of the Act. It was held that he could not be deemed to be an employee of the mills because the work which was carried on by the employer of the petitioner was not a part of the industrial undertaking. While commenting on the scope of S. 3 (13) (a) and S. 3 (14) (e) of the act which define the words "employee" and "employer", it was said that for the purpose of these provisions, there must be an industrial undertaking owned by somebody: some work, which is ordinary part of the undertaking must have been entrusted by the owner to the contractor: that contractor must be employing an employee: that employee can then by the combined operation of these provisions insist upon being treated as employee of the owner himself, the obvious idea behind this scheme being that the owner of an industrial undertaking should not be allowed to evade responsibilities towards his employees which are imposed by the labour laws, by entrusting a part or whole of the undertaking to a contractor. The actual decision of this case is on different facts and is clearly not of much help though the observations regarding the purpose of the provisions of the definitions admit of no controversy. Reliance was further placed by Shri Desai on the decision of this Court in M/s. Godavari Sugar Mills Ltd. v. D. K. Worlikar, (1960) 3 SCR 305 = (AIR 1960 SC 842 ) where a notification applicable to the manufacture of sugar and its by-products was held not to cover the head-office of the sugar mills at Bombay and the employees engaged there, when the head-office was separated from the factories by hundreds of miles. The notification was held not to cover sugar industry as such. Shri Desai also sought support from Devijibhai M. Chokshi v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. 1958-2 Lab LJ 126 (a decision of the Industrial Court, Bombay) which dealt with running of a retail shop; New India Tannis v. Aurora Singh Mojbi AIR 1957 Cal. 613 a case of doing repairs to the machinery of the factory and from S. M. Ghose v. National Sheet and Metal Works Ltd. AIR 1950 Cal. 548 , a case of an employee of a contractor engaged to paint the premises. Both the Calcutta decisions are under the Workmens Compensation Act.In our view on the conclusions of the High Court which have not been shown to be erroneous justifying interference it is not possible to reverse its decision on the basis of the abstract submission advanced by Shri Desai. As observed in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 1964 SC 737 ) (supra), the problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law. This concept of social justice has a comprehensive sweep and it is neither pedantic nor one-sided but is founded on socio-economic equality. It demands a realistic and pragmatic approach for resolving the controversy between capital and labour by weighing it on an even scale with the consciousness that industrial operations in modern times have become complex and complicated and for the efficient and successful functioning of an industry various amenities for those working in it are deemed as essential for a peaceful and healthy atmosphere. The High Court has left open for the decision by the Industrial Court the question as to the nature of the work done by the respondents for determining whether or not, in view of the fact that they are employed through a contractor and not directly, their case falls within S. 3 (13). This is what the High Court has saidwas urged by Mr. Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns, a Government Post Office and Museum which were open to public and some quarters for workers as well as assistants and officers of a hospital. It was also urged by Mr. Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim. It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court, looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor, they could not be covered within the scope of Section 3 (13) of the Bombay Industrial Relations Act. Since this contention has not been considered by the Industrial Court, we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent no. 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised.Subject to this, the order of the Second Labour Court Ahmedabad dated 9th August, 1963 passed in Application No. 2005 of 1962 and the order of the Industrial Court, Ahmedabad dated 5th February, 1964 passed in Appeal (I.C.) no. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above.There is no cogent ground why this matter should be decided by this Court and not by the Industrial Court in the normal course as directed by the High Court. In our opinion the order of the High Court is legally correct and is also eminently just and fair. We are unable, therefore, to agree with Mr. Desai that this order requires any interference. The principle followed by the High Court is the one which was laid down by this Court in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 964 SC 737) (supra). The decisions of the Labour Court and the Industrial Court were based on misconception of the legal position and the High Court was within its authority to interfere under Art. 227 of the Constitution to quash them. | 0 | 6,707 | 1,610 | ### 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 nature of the work done by the malis in this case and that, therefore, the appellant cannot appropriately ask this Court to determine these questions which a awaiting decision by the Industrial Court, also relied on Basti Sugar Mills Ltd. v. Ram Ujagar, (1964) 2 SCR 838 = (AIR 1964 SC 355 ) and on J. K. Cotton Spg. and Wvg. Mills (supra). In the former case the respondents there employed by a contractor to remove press mud from the sugar factory were held to be workmen employed by the factory because removing press mud was considered ordinarily to be a part of the sugar industry. The latter case is an authority for the proposition that an employee engaged in any work or operation which is incidentally connected with the main industry is a workmen if other requirements of S. 2 (s) of the Industrial Disputes Act, 14 of 1947 are satisfied and that the malis in that case were workers within the meaning of S. 2 of U.P. Industrial Disputes Act 28 of 1947.The bungalows and gardens on which the mails in that case worked were a kind of amenity supplied by the mills to its officers and on this reasoning the malis were held to be engaged in operations incidentally connected with the main industry carried on by the employer. It was by relying on the ratio of this decision that the High Court in the present case came to the conclusion that the workers in order to come within the definition of "employee" need not necessarily be directly connected with the manufacture of textile fabrics. This decision is binding on us and indeed Shri Desai also fairly accepted its ratio. He only contended that the malis employed by a contractor unless directly connected with the textile operation cannot get the benefit of this decision.16. In our view on the conclusions of the High Court which have not been shown to be erroneous justifying interference it is not possible to reverse its decision on the basis of the abstract submission advanced by Shri Desai. As observed in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 1964 SC 737 ) (supra), the problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law. This concept of social justice has a comprehensive sweep and it is neither pedantic nor one-sided but is founded on socio-economic equality. It demands a realistic and pragmatic approach for resolving the controversy between capital and labour by weighing it on an even scale with the consciousness that industrial operations in modern times have become complex and complicated and for the efficient and successful functioning of an industry various amenities for those working in it are deemed as essential for a peaceful and healthy atmosphere. The High Court has left open for the decision by the Industrial Court the question as to the nature of the work done by the respondents for determining whether or not, in view of the fact that they are employed through a contractor and not directly, their case falls within S. 3 (13). This is what the High Court has said :"It was urged by Mr. Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns, a Government Post Office and Museum which were open to public and some quarters for workers as well as assistants and officers of a hospital. It was also urged by Mr. Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim. It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court, looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor, they could not be covered within the scope of Section 3 (13) of the Bombay Industrial Relations Act. Since this contention has not been considered by the Industrial Court, we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent no. 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised.Subject to this, the order of the Second Labour Court Ahmedabad dated 9th August, 1963 passed in Application No. 2005 of 1962 and the order of the Industrial Court, Ahmedabad dated 5th February, 1964 passed in Appeal (I.C.) no. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above."17. There is no cogent ground why this matter should be decided by this Court and not by the Industrial Court in the normal course as directed by the High Court. In our opinion the order of the High Court is legally correct and is also eminently just and fair. We are unable, therefore, to agree with Mr. Desai that this order requires any interference. The principle followed by the High Court is the one which was laid down by this Court in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 964 SC 737) (supra). The decisions of the Labour Court and the Industrial Court were based on misconception of the legal position and the High Court was within its authority to interfere under Art. 227 of the Constitution to quash them.
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of the undertaking must have been entrusted by the owner to the contractor: that contractor must be employing an employee: that employee can then by the combined operation of these provisions insist upon being treated as employee of the owner himself, the obvious idea behind this scheme being that the owner of an industrial undertaking should not be allowed to evade responsibilities towards his employees which are imposed by the labour laws, by entrusting a part or whole of the undertaking to a contractor. The actual decision of this case is on different facts and is clearly not of much help though the observations regarding the purpose of the provisions of the definitions admit of no controversy. Reliance was further placed by Shri Desai on the decision of this Court in M/s. Godavari Sugar Mills Ltd. v. D. K. Worlikar, (1960) 3 SCR 305 = (AIR 1960 SC 842 ) where a notification applicable to the manufacture of sugar and its by-products was held not to cover the head-office of the sugar mills at Bombay and the employees engaged there, when the head-office was separated from the factories by hundreds of miles. The notification was held not to cover sugar industry as such. Shri Desai also sought support from Devijibhai M. Chokshi v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. 1958-2 Lab LJ 126 (a decision of the Industrial Court, Bombay) which dealt with running of a retail shop; New India Tannis v. Aurora Singh Mojbi AIR 1957 Cal. 613 a case of doing repairs to the machinery of the factory and from S. M. Ghose v. National Sheet and Metal Works Ltd. AIR 1950 Cal. 548 , a case of an employee of a contractor engaged to paint the premises. Both the Calcutta decisions are under the Workmens Compensation Act.In our view on the conclusions of the High Court which have not been shown to be erroneous justifying interference it is not possible to reverse its decision on the basis of the abstract submission advanced by Shri Desai. As observed in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 1964 SC 737 ) (supra), the problem has to be looked at from the considerations of social justice which has become an integral part of our industrial law. This concept of social justice has a comprehensive sweep and it is neither pedantic nor one-sided but is founded on socio-economic equality. It demands a realistic and pragmatic approach for resolving the controversy between capital and labour by weighing it on an even scale with the consciousness that industrial operations in modern times have become complex and complicated and for the efficient and successful functioning of an industry various amenities for those working in it are deemed as essential for a peaceful and healthy atmosphere. The High Court has left open for the decision by the Industrial Court the question as to the nature of the work done by the respondents for determining whether or not, in view of the fact that they are employed through a contractor and not directly, their case falls within S. 3 (13). This is what the High Court has saidwas urged by Mr. Patel that the garden in which the petitioners were working as gardeners was not situated within the premises of the mill and that the garden area included a large area of offices of some other concerns, a Government Post Office and Museum which were open to public and some quarters for workers as well as assistants and officers of a hospital. It was also urged by Mr. Patel that the garden area comprised of the above buildings and the area round the caustic plant factory as well as the field at Dani Limda in respect of which an agreement was entered into with the contractor for keeping the trees and plants in proper trim. It appears that this contention made on behalf of the mills was not considered by the Industrial Court as it appears from para 7 of the order of the Industrial Court because according to the Industrial Court, looking to the nature of the work done by the petitioners and to the fact that they were not directly employed by the employer but through a contractor, they could not be covered within the scope of Section 3 (13) of the Bombay Industrial Relations Act. Since this contention has not been considered by the Industrial Court, we do not wish to express any opinion as regards the merits of this contention and it would be open to Respondent no. 1 to raise the contention before the Industrial Court which will decide on the merits of the contention if raised.Subject to this, the order of the Second Labour Court Ahmedabad dated 9th August, 1963 passed in Application No. 2005 of 1962 and the order of the Industrial Court, Ahmedabad dated 5th February, 1964 passed in Appeal (I.C.) no. 123 of 1963 must be quashed and set aside and we direct that the matter should now be decided by the Industrial Court in the light of the observations made above.There is no cogent ground why this matter should be decided by this Court and not by the Industrial Court in the normal course as directed by the High Court. In our opinion the order of the High Court is legally correct and is also eminently just and fair. We are unable, therefore, to agree with Mr. Desai that this order requires any interference. The principle followed by the High Court is the one which was laid down by this Court in J. K. Cotton Spg. and Wvg. Mills case, (1964) 3 SCR 724 = (AIR 964 SC 737) (supra). The decisions of the Labour Court and the Industrial Court were based on misconception of the legal position and the High Court was within its authority to interfere under Art. 227 of the Constitution to quash them.
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S.K. Ray Vs. State Of Orissa | held that inasmuch as an investigation, proceeding or remedy pending with the Lokpal on 16.7.1992, the date of coming into force of the Repealing Act, under the Act so repealed shall not be continued or enforced, the continuance of the office of Lokpal was wholly redundant and in that view, the right, if any, of the appellant to hold the office of the Lokpal for a term of five years is not preserved either in terms of Section 2 of the Repealing Act or section 5 of the Orissa General Clauses Act. The matter has been looked at from the angle whether the office of Lokpal would continued and, therefore, whether the appellant would be entitled to any emoluments or compensation. But the entire scheme of the enactment has not been taken note of by the High Court. Under the scheme of the enactment under which the appellant was appointed, he cannot hold any office of trust or profit or he shall not be a member of the legislature, central or state, or any other position, which may come in conflict with the office of Lokpal. Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he has incurred any disqualification not to hold any office in terms of Section 5(3) of the Act. That means there is a disability attached to him for all time to come thereafter. We specifically asked the learned counsel appearing for the respondents as to whether the said disability would disappear on the repealing of the enactment an, of course, he submitted that it would not. If that is the reasonable approach, the appellant is put to a disadvantage by reason of holding the office of Lokpal, which was put to an end abruptly by repealing enactment. In that event, he certainly becomes entitled to compensation if not for loss of office but for carrying a burden of not holding any office or position thereafter. It thus becomes clear that such person must be adequately or appropriately compensated. It cannot be said that the Government will control the activities of a person who will incur certain liabilities or obligations but he shall not be suitable compensated for the same; In a situation of this sort, we think that adequate compensation will be the loss of his salary for the remainder tenure for which he would have held the office of the Lokpal. We, therefore, direct the respondents to work out and pay the difference in salary that the appellant will become entitled to by this order on ceasing to hold the office of the Lokpal and pay the same to him. But this direction will not entitle the appellant to claim any other allowance or perks to be converted into cash.9. There are two ways of understanding the effect of abolition of the office of Lokpal, which resulted in curtailment of the tenure of the office of the appellant. One is that the appellant having held the office at least for some time is subject to all the restrictions arising under the provisions of the Act, including those which debar him from holding any office on his ceasing to be Lokpal. The other point of view could be that on the abolition of the post the restrictions as to holding of office on the appellant ceasing to be the Lokpal will not be attached to him. The latter view, if taken, would lead to incongruous results because the incumbent in office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restriction continue to be operative on abolition of the office the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter. 10. The learned counsel for respondents contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the office of the Lokpal. He is deprived of all other offices or business interest when he holds the office of the Lokpal and the office, which he holds, is also denied to him by reason of the Repealing. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic. 11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is file under Article 226 of the Constitution, sets out the facts and the claims arising thereto. May be in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same. | 1[ds]8. The High Court, on examining these two provision, held that inasmuch as an investigation, proceeding or remedy pending with the Lokpal on 16.7.1992, the date of coming into force of the Repealing Act, under the Act so repealed shall not be continued or enforced, the continuance of the office of Lokpal was wholly redundant and in that view, the right, if any, of the appellant to hold the office of the Lokpal for a term of five years is not preserved either in terms of Section 2 of the Repealing Act or section 5 of the Orissa General Clauses Act. The matter has been looked at from the angle whether the office of Lokpal would continued and, therefore, whether the appellant would be entitled to any emoluments or compensation. But the entire scheme of the enactment has not been taken note of by the High Court. Under the scheme of the enactment under which the appellant was appointed, he cannot hold any office of trust or profit or he shall not be a member of the legislature, central or state, or any other position, which may come in conflict with the office of Lokpal. Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he has incurred any disqualification not to hold any office in terms of Section 5(3) of the Act. That means there is a disability attached to him for all time to come thereafter. We specifically asked the learned counsel appearing for the respondents as to whether the said disability would disappear on the repealing of the enactment an, of course, he submitted that it would not. If that is the reasonable approach, the appellant is put to a disadvantage by reason of holding the office of Lokpal, which was put to an end abruptly by repealing enactment. In that event, he certainly becomes entitled to compensation if not for loss of office but for carrying a burden of not holding any office or position thereafter. It thus becomes clear that such person must be adequately or appropriately compensated. It cannot be said that the Government will control the activities of a person who will incur certain liabilities or obligations but he shall not be suitable compensated for the same; In a situation of this sort, we think that adequate compensation will be the loss of his salary for the remainder tenure for which he would have held the office of the Lokpal. We, therefore, direct the respondents to work out and pay the difference in salary that the appellant will become entitled to by this order on ceasing to hold the office of the Lokpal and pay the same to him. But this direction will not entitle the appellant to claim any other allowance or perks to be converted into cash.9. There are two ways of understanding the effect of abolition of the office of Lokpal, which resulted in curtailment of the tenure of the office of the appellant. One is that the appellant having held the office at least for some time is subject to all the restrictions arising under the provisions of the Act, including those which debar him from holding any office on his ceasing to be Lokpal. The other point of view could be that on the abolition of the post the restrictions as to holding of office on the appellant ceasing to be the Lokpal will not be attached to him. The latter view, if taken, would lead to incongruous results because the incumbent in office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restriction continue to be operative on abolition of the office the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter. | 1 | 2,197 | 811 | ### 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:
held that inasmuch as an investigation, proceeding or remedy pending with the Lokpal on 16.7.1992, the date of coming into force of the Repealing Act, under the Act so repealed shall not be continued or enforced, the continuance of the office of Lokpal was wholly redundant and in that view, the right, if any, of the appellant to hold the office of the Lokpal for a term of five years is not preserved either in terms of Section 2 of the Repealing Act or section 5 of the Orissa General Clauses Act. The matter has been looked at from the angle whether the office of Lokpal would continued and, therefore, whether the appellant would be entitled to any emoluments or compensation. But the entire scheme of the enactment has not been taken note of by the High Court. Under the scheme of the enactment under which the appellant was appointed, he cannot hold any office of trust or profit or he shall not be a member of the legislature, central or state, or any other position, which may come in conflict with the office of Lokpal. Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he has incurred any disqualification not to hold any office in terms of Section 5(3) of the Act. That means there is a disability attached to him for all time to come thereafter. We specifically asked the learned counsel appearing for the respondents as to whether the said disability would disappear on the repealing of the enactment an, of course, he submitted that it would not. If that is the reasonable approach, the appellant is put to a disadvantage by reason of holding the office of Lokpal, which was put to an end abruptly by repealing enactment. In that event, he certainly becomes entitled to compensation if not for loss of office but for carrying a burden of not holding any office or position thereafter. It thus becomes clear that such person must be adequately or appropriately compensated. It cannot be said that the Government will control the activities of a person who will incur certain liabilities or obligations but he shall not be suitable compensated for the same; In a situation of this sort, we think that adequate compensation will be the loss of his salary for the remainder tenure for which he would have held the office of the Lokpal. We, therefore, direct the respondents to work out and pay the difference in salary that the appellant will become entitled to by this order on ceasing to hold the office of the Lokpal and pay the same to him. But this direction will not entitle the appellant to claim any other allowance or perks to be converted into cash.9. There are two ways of understanding the effect of abolition of the office of Lokpal, which resulted in curtailment of the tenure of the office of the appellant. One is that the appellant having held the office at least for some time is subject to all the restrictions arising under the provisions of the Act, including those which debar him from holding any office on his ceasing to be Lokpal. The other point of view could be that on the abolition of the post the restrictions as to holding of office on the appellant ceasing to be the Lokpal will not be attached to him. The latter view, if taken, would lead to incongruous results because the incumbent in office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restriction continue to be operative on abolition of the office the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter. 10. The learned counsel for respondents contended that loss of employment in such a situation is only a contingency of service and the right to abolish the post is available with the Government in the same manner as the right to create a post and a person whose post has been abolished should not entitled to salary. In our view, these arguments have absolutely no relevance to the question which we have examined. The crux of the matter in this case is the effect of the disqualification of not holding any office after ceasing to hold the office of the Lokpal. He is deprived of all other offices or business interest when he holds the office of the Lokpal and the office, which he holds, is also denied to him by reason of the Repealing. If the argument of the learned counsel for the respondents is accepted, it would lead to incongruity and would baffle all logic. 11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is file under Article 226 of the Constitution, sets out the facts and the claims arising thereto. May be in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same.
### Response:
1
### Explanation:
8. The High Court, on examining these two provision, held that inasmuch as an investigation, proceeding or remedy pending with the Lokpal on 16.7.1992, the date of coming into force of the Repealing Act, under the Act so repealed shall not be continued or enforced, the continuance of the office of Lokpal was wholly redundant and in that view, the right, if any, of the appellant to hold the office of the Lokpal for a term of five years is not preserved either in terms of Section 2 of the Repealing Act or section 5 of the Orissa General Clauses Act. The matter has been looked at from the angle whether the office of Lokpal would continued and, therefore, whether the appellant would be entitled to any emoluments or compensation. But the entire scheme of the enactment has not been taken note of by the High Court. Under the scheme of the enactment under which the appellant was appointed, he cannot hold any office of trust or profit or he shall not be a member of the legislature, central or state, or any other position, which may come in conflict with the office of Lokpal. Having deprived himself of holding any other office or position which may come in conflict with the office of Lokpal, he cannot also hold any office even after he ceases to hold the office of the Lokpal to which we have already adverted. Hence, what is to be looked at in a case of this nature is that even after ceasing to hold the office of Lokpal whether strings are attached to him by reason of his holding the office earlier and thus he has incurred any disqualification not to hold any office in terms of Section 5(3) of the Act. That means there is a disability attached to him for all time to come thereafter. We specifically asked the learned counsel appearing for the respondents as to whether the said disability would disappear on the repealing of the enactment an, of course, he submitted that it would not. If that is the reasonable approach, the appellant is put to a disadvantage by reason of holding the office of Lokpal, which was put to an end abruptly by repealing enactment. In that event, he certainly becomes entitled to compensation if not for loss of office but for carrying a burden of not holding any office or position thereafter. It thus becomes clear that such person must be adequately or appropriately compensated. It cannot be said that the Government will control the activities of a person who will incur certain liabilities or obligations but he shall not be suitable compensated for the same; In a situation of this sort, we think that adequate compensation will be the loss of his salary for the remainder tenure for which he would have held the office of the Lokpal. We, therefore, direct the respondents to work out and pay the difference in salary that the appellant will become entitled to by this order on ceasing to hold the office of the Lokpal and pay the same to him. But this direction will not entitle the appellant to claim any other allowance or perks to be converted into cash.9. There are two ways of understanding the effect of abolition of the office of Lokpal, which resulted in curtailment of the tenure of the office of the appellant. One is that the appellant having held the office at least for some time is subject to all the restrictions arising under the provisions of the Act, including those which debar him from holding any office on his ceasing to be Lokpal. The other point of view could be that on the abolition of the post the restrictions as to holding of office on the appellant ceasing to be the Lokpal will not be attached to him. The latter view, if taken, would lead to incongruous results because the incumbent in office of the Lokpal, having functioned as such at least for some time, would have dealt with many matters and, therefore, to maintain the purity of that office, the restrictions imposed under the Act should be maintained. The only other reasonable way, therefore, is to interpret the provisions to the effect that even when such restriction continue to be operative on abolition of the office the incumbent in office should be reasonably compensated not for deprivation of the office but for attachment of the restrictions thereafter.
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Essar Steel India Ltd. Vs. State Of Gujarat | the capacity available and the dispatch instructions were to be issued on the basis of the said declaration. It could not thus be said that EPL had no obligation to declare the capacity and the obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by EPL. Contrary view of the Tribunal is clearly erroneous. In para 45 and 46 and elsewhere in its judgment, the Tribunal erred in holding that there was no obligation to declare available capacity on proportionate basis. The finding of the Commission in paras 9.5 to 9.12 of its order quoted above is the correct interpretation of the agreement. We hold accordingly." 29. In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30. Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption. High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court. Claim under notification dated 27.02.1992 31. The notification dated 27.02.1992 was issued in exercise of power conferred by Section 3(3) of Bombay Electricity Act, 1958. The relevant part of the notification dated 27.02.1992, is as follows:- "NOTIFICATIONSachivalaya Gandhinagar27th February, 1992BOMBAY ELECTRICITY DUTY ACT, 1958No. GHC/92/10/JCP/1188/2594/KIn exercise of the powers conferred by Sub Section (3) of the Section 3 of the Bombay Electricity Duty Act,1958(Bom. XL of 1958), the Government of Gujarat hereby remitted with effect on and from the date of publication of this notification in the Official Gazette. In the whole of the State of Gujarat, the Electricity Duty payable under item (6) of Part I of Schedule II to the said Act, on the energy consumed for motive power and lighting for Industrial purposes by industrial under takings which generate energy jointly for their own use either by establishing an independent joint company solely for this purpose or on pro-rata cost sharing basis, for a period of ten years from the date of commissioning of the generating sets subject to the following terms and conditions namely:-(a) The generating set or sets shall have been purchased and installed or commissioned during the period beginning from 1st January, 1991 and ending on 31st December, 1992. Providing that such generating act or sets shall not have been previously used in the State.****** ******" 32. The claim raised by the appellant under the above said notification was specifically dealt by the High Court and the Government. The condition which was found lacking for applicability of the notification was that generating sets were not purchased or installed or commissioned during the period from 01.01.1991 to 31.12.1992. The High Court has recorded categorical finding that the generating sets have been commissioned in the month of August 1995. It is useful to refer to paragraph 12.0 of the judgment of Division Bench which is to the following effect:- "12.0. Now, so far as the alternative claim of the appellants to grant the exemption for a period of 10 years under the Notification dated 27.02.1992 is concerned, on considering Notification dated 27.02.1992, it appears that the conditions precedent laid down in the said notification cannot be said to have been compiled by the appellants more particularly appellant No.1 - ESL. For claiming the benefit of notification dated 27.02.1992 it is to be established that the generating set or sets have been purchased/installed or commissioned during the period beginning from 01.01.1991 and ending on 31.12.1992. From the record it appears that the generating sets have been commissioned in the month of August 1995, the appellants have failed to establish that the generating sets were even purchased during the aforesaid period. It cannot be disputed that in a taxing statute more particularly with respect to the exemption from payment of duty, all the conditions which can be said to be statutory are required to be fulfilled and unless and until all the conditions stipulated in the exemption notification are satisfied and/or compiled with, there shall not be any exemption under the notification. In the present case, admittedly, the generating sets in question have been commissioned in the month of August 1995. The appellants have failed to establish that they even purchased the generating sets during the period beginning from 01.01.1991 to 31.12.1992. More placement of order for purchase cannot amount to actual purchase of the generating sets." 33. Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992. | 0[ds]12. From the facts which have come on the record it is clear that appellant no.1 had claimed exemption from duty under the provisions of Section 3(2)(vii) as well as under the notification issued under Section 3(3) of 1958 Act for different period which exemption was earlier granted. Details of benefit of exemption availed by appellant no.1 has been extracted by Division Bench of High Court in Para 5.4 of the judgment.13. In the present case, no application in the prescribed form as per Rule 11 of the Rules was filed by the appellant no.1 and for the first time the appellant had come up with an application dated 15.03.2001 seeking an exemption under notification dated 27.02.1992 and subsequently on 12.04.2001 has again claimed exemption under Section 3(2)(vii)(a) (i) of 1958 Act. The exemption from payment of duty as claimed by the appellant is in two parts. Firstly, under Section 3(2)(vii)(a)(i) of 1958 Act and secondly, under the notification dated 27.02.1992.In the present case, there is no dispute to the fact that appellant No.2 was created as a Special Purpose Vehicle by appellant No.1 itself. Had appellant No.2 would have been supplying energy to appellant No.1 only, the claim deserved consideration. But present is a case where the appellant no.2 is supplying energy to industrial undertakings with whom it is not jointly generating the energy. Judgment of this Court in State of U.P. and Renusagar Company, thus, has no application in the facts of present case.The judgment of Andhra Pradesh Gas Power Corporation Limited is clearly distinguishable and does not help the appellant in present case. In the aforesaid case the energy was utilized by the participating industries and the concerned holding shares of A.P.GPCL but supply of energy to the sister concerned was required to have license. Present is a case where Gujarat Electricity Board who has been allocated 300 MW is not a participating industry nor appellant no.2 is jointly generating the energy with Gujarat Electricity Board, even if it is held that the appellant no.1 to the extent it holds 42% equity shares of appellant no.2 is jointly generating the energy. The Gujarat Electricity Board which has been allocated 58% of electricity generated can not be said as the industrial undertaking jointly generating the energy.In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30.Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption.High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court.Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992. | 0 | 7,678 | 800 | ### 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 capacity available and the dispatch instructions were to be issued on the basis of the said declaration. It could not thus be said that EPL had no obligation to declare the capacity and the obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by EPL. Contrary view of the Tribunal is clearly erroneous. In para 45 and 46 and elsewhere in its judgment, the Tribunal erred in holding that there was no obligation to declare available capacity on proportionate basis. The finding of the Commission in paras 9.5 to 9.12 of its order quoted above is the correct interpretation of the agreement. We hold accordingly." 29. In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30. Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption. High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court. Claim under notification dated 27.02.1992 31. The notification dated 27.02.1992 was issued in exercise of power conferred by Section 3(3) of Bombay Electricity Act, 1958. The relevant part of the notification dated 27.02.1992, is as follows:- "NOTIFICATIONSachivalaya Gandhinagar27th February, 1992BOMBAY ELECTRICITY DUTY ACT, 1958No. GHC/92/10/JCP/1188/2594/KIn exercise of the powers conferred by Sub Section (3) of the Section 3 of the Bombay Electricity Duty Act,1958(Bom. XL of 1958), the Government of Gujarat hereby remitted with effect on and from the date of publication of this notification in the Official Gazette. In the whole of the State of Gujarat, the Electricity Duty payable under item (6) of Part I of Schedule II to the said Act, on the energy consumed for motive power and lighting for Industrial purposes by industrial under takings which generate energy jointly for their own use either by establishing an independent joint company solely for this purpose or on pro-rata cost sharing basis, for a period of ten years from the date of commissioning of the generating sets subject to the following terms and conditions namely:-(a) The generating set or sets shall have been purchased and installed or commissioned during the period beginning from 1st January, 1991 and ending on 31st December, 1992. Providing that such generating act or sets shall not have been previously used in the State.****** ******" 32. The claim raised by the appellant under the above said notification was specifically dealt by the High Court and the Government. The condition which was found lacking for applicability of the notification was that generating sets were not purchased or installed or commissioned during the period from 01.01.1991 to 31.12.1992. The High Court has recorded categorical finding that the generating sets have been commissioned in the month of August 1995. It is useful to refer to paragraph 12.0 of the judgment of Division Bench which is to the following effect:- "12.0. Now, so far as the alternative claim of the appellants to grant the exemption for a period of 10 years under the Notification dated 27.02.1992 is concerned, on considering Notification dated 27.02.1992, it appears that the conditions precedent laid down in the said notification cannot be said to have been compiled by the appellants more particularly appellant No.1 - ESL. For claiming the benefit of notification dated 27.02.1992 it is to be established that the generating set or sets have been purchased/installed or commissioned during the period beginning from 01.01.1991 and ending on 31.12.1992. From the record it appears that the generating sets have been commissioned in the month of August 1995, the appellants have failed to establish that the generating sets were even purchased during the aforesaid period. It cannot be disputed that in a taxing statute more particularly with respect to the exemption from payment of duty, all the conditions which can be said to be statutory are required to be fulfilled and unless and until all the conditions stipulated in the exemption notification are satisfied and/or compiled with, there shall not be any exemption under the notification. In the present case, admittedly, the generating sets in question have been commissioned in the month of August 1995. The appellants have failed to establish that they even purchased the generating sets during the period beginning from 01.01.1991 to 31.12.1992. More placement of order for purchase cannot amount to actual purchase of the generating sets." 33. Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992.
### Response:
0
### Explanation:
12. From the facts which have come on the record it is clear that appellant no.1 had claimed exemption from duty under the provisions of Section 3(2)(vii) as well as under the notification issued under Section 3(3) of 1958 Act for different period which exemption was earlier granted. Details of benefit of exemption availed by appellant no.1 has been extracted by Division Bench of High Court in Para 5.4 of the judgment.13. In the present case, no application in the prescribed form as per Rule 11 of the Rules was filed by the appellant no.1 and for the first time the appellant had come up with an application dated 15.03.2001 seeking an exemption under notification dated 27.02.1992 and subsequently on 12.04.2001 has again claimed exemption under Section 3(2)(vii)(a) (i) of 1958 Act. The exemption from payment of duty as claimed by the appellant is in two parts. Firstly, under Section 3(2)(vii)(a)(i) of 1958 Act and secondly, under the notification dated 27.02.1992.In the present case, there is no dispute to the fact that appellant No.2 was created as a Special Purpose Vehicle by appellant No.1 itself. Had appellant No.2 would have been supplying energy to appellant No.1 only, the claim deserved consideration. But present is a case where the appellant no.2 is supplying energy to industrial undertakings with whom it is not jointly generating the energy. Judgment of this Court in State of U.P. and Renusagar Company, thus, has no application in the facts of present case.The judgment of Andhra Pradesh Gas Power Corporation Limited is clearly distinguishable and does not help the appellant in present case. In the aforesaid case the energy was utilized by the participating industries and the concerned holding shares of A.P.GPCL but supply of energy to the sister concerned was required to have license. Present is a case where Gujarat Electricity Board who has been allocated 300 MW is not a participating industry nor appellant no.2 is jointly generating the energy with Gujarat Electricity Board, even if it is held that the appellant no.1 to the extent it holds 42% equity shares of appellant no.2 is jointly generating the energy. The Gujarat Electricity Board which has been allocated 58% of electricity generated can not be said as the industrial undertaking jointly generating the energy.In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30.Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption.High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court.Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992.
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UNITED INDIA INSURANCE CO.LTD Vs. ANTIQUE ART EXPORTS PVT. LTD | inter-state sales or outside sales or sales in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying object is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liability sought to be imposed must be pertinent to that territorial connection: State of Bombay v.R.M.D. Chamarbaugwala [AIR 1957 SC 699 ], Tata Iron & Steel Co. Ltd. v. State of Bihar[(1958) SCR 1355] and International Tourist Corporation v. State of Haryana [(1981) 2 SCC 318] . The gross turnover of a dealer is taken into account in sub-section (1) of Section 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them. 11. This Court also noticed the economic superiority principle for the purpose of levy of turnover tax while holding that the interpretation of statute would not depend upon contingency. It is trite law which the Court would ordinary take recourse to golden rule of strict interpretation while interpreting taxing statutes. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation and this is what has been considered by this Court in Commissioner of Customs(Import), Mumbai Vs. Dilip Kumar and Company and Others 2018(9) SCC 1 in para 24 and 34 as under:- "24. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation. The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocents might become victims of discretionary decision-making. Insofar as taxation statutes are concerned, Article 265 of the Constitution prohibits the State from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to be interpreted strictly because the State cannot at their whims and fancies burden the citizens without authority of law. In other words, when the competent Legislature mandates taxing certain persons/certain objects in certain circumstances, it cannot be expanded/interpreted to include those, which were not intended by the legislature.34. The passages extracted above, were quoted with approval by this Court in at least two decisions being CIT v. Kasturi and Sons Ltd. (1999) 3 SCC 346 and State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201 (hereinafter referred to as ?Kesoram Industries case?, for brevity). In the later decision, a Bench of five Judges, after citing the above passage from Justice G.P. Singhs treatise, summed up the following principles applicable to the interpretation of a taxing statute:?(i) In interpreting a taxing statute, equitable considerations are entirely out of place. A taxing statute cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) Before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and(iii) If the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of the legislatures failure to express itself clearly.? 12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act.13. The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection.14. The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible.15. The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case.16. In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration. | 0[ds]12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act.13. The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection.14. The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible.15. The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case.16. In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration. | 0 | 3,347 | 399 | ### 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:
inter-state sales or outside sales or sales in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying object is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liability sought to be imposed must be pertinent to that territorial connection: State of Bombay v.R.M.D. Chamarbaugwala [AIR 1957 SC 699 ], Tata Iron & Steel Co. Ltd. v. State of Bihar[(1958) SCR 1355] and International Tourist Corporation v. State of Haryana [(1981) 2 SCC 318] . The gross turnover of a dealer is taken into account in sub-section (1) of Section 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them. 11. This Court also noticed the economic superiority principle for the purpose of levy of turnover tax while holding that the interpretation of statute would not depend upon contingency. It is trite law which the Court would ordinary take recourse to golden rule of strict interpretation while interpreting taxing statutes. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation and this is what has been considered by this Court in Commissioner of Customs(Import), Mumbai Vs. Dilip Kumar and Company and Others 2018(9) SCC 1 in para 24 and 34 as under:- "24. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation. The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocents might become victims of discretionary decision-making. Insofar as taxation statutes are concerned, Article 265 of the Constitution prohibits the State from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to be interpreted strictly because the State cannot at their whims and fancies burden the citizens without authority of law. In other words, when the competent Legislature mandates taxing certain persons/certain objects in certain circumstances, it cannot be expanded/interpreted to include those, which were not intended by the legislature.34. The passages extracted above, were quoted with approval by this Court in at least two decisions being CIT v. Kasturi and Sons Ltd. (1999) 3 SCC 346 and State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201 (hereinafter referred to as ?Kesoram Industries case?, for brevity). In the later decision, a Bench of five Judges, after citing the above passage from Justice G.P. Singhs treatise, summed up the following principles applicable to the interpretation of a taxing statute:?(i) In interpreting a taxing statute, equitable considerations are entirely out of place. A taxing statute cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) Before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and(iii) If the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of the legislatures failure to express itself clearly.? 12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act.13. The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection.14. The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible.15. The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case.16. In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration.
### Response:
0
### Explanation:
12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act.13. The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection.14. The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible.15. The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case.16. In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration.
|
Neppali Sai Vikash & Ors Vs. Union of India & Ors | data which has been placed on the record indicates that: (i) A significant proportion of seats which remain vacant are in pre-para subjects: these are teaching subjects where seats generally remain vacant; (ii) The current term is already behind schedule and a considered decision has been taken to the effect that holding another round of counselling would not be in the best academic interest of students; and (iii) As a result of a reduction of 15 percentile which was already made on 12 March 2022, another 25,000 candidates became eligible and it may not be in the best interest of medical education to effectuate a further reduction. 8. The counsel for the petitioners relied on the judgment of a two-Judge Bench of this Court in Harshit Agarwal v. Union of India (WP(C) 54 of 2021), where the petitioners had sought a direction to lower the minimum marks by 20 percentile in each category for NEET-UG 2020 for admission to the BDS course. Allowing the writ petition, the decision of the Central Government dated 30 December 2020 to not reduce the minimum marks for admission to the BDS course was set aside on the ground that it suffered from illegality and irrationality. This Court directed that the vacant seats in first year BDS course for 2020-21 were to be filled after reducing the percentile by 10 points. However, the circumstances were different in that case. The Dental Council of India had recommended the lowering of the qualifying cut-off percentile to the BDS courses for the year 2020-21. The petitioners then submitted a representation to the Union Government seeking a reduction in the qualifying percentile based on the recommendation of the Dental Council of India. Sub-Regulation (ii) of Regulation II of the Dental Council of India, Revised BDS Course Regulations 2007 stipulates that the Central Government in consultation with the Dental Council of India may at its discretion, lower the minimum marks required for admission if a sufficient number of candidates fail to secure the minimum marks. This Court in that case was deciding on the limited question of whether the decision of the Union Government to not reduce the percentile in spite of the recommendations of the Dental Council of India was arbitrary. It was observed that the contention of the Union of India that the percentile was not reduced because there were sufficient eligible candidates was erroneous since it had not considered vital facts on the ratio of seats available vis-à-vis eligible candidates: 11. The stand of the Central Government is that there are seven candidates available for each seat and, therefore, there is no need to lower the minimum marks. This calculation of the first Respondent is without taking into account the fact that NEET (UG) 2020 is conducted for admission into different courses like MBBS, BDS, UG AYUSH and other medical courses. Admissions for UG AYUSH and other UG medical courses are included in the NEET for the first time from this year. That apart, it is clear from the letter of the Dental Council of India that NEET has been made mandatory for admission to AIIMS and AIIMS like institutions and ZIPMER. Hitherto, AIIMS and AIIMS like institutions and other institutions like ZIPMER were conducting their own separate entrance test. The total number of seats available for the academic year 2020-2021 for MBBS are 91,367, BDS are 26,949 and AYUSH are 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates are 7,71,500. The ratio of seats available vis-à-vis eligible students is 1 : 4.5 and not 7. The basis for the decision to not reduce minimum marks that there are sufficient eligible candidates is without considering the above vital facts. The decision which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law4. The decision of the first respondent was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters. There is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. 9. The proviso to Regulation 9(3) of the Post-Graduate Medical Education Regulations 2000 stipulates that the Central Government has the power to lower the minimum marks for admission to PG courses in consultation with the National Medical Commission when a sufficient number of candidates fail to secure minimum marks. On 12 March 2020, the Central Government in exercise of this power reduced the minimum marks in consultation with the National Medical Commission. After the stray rounds were conducted on the reduction in the percentile, only 282 seats are left vacant. The Union of India has taken a considered decision to not reduce the minimum marks further. As submitted by the respondent, the vacancy in the seats does not arise from non-fulfillment of minimum marks but also from course preferences and college preferences of the students. This Court would not be inclined to interfere unless there is a manifest arbitrariness in the decision making process or in the decision. There is no arbitrariness here. Responding to the vacancies, the Union Government took a decision after due consideration, of reducing the percentile by 15. This Court would not be justified in the exercise of the power of judicial review to direct a further reduction of 5 percentile since that would be trenching upon the academic/policy domain. The need for filling up vacant seats, which undoubtedly is a matter of public interest has to be balanced with other considerations such as ensuring that the batch of admitted students commences the course, the standards of medical education are not diluted and uncertainty is not created by ad-hoc reductions in the norms of eligibility. | 0[ds]6. The above statement indicates that initially 92,000 candidates were eligible for counselling for nearly 40,000 seats which were available for the post graduate courses. After the lowering of the percentile, 25,000 more candidates became eligible. A total of 6,206 seats were available in the mop up round and after 4,747 candidates joined, 1,459 seats remained vacant. In the stray round, out of 1,459 seats, 1,177 seats have been allotted, leaving 282 seats vacant. This data is for the all-India quota. The results are to be declared on 2 May 2022 and the last date for reporting is 7 May 2022.7. The data which has been placed on the record indicates that:(i) A significant proportion of seats which remain vacant are in pre-para subjects: these are teaching subjects where seats generally remain vacant;(ii) The current term is already behind schedule and a considered decision has been taken to the effect that holding another round of counselling would not be in the best academic interest of students; and(iii) As a result of a reduction of 15 percentile which was already made on 12 March 2022, another 25,000 candidates became eligible and it may not be in the best interest of medical education to effectuate a further reduction.8. The counsel for the petitioners relied on the judgment of a two-Judge Bench of this Court in Harshit Agarwal v. Union of India (WP(C) 54 of 2021), where the petitioners had sought a direction to lower the minimum marks by 20 percentile in each category for NEET-UG 2020 for admission to the BDS course. Allowing the writ petition, the decision of the Central Government dated 30 December 2020 to not reduce the minimum marks for admission to the BDS course was set aside on the ground that it suffered from illegality and irrationality. This Court directed that the vacant seats in first year BDS course for 2020-21 were to be filled after reducing the percentile by 10 points. However, the circumstances were different in that case. The Dental Council of India had recommended the lowering of the qualifying cut-off percentile to the BDS courses for the year 2020-21. The petitioners then submitted a representation to the Union Government seeking a reduction in the qualifying percentile based on the recommendation of the Dental Council of India. Sub-Regulation (ii) of Regulation II of the Dental Council of India, Revised BDS Course Regulations 2007 stipulates that the Central Government in consultation with the Dental Council of India may at its discretion, lower the minimum marks required for admission if a sufficient number of candidates fail to secure the minimum marks. This Court in that case was deciding on the limited question of whether the decision of the Union Government to not reduce the percentile in spite of the recommendations of the Dental Council of India was arbitrary. It was observed that the contention of the Union of India that the percentile was not reduced because there were sufficient eligible candidates was erroneous since it had not considered vital facts on the ratio of seats available vis-à-vis eligible candidates:11. The stand of the Central Government is that there are seven candidates available for each seat and, therefore, there is no need to lower the minimum marks. This calculation of the first Respondent is without taking into account the fact that NEET (UG) 2020 is conducted for admission into different courses like MBBS, BDS, UG AYUSH and other medical courses. Admissions for UG AYUSH and other UG medical courses are included in the NEET for the first time from this year. That apart, it is clear from the letter of the Dental Council of India that NEET has been made mandatory for admission to AIIMS and AIIMS like institutions and ZIPMER. Hitherto, AIIMS and AIIMS like institutions and other institutions like ZIPMER were conducting their own separate entrance test. The total number of seats available for the academic year 2020-2021 for MBBS are 91,367, BDS are 26,949 and AYUSH are 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates are 7,71,500. The ratio of seats available vis-à-vis eligible students is 1 : 4.5 and not 7. The basis for the decision to not reduce minimum marks that there are sufficient eligible candidates is without considering the above vital facts. The decision which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law4. The decision of the first respondent was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters. There is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.9. The proviso to Regulation 9(3) of the Post-Graduate Medical Education Regulations 2000 stipulates that the Central Government has the power to lower the minimum marks for admission to PG courses in consultation with the National Medical Commission when a sufficient number of candidates fail to secure minimum marks. On 12 March 2020, the Central Government in exercise of this power reduced the minimum marks in consultation with the National Medical Commission. After the stray rounds were conducted on the reduction in the percentile, only 282 seats are left vacant. The Union of India has taken a considered decision to not reduce the minimum marks further. As submitted by the respondent, the vacancy in the seats does not arise from non-fulfillment of minimum marks but also from course preferences and college preferences of the students. This Court would not be inclined to interfere unless there is a manifest arbitrariness in the decision making process or in the decision. There is no arbitrariness here. Responding to the vacancies, the Union Government took a decision after due consideration, of reducing the percentile by 15. This Court would not be justified in the exercise of the power of judicial review to direct a further reduction of 5 percentile since that would be trenching upon the academic/policy domain. The need for filling up vacant seats, which undoubtedly is a matter of public interest has to be balanced with other considerations such as ensuring that the batch of admitted students commences the course, the standards of medical education are not diluted and uncertainty is not created by ad-hoc reductions in the norms of eligibility. | 0 | 1,820 | 1,194 | ### 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:
data which has been placed on the record indicates that: (i) A significant proportion of seats which remain vacant are in pre-para subjects: these are teaching subjects where seats generally remain vacant; (ii) The current term is already behind schedule and a considered decision has been taken to the effect that holding another round of counselling would not be in the best academic interest of students; and (iii) As a result of a reduction of 15 percentile which was already made on 12 March 2022, another 25,000 candidates became eligible and it may not be in the best interest of medical education to effectuate a further reduction. 8. The counsel for the petitioners relied on the judgment of a two-Judge Bench of this Court in Harshit Agarwal v. Union of India (WP(C) 54 of 2021), where the petitioners had sought a direction to lower the minimum marks by 20 percentile in each category for NEET-UG 2020 for admission to the BDS course. Allowing the writ petition, the decision of the Central Government dated 30 December 2020 to not reduce the minimum marks for admission to the BDS course was set aside on the ground that it suffered from illegality and irrationality. This Court directed that the vacant seats in first year BDS course for 2020-21 were to be filled after reducing the percentile by 10 points. However, the circumstances were different in that case. The Dental Council of India had recommended the lowering of the qualifying cut-off percentile to the BDS courses for the year 2020-21. The petitioners then submitted a representation to the Union Government seeking a reduction in the qualifying percentile based on the recommendation of the Dental Council of India. Sub-Regulation (ii) of Regulation II of the Dental Council of India, Revised BDS Course Regulations 2007 stipulates that the Central Government in consultation with the Dental Council of India may at its discretion, lower the minimum marks required for admission if a sufficient number of candidates fail to secure the minimum marks. This Court in that case was deciding on the limited question of whether the decision of the Union Government to not reduce the percentile in spite of the recommendations of the Dental Council of India was arbitrary. It was observed that the contention of the Union of India that the percentile was not reduced because there were sufficient eligible candidates was erroneous since it had not considered vital facts on the ratio of seats available vis-à-vis eligible candidates: 11. The stand of the Central Government is that there are seven candidates available for each seat and, therefore, there is no need to lower the minimum marks. This calculation of the first Respondent is without taking into account the fact that NEET (UG) 2020 is conducted for admission into different courses like MBBS, BDS, UG AYUSH and other medical courses. Admissions for UG AYUSH and other UG medical courses are included in the NEET for the first time from this year. That apart, it is clear from the letter of the Dental Council of India that NEET has been made mandatory for admission to AIIMS and AIIMS like institutions and ZIPMER. Hitherto, AIIMS and AIIMS like institutions and other institutions like ZIPMER were conducting their own separate entrance test. The total number of seats available for the academic year 2020-2021 for MBBS are 91,367, BDS are 26,949 and AYUSH are 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates are 7,71,500. The ratio of seats available vis-à-vis eligible students is 1 : 4.5 and not 7. The basis for the decision to not reduce minimum marks that there are sufficient eligible candidates is without considering the above vital facts. The decision which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law4. The decision of the first respondent was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters. There is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. 9. The proviso to Regulation 9(3) of the Post-Graduate Medical Education Regulations 2000 stipulates that the Central Government has the power to lower the minimum marks for admission to PG courses in consultation with the National Medical Commission when a sufficient number of candidates fail to secure minimum marks. On 12 March 2020, the Central Government in exercise of this power reduced the minimum marks in consultation with the National Medical Commission. After the stray rounds were conducted on the reduction in the percentile, only 282 seats are left vacant. The Union of India has taken a considered decision to not reduce the minimum marks further. As submitted by the respondent, the vacancy in the seats does not arise from non-fulfillment of minimum marks but also from course preferences and college preferences of the students. This Court would not be inclined to interfere unless there is a manifest arbitrariness in the decision making process or in the decision. There is no arbitrariness here. Responding to the vacancies, the Union Government took a decision after due consideration, of reducing the percentile by 15. This Court would not be justified in the exercise of the power of judicial review to direct a further reduction of 5 percentile since that would be trenching upon the academic/policy domain. The need for filling up vacant seats, which undoubtedly is a matter of public interest has to be balanced with other considerations such as ensuring that the batch of admitted students commences the course, the standards of medical education are not diluted and uncertainty is not created by ad-hoc reductions in the norms of eligibility.
### Response:
0
### Explanation:
reporting is 7 May 2022.7. The data which has been placed on the record indicates that:(i) A significant proportion of seats which remain vacant are in pre-para subjects: these are teaching subjects where seats generally remain vacant;(ii) The current term is already behind schedule and a considered decision has been taken to the effect that holding another round of counselling would not be in the best academic interest of students; and(iii) As a result of a reduction of 15 percentile which was already made on 12 March 2022, another 25,000 candidates became eligible and it may not be in the best interest of medical education to effectuate a further reduction.8. The counsel for the petitioners relied on the judgment of a two-Judge Bench of this Court in Harshit Agarwal v. Union of India (WP(C) 54 of 2021), where the petitioners had sought a direction to lower the minimum marks by 20 percentile in each category for NEET-UG 2020 for admission to the BDS course. Allowing the writ petition, the decision of the Central Government dated 30 December 2020 to not reduce the minimum marks for admission to the BDS course was set aside on the ground that it suffered from illegality and irrationality. This Court directed that the vacant seats in first year BDS course for 2020-21 were to be filled after reducing the percentile by 10 points. However, the circumstances were different in that case. The Dental Council of India had recommended the lowering of the qualifying cut-off percentile to the BDS courses for the year 2020-21. The petitioners then submitted a representation to the Union Government seeking a reduction in the qualifying percentile based on the recommendation of the Dental Council of India. Sub-Regulation (ii) of Regulation II of the Dental Council of India, Revised BDS Course Regulations 2007 stipulates that the Central Government in consultation with the Dental Council of India may at its discretion, lower the minimum marks required for admission if a sufficient number of candidates fail to secure the minimum marks. This Court in that case was deciding on the limited question of whether the decision of the Union Government to not reduce the percentile in spite of the recommendations of the Dental Council of India was arbitrary. It was observed that the contention of the Union of India that the percentile was not reduced because there were sufficient eligible candidates was erroneous since it had not considered vital facts on the ratio of seats available vis-à-vis eligible candidates:11. The stand of the Central Government is that there are seven candidates available for each seat and, therefore, there is no need to lower the minimum marks. This calculation of the first Respondent is without taking into account the fact that NEET (UG) 2020 is conducted for admission into different courses like MBBS, BDS, UG AYUSH and other medical courses. Admissions for UG AYUSH and other UG medical courses are included in the NEET for the first time from this year. That apart, it is clear from the letter of the Dental Council of India that NEET has been made mandatory for admission to AIIMS and AIIMS like institutions and ZIPMER. Hitherto, AIIMS and AIIMS like institutions and other institutions like ZIPMER were conducting their own separate entrance test. The total number of seats available for the academic year 2020-2021 for MBBS are 91,367, BDS are 26,949 and AYUSH are 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates are 7,71,500. The ratio of seats available vis-à-vis eligible students is 1 : 4.5 and not 7. The basis for the decision to not reduce minimum marks that there are sufficient eligible candidates is without considering the above vital facts. The decision which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law4. The decision of the first respondent was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters. There is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.9. The proviso to Regulation 9(3) of the Post-Graduate Medical Education Regulations 2000 stipulates that the Central Government has the power to lower the minimum marks for admission to PG courses in consultation with the National Medical Commission when a sufficient number of candidates fail to secure minimum marks. On 12 March 2020, the Central Government in exercise of this power reduced the minimum marks in consultation with the National Medical Commission. After the stray rounds were conducted on the reduction in the percentile, only 282 seats are left vacant. The Union of India has taken a considered decision to not reduce the minimum marks further. As submitted by the respondent, the vacancy in the seats does not arise from non-fulfillment of minimum marks but also from course preferences and college preferences of the students. This Court would not be inclined to interfere unless there is a manifest arbitrariness in the decision making process or in the decision. There is no arbitrariness here. Responding to the vacancies, the Union Government took a decision after due consideration, of reducing the percentile by 15. This Court would not be justified in the exercise of the power of judicial review to direct a further reduction of 5 percentile since that would be trenching upon the academic/policy domain. The need for filling up vacant seats, which undoubtedly is a matter of public interest has to be balanced with other considerations such as ensuring that the batch of admitted students commences the course, the standards of medical education are not diluted and uncertainty is not created by ad-hoc reductions in the norms of eligibility.
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Commissioner of Income Tax, Bihar and Orissa Vs. Banwari Lal Agarwal | the income of the appellant was made.4. Before an assessment can be said to be validly made under section 34, two distinct conditions relating to limitation must be satisfied: under sub-section (1) a notice for initiating proceedings for assessment or reassessment must be served within the period prescribed by clauses (a) and (b); and assessment and reassessment must be completed within the period of limitation prescribed in sub-section (3)Notice to the assessee of assessment under section 34(1)(a) was issued on July 24, 1957, i.e., after the expiry of eight years prescribed by section 34(1)(a). Sub-section (3) of section 34 as it stood in 1957 when the notice of assessment was served provided (in so far as it is relevant) that"No order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1)...of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable.Provided further that nothing contained in this section...shall apply to...an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A."5. It was held by this court in K. C. Thomass case that proviso (ii) to sub-section (3) was an exception to the entire section. Therefore, to an order of assessment or reassessment of the income of the assessee or any person in consequence of or to give effect to any finding or direction contained, inter alia, in an order of the Appellate Assistant Commissioner or the Tribunal, the periods of limitation contained in sub-section (1) and sub-section (3) shall not apply, i.e., the requirements as to service of notice within the period of limitation prescribed under sub-section (1) shall not apply nor shall the assessment be required to be completed within the period prescribed in the substantive part of sub-section (3).6. In the present case the Appellate Assistant Commissioner gave direction for assessment of the income of the assessee which had escaped assessment. Sanction of the Commissioner was also obtained in that behalf. But the assessee was not a party to the assessment proceeding. He was a person other than the assessee. Whereas, in K. C. Thomass case an order for reassessment of income was made against the original assessee, in the case in hand assessment is directed against a person other than the assessee in appeal in which the direction was made. If under sub-section (3) of section 34 the assessment has to be completed within the period prescribed thereby and the time is not extended, competence to issue the notice under section 34(1)(a) will not save the order of assessment. Before the Tribunal and the High Court this question was not raised. The Tribunal and the High Court followed the judgment in Hiralal Amritlal Shahs case and held that a notice of assessment or reassessment under section 34(1)(a) cannot be served against the assessee beyond the period of eight years from the last day of the year of assessment This court took a different view holding that the second proviso to section 34(3) applied to notices under section 34(1)(a) as wellThis court in S. C. Prashar v. Vasantsen Dwarkadas held that the second proviso to section 34(3) of the Income-tax Act, 1922, in so far as it authorises the assessment or reassessment of any person other than the assessee after the expiry of the periods of limitation specified in section 34 in consequence of or to give effect to a finding or direction given in an appeal, revision or reference arising out of proceedings in relation to the assessee violates article 14 of the Constitution of India and is invalid to that extent. In Income-tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan Das, this court observed that the expressions "finding" and "direction" in the second proviso to section 34(3) mean, respectively, a finding necessary for giving relief in respect of the assessment for the year in question, and a direction which the appellate or revisional authority, as the case may be, is empowered to give under the sections mentioned in that proviso. The court observed that the expression "any person" in the second proviso to section 34(3) referred to one who would be liable to be assessed for the whole or a part of the income that went into the assessment of the year under appeal or revision. In Murlidhar Bhagwan Dass case no reference was made by the majority of the judges to the judgment in S. C. Prashars case. In the Estate of Late Rangalal Jajodia v. Commissioner of Income-tax this court held that the expression "any person" in section 34(3), proviso 2, is a person intimately connected with the assessment. The court in that case cited with approval the observations in Murlidhar Bhagwan Dass case.7. The real dispute between the assessee and the department in this case is not whether the notice under section 34(1)(a) was valid, but whether it is open to the Income-tax Officer to commence a proceeding for assessment pursuant to a direction given by the Appellate Assistant Commissioner after expiry of the period of limitation prescribed by sub-section (3). On that part of the case, no question is raised. Counsel for fhe Commissioner has fairly conceded that the question referred does not bring oat the only plea on a favourable decision on which the department may bring to tax the income which had escaped assessment. Counsel conceded that the question whether by virtue of the second proviso to sub-section (3) of section 34 the assessment could, in the circumstances of the case, be completed outside the bar of that sub-section was not argued and not even raised before the Tribunal or before the High Court. | 0[ds]In the present case the Appellate Assistant Commissioner gave direction for assessment of the income of the assessee which had escaped assessment. Sanction of the Commissioner was also obtained in that behalf. But the assessee was not a party to the assessment proceeding. He was a person other than the assessee. Whereas, in K. C. Thomass case an order for reassessment of income was made against the original assessee, in the case in hand assessment is directed against a person other than the assessee in appeal in which the direction wasreal dispute between the assessee and the department in this case is not whether the notice under section 34(1)(a) was valid, but whether it is open to theOfficer to commence a proceeding for assessment pursuant to a direction given by the Appellate Assistant Commissioner after expiry of the period of limitation prescribed by(3). On that part of the case, no question is raised. Counsel for fhe Commissioner has fairly conceded that the question referred does not bring oat the only plea on a favourable decision on which the department may bring to tax the income which had escaped assessment. Counsel conceded that the question whether by virtue of the second proviso to(3) of section 34 the assessment could, in the circumstances of the case, be completed outside the bar of thatwas not argued and not even raised before the Tribunal or before the High Court. | 0 | 1,868 | 265 | ### 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:
the income of the appellant was made.4. Before an assessment can be said to be validly made under section 34, two distinct conditions relating to limitation must be satisfied: under sub-section (1) a notice for initiating proceedings for assessment or reassessment must be served within the period prescribed by clauses (a) and (b); and assessment and reassessment must be completed within the period of limitation prescribed in sub-section (3)Notice to the assessee of assessment under section 34(1)(a) was issued on July 24, 1957, i.e., after the expiry of eight years prescribed by section 34(1)(a). Sub-section (3) of section 34 as it stood in 1957 when the notice of assessment was served provided (in so far as it is relevant) that"No order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1)...of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable.Provided further that nothing contained in this section...shall apply to...an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A."5. It was held by this court in K. C. Thomass case that proviso (ii) to sub-section (3) was an exception to the entire section. Therefore, to an order of assessment or reassessment of the income of the assessee or any person in consequence of or to give effect to any finding or direction contained, inter alia, in an order of the Appellate Assistant Commissioner or the Tribunal, the periods of limitation contained in sub-section (1) and sub-section (3) shall not apply, i.e., the requirements as to service of notice within the period of limitation prescribed under sub-section (1) shall not apply nor shall the assessment be required to be completed within the period prescribed in the substantive part of sub-section (3).6. In the present case the Appellate Assistant Commissioner gave direction for assessment of the income of the assessee which had escaped assessment. Sanction of the Commissioner was also obtained in that behalf. But the assessee was not a party to the assessment proceeding. He was a person other than the assessee. Whereas, in K. C. Thomass case an order for reassessment of income was made against the original assessee, in the case in hand assessment is directed against a person other than the assessee in appeal in which the direction was made. If under sub-section (3) of section 34 the assessment has to be completed within the period prescribed thereby and the time is not extended, competence to issue the notice under section 34(1)(a) will not save the order of assessment. Before the Tribunal and the High Court this question was not raised. The Tribunal and the High Court followed the judgment in Hiralal Amritlal Shahs case and held that a notice of assessment or reassessment under section 34(1)(a) cannot be served against the assessee beyond the period of eight years from the last day of the year of assessment This court took a different view holding that the second proviso to section 34(3) applied to notices under section 34(1)(a) as wellThis court in S. C. Prashar v. Vasantsen Dwarkadas held that the second proviso to section 34(3) of the Income-tax Act, 1922, in so far as it authorises the assessment or reassessment of any person other than the assessee after the expiry of the periods of limitation specified in section 34 in consequence of or to give effect to a finding or direction given in an appeal, revision or reference arising out of proceedings in relation to the assessee violates article 14 of the Constitution of India and is invalid to that extent. In Income-tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan Das, this court observed that the expressions "finding" and "direction" in the second proviso to section 34(3) mean, respectively, a finding necessary for giving relief in respect of the assessment for the year in question, and a direction which the appellate or revisional authority, as the case may be, is empowered to give under the sections mentioned in that proviso. The court observed that the expression "any person" in the second proviso to section 34(3) referred to one who would be liable to be assessed for the whole or a part of the income that went into the assessment of the year under appeal or revision. In Murlidhar Bhagwan Dass case no reference was made by the majority of the judges to the judgment in S. C. Prashars case. In the Estate of Late Rangalal Jajodia v. Commissioner of Income-tax this court held that the expression "any person" in section 34(3), proviso 2, is a person intimately connected with the assessment. The court in that case cited with approval the observations in Murlidhar Bhagwan Dass case.7. The real dispute between the assessee and the department in this case is not whether the notice under section 34(1)(a) was valid, but whether it is open to the Income-tax Officer to commence a proceeding for assessment pursuant to a direction given by the Appellate Assistant Commissioner after expiry of the period of limitation prescribed by sub-section (3). On that part of the case, no question is raised. Counsel for fhe Commissioner has fairly conceded that the question referred does not bring oat the only plea on a favourable decision on which the department may bring to tax the income which had escaped assessment. Counsel conceded that the question whether by virtue of the second proviso to sub-section (3) of section 34 the assessment could, in the circumstances of the case, be completed outside the bar of that sub-section was not argued and not even raised before the Tribunal or before the High Court.
### Response:
0
### Explanation:
In the present case the Appellate Assistant Commissioner gave direction for assessment of the income of the assessee which had escaped assessment. Sanction of the Commissioner was also obtained in that behalf. But the assessee was not a party to the assessment proceeding. He was a person other than the assessee. Whereas, in K. C. Thomass case an order for reassessment of income was made against the original assessee, in the case in hand assessment is directed against a person other than the assessee in appeal in which the direction wasreal dispute between the assessee and the department in this case is not whether the notice under section 34(1)(a) was valid, but whether it is open to theOfficer to commence a proceeding for assessment pursuant to a direction given by the Appellate Assistant Commissioner after expiry of the period of limitation prescribed by(3). On that part of the case, no question is raised. Counsel for fhe Commissioner has fairly conceded that the question referred does not bring oat the only plea on a favourable decision on which the department may bring to tax the income which had escaped assessment. Counsel conceded that the question whether by virtue of the second proviso to(3) of section 34 the assessment could, in the circumstances of the case, be completed outside the bar of thatwas not argued and not even raised before the Tribunal or before the High Court.
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S. K. Gupta & Anr Vs. K. P. Jain & Anr | The scheme in this case is one by which a compromise is offered to the unse-cured creditors of the company and whoever comes in as sponsor would be bound by it. Undoubtedly a sponsor of the scheme enjoys an important place in the scheme of compromise and/or arrangement but basically the scheme is between the company and its creditors or any class of them, or the company and its members or any class of them, and not between the sponsor of the scheme and the creditor or member. The scheme represents a contract sanctified by Court?s approval between the company and the creditors and/or members of the company. The company may as well be in charge of directors and the implementation of the scheme may come through the agency of directors but that would not lead to the conclusion that during the working of the scheme the directors cannot be changed. If the scheme has to be ultimately implemented by the company as part of its contract and yet its directors can be changed according to its Articles of Association, we see no difference in the situation where a sponsor is required to be changed in the facts and circumstances of a case. Therefore, it is not possible to accept the submission that as and by way of modification one sponsor of a scheme cannot be substituted for another sponsor. 28. We may not be understood to say for a moment that the Court can appoint any one as sponsor. The Court on which a duty is cast by Section 392 (1) to exercise continuous supervision over the working of the compro-mise and/or arrangement must, in order to effective discharge its duty, examine the bona fides of the person applying to be substituted as sponsor, his capacity, his ability, his interest qua the company and other relevant considerations below substituting one sponsor for another. In a given case an application may be rejected as the Court is of the opinion that the sponsor is not one who can be trusted with the implementation of the scheme but that is entirely a different thing from a saying that the Court has no power to make such a substitution as and by way of modification of a compromise or arrangement. 29. Now to the facts of the case. The appellants have applied for substituting them as sponsors of the scheme in place of DFM. They claim to have purchased 44,000 shares out of 80,000 issued and subscribed equity shares of the company. As stated earlier, between the transferor and trans-feree of the shares, the transfer of the shares is complete and not even seriously objected to by the respondent as pointed out herein before. The sponsor has taken an assignment of a debt of Rs. 23 lacs which IHI owed to DFM from the creditor DFM. Again, as between the transferor and transferee the assignment is complete. The only objector is respondent holding l,000 equity shares representing 1.25 per cent of the issued and subscribed capital. An advertisement was directed to be inserted by the order of the Court in newspapers in respect of the application for substitu-tion/modification made by the appellants inviting every one interested in the company or in the scheme of compromise and/or arrangement or to come and lodge objection, if it was so desired, against substitution/modification prayed by the appellants. None including the petitioning creditor except the respondent Jain has lodged such an objection. This procedure was also followed by the Gujarat High Court in Mansukhlal?s (2) case and by referring to that part of the judgment, the High Court held that judgment itself is an authority for the proposition that substitution of the sponsor is a vital change of a basic nature and cannot be ordered by the Court acting under Section 392 and must be referred to a meeting of the creditors or members. With respect this is not a fair reading of the judgment. At pages 290-291, the scope and ambit of the power of the Court under Section 392 has been precisely set out and it is concluded that the power to modify would comprehend the power to substitute one sponsor for the other if he is found otherwise fit and competent. As an additional string to the bow, it was observed, as it is being done here also that no one has come forward to object to the substi-tution and that would further strengthen the hands of the Court. Such observation cannot be construed to mean that the Court lacks the power to make such a modification without reference back to the creditors and/or members, as the case may be. In the background of these unimpeachable acts the conclusion is inescapable that the appellants have a subsisting and vital interest in the fate and future of IHI and they are the appropriate persons who could and should be substituted in place of the original sponsor. 30. In passing it was said that the fate of the company should not be placed in the hands of the appellants and the lack of bona fides of the appellants become discernible from the fact that they tooth and nail oppo-sed the very scheme which they now seek to implement. This is hardly a relevant consideration. A creditor may come and oppose a scheme being implemented by some person and yet may be interested in taking over the affairs of the company. This could hardly be treated as a disqualification of the appellants. 31. Lastly it may be mentioned that the appellants agree to imple-ment the scheme. They undertake to bring Rs. 3 lacs as liquid finance for implementing the scheme. The question of the know how was examined by the company Judge who has accepted their fitness to run the business and nothing was pointed out to us to depart from the same. Therefore, viewed from any angle, we see no objection to granting the application of the appellants for substitution/modification as sponsors of the scheme. | 1[ds]11. The High Court was of the opinion that the appellants have no locus standi to maintain an application for modification/substitution of them-selves as proponents of the scheme with a liability to implement the scheme as they were neither members nor creditors of the Company and according to the High Court, if a scheme of compromise or arrangement cannot be proposed by any one except a member or creditor, ipso facto, an appli-cation for modification of such scheme sanctioned by the Court under Section 391 (2) could not be made by any one other than a member or a creditor20. The stand taken by respondent Jain in this behalf is wholly ambi-valent21. In the aforementioned circumstances we are not inclined to examine a very serious contention raised by Mr. Mridul who appeared at a later stage of hearing for the respondent Jain that unless names, of the appel-lants are put on the register of IHI they do not become members and as the assignments on which the appellants rely does not comply with the require-ments of Section 130 of the Transfer of Property Act, the assignee?s title to the debt assigned has not become complete, and, therefore, the appellants are not creditors of IHI. We may in passing say that the factum of assignment or the sale of shares was never seriously questioned but we are prepared to proceed on the assumption that even if it be so, in the circumstances herein discussed and the ambivalence of respondent Jain the appellants could certainly be said to be persons sufficiently interested both in the company IHI and the scheme in respect of it so as to be able to maintain an appelition under Section 392 (1)22. Lastly in this connection it must be remembered that if DFM whose scheme was sanctioned and not challenged by respondent Jain, started implementing the scheme and after getting into the saddle by constituting the Board of Directors as desired by it, it could have transferred its shares to appellants and appellants could have as well taken over management and implemented the scheme and so one, at any rate, respondent Jain holding only 1000 equity shares i.e. 1.25% of the issued capital, could have objected to it. The objection at this stage is equally futile. Therefore, with respect, the High Court was in error in holding that the appellants had no locus standi to maintain an application under Section (392) (1)29. Now to the facts of the case. The appellants have applied for substituting them as sponsors of the scheme in place of DFM. They claim to have purchased 44,000 shares out of 80,000 issued and subscribed equity shares of thecompany.As stated earlier, between the transferor and trans-feree of the shares, the transfer of the shares is complete and not even seriously objected to by the respondent as pointed out herein before. The sponsor has taken an assignment of a debt of Rs. 23 lacs which IHI owed to DFM from the creditor DFM. Again, as between the transferor and transferee the assignment is complete. The only objector is respondent holding l,000 equity shares representing 1.25 per cent of the issued and subscribed capital. An advertisement was directed to be inserted by the order of the Court in newspapers in respect of the application for substitu-tion/modification made by the appellants inviting every one interested in the company or in the scheme of compromise and/or arrangement or to come and lodge objection, if it was so desired, against substitution/modification prayed by the appellants. None including the petitioning creditor except the respondent Jain has lodged such an objection. This procedure was also followed by the Gujarat High Court in Mansukhlal?s (2) case and by referring to that part of the judgment, the High Court held that judgment itself is an authority for the proposition that substitution of the sponsor is a vital change of a basic nature and cannot be ordered by the Court acting under Section 392 and must be referred to a meeting of the creditors or members. With respect this is not a fair reading of the judgment. At pages, the scope and ambit of the power of the Court under Section 392 has been precisely set out and it is concluded that the power to modify would comprehend the power to substitute one sponsor for the other if he is found otherwise fit and competent. As an additional string to the bow, it was observed, as it is being done here also that no one has come forward to object to the substi-tution and that would further strengthen the hands of the Court. Such observation cannot be construed to mean that the Court lacks the power to make such a modification without reference back to the creditors and/or members, as the case may be. In the background of these unimpeachable acts the conclusion is inescapable that the appellants have a subsisting and vital interest in the fate and future of IHI and they are the appropriate persons who could and should be substituted in place of the original sponsor30. In passing it was said that the fate of the company should not be placed in the hands of the appellants and the lack of bona fides of the appellants become discernible from the fact that they tooth and nail oppo-sed the very scheme which they now seek to implement. This is hardly a relevant consideration. A creditor may come and oppose a scheme being implemented by some person and yet may be interested in taking over the affairs of thecompany.This could hardly be treated as a disqualification of the appellants31. Lastly it may be mentioned that the appellants agree to imple-ment the scheme. They undertake to bring Rs. 3 lacs as liquid finance for implementing the scheme. The question of the know how was examined by the company Judge who has accepted their fitness to run the business and nothing was pointed out to us to depart from the same. Therefore, viewed from any angle, we see no objection to granting the application of the appellants for substitution/modification as sponsors of the scheme. | 1 | 8,581 | 1,103 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
The scheme in this case is one by which a compromise is offered to the unse-cured creditors of the company and whoever comes in as sponsor would be bound by it. Undoubtedly a sponsor of the scheme enjoys an important place in the scheme of compromise and/or arrangement but basically the scheme is between the company and its creditors or any class of them, or the company and its members or any class of them, and not between the sponsor of the scheme and the creditor or member. The scheme represents a contract sanctified by Court?s approval between the company and the creditors and/or members of the company. The company may as well be in charge of directors and the implementation of the scheme may come through the agency of directors but that would not lead to the conclusion that during the working of the scheme the directors cannot be changed. If the scheme has to be ultimately implemented by the company as part of its contract and yet its directors can be changed according to its Articles of Association, we see no difference in the situation where a sponsor is required to be changed in the facts and circumstances of a case. Therefore, it is not possible to accept the submission that as and by way of modification one sponsor of a scheme cannot be substituted for another sponsor. 28. We may not be understood to say for a moment that the Court can appoint any one as sponsor. The Court on which a duty is cast by Section 392 (1) to exercise continuous supervision over the working of the compro-mise and/or arrangement must, in order to effective discharge its duty, examine the bona fides of the person applying to be substituted as sponsor, his capacity, his ability, his interest qua the company and other relevant considerations below substituting one sponsor for another. In a given case an application may be rejected as the Court is of the opinion that the sponsor is not one who can be trusted with the implementation of the scheme but that is entirely a different thing from a saying that the Court has no power to make such a substitution as and by way of modification of a compromise or arrangement. 29. Now to the facts of the case. The appellants have applied for substituting them as sponsors of the scheme in place of DFM. They claim to have purchased 44,000 shares out of 80,000 issued and subscribed equity shares of the company. As stated earlier, between the transferor and trans-feree of the shares, the transfer of the shares is complete and not even seriously objected to by the respondent as pointed out herein before. The sponsor has taken an assignment of a debt of Rs. 23 lacs which IHI owed to DFM from the creditor DFM. Again, as between the transferor and transferee the assignment is complete. The only objector is respondent holding l,000 equity shares representing 1.25 per cent of the issued and subscribed capital. An advertisement was directed to be inserted by the order of the Court in newspapers in respect of the application for substitu-tion/modification made by the appellants inviting every one interested in the company or in the scheme of compromise and/or arrangement or to come and lodge objection, if it was so desired, against substitution/modification prayed by the appellants. None including the petitioning creditor except the respondent Jain has lodged such an objection. This procedure was also followed by the Gujarat High Court in Mansukhlal?s (2) case and by referring to that part of the judgment, the High Court held that judgment itself is an authority for the proposition that substitution of the sponsor is a vital change of a basic nature and cannot be ordered by the Court acting under Section 392 and must be referred to a meeting of the creditors or members. With respect this is not a fair reading of the judgment. At pages 290-291, the scope and ambit of the power of the Court under Section 392 has been precisely set out and it is concluded that the power to modify would comprehend the power to substitute one sponsor for the other if he is found otherwise fit and competent. As an additional string to the bow, it was observed, as it is being done here also that no one has come forward to object to the substi-tution and that would further strengthen the hands of the Court. Such observation cannot be construed to mean that the Court lacks the power to make such a modification without reference back to the creditors and/or members, as the case may be. In the background of these unimpeachable acts the conclusion is inescapable that the appellants have a subsisting and vital interest in the fate and future of IHI and they are the appropriate persons who could and should be substituted in place of the original sponsor. 30. In passing it was said that the fate of the company should not be placed in the hands of the appellants and the lack of bona fides of the appellants become discernible from the fact that they tooth and nail oppo-sed the very scheme which they now seek to implement. This is hardly a relevant consideration. A creditor may come and oppose a scheme being implemented by some person and yet may be interested in taking over the affairs of the company. This could hardly be treated as a disqualification of the appellants. 31. Lastly it may be mentioned that the appellants agree to imple-ment the scheme. They undertake to bring Rs. 3 lacs as liquid finance for implementing the scheme. The question of the know how was examined by the company Judge who has accepted their fitness to run the business and nothing was pointed out to us to depart from the same. Therefore, viewed from any angle, we see no objection to granting the application of the appellants for substitution/modification as sponsors of the scheme.
### Response:
1
### Explanation:
for modification/substitution of them-selves as proponents of the scheme with a liability to implement the scheme as they were neither members nor creditors of the Company and according to the High Court, if a scheme of compromise or arrangement cannot be proposed by any one except a member or creditor, ipso facto, an appli-cation for modification of such scheme sanctioned by the Court under Section 391 (2) could not be made by any one other than a member or a creditor20. The stand taken by respondent Jain in this behalf is wholly ambi-valent21. In the aforementioned circumstances we are not inclined to examine a very serious contention raised by Mr. Mridul who appeared at a later stage of hearing for the respondent Jain that unless names, of the appel-lants are put on the register of IHI they do not become members and as the assignments on which the appellants rely does not comply with the require-ments of Section 130 of the Transfer of Property Act, the assignee?s title to the debt assigned has not become complete, and, therefore, the appellants are not creditors of IHI. We may in passing say that the factum of assignment or the sale of shares was never seriously questioned but we are prepared to proceed on the assumption that even if it be so, in the circumstances herein discussed and the ambivalence of respondent Jain the appellants could certainly be said to be persons sufficiently interested both in the company IHI and the scheme in respect of it so as to be able to maintain an appelition under Section 392 (1)22. Lastly in this connection it must be remembered that if DFM whose scheme was sanctioned and not challenged by respondent Jain, started implementing the scheme and after getting into the saddle by constituting the Board of Directors as desired by it, it could have transferred its shares to appellants and appellants could have as well taken over management and implemented the scheme and so one, at any rate, respondent Jain holding only 1000 equity shares i.e. 1.25% of the issued capital, could have objected to it. The objection at this stage is equally futile. Therefore, with respect, the High Court was in error in holding that the appellants had no locus standi to maintain an application under Section (392) (1)29. Now to the facts of the case. The appellants have applied for substituting them as sponsors of the scheme in place of DFM. They claim to have purchased 44,000 shares out of 80,000 issued and subscribed equity shares of thecompany.As stated earlier, between the transferor and trans-feree of the shares, the transfer of the shares is complete and not even seriously objected to by the respondent as pointed out herein before. The sponsor has taken an assignment of a debt of Rs. 23 lacs which IHI owed to DFM from the creditor DFM. Again, as between the transferor and transferee the assignment is complete. The only objector is respondent holding l,000 equity shares representing 1.25 per cent of the issued and subscribed capital. An advertisement was directed to be inserted by the order of the Court in newspapers in respect of the application for substitu-tion/modification made by the appellants inviting every one interested in the company or in the scheme of compromise and/or arrangement or to come and lodge objection, if it was so desired, against substitution/modification prayed by the appellants. None including the petitioning creditor except the respondent Jain has lodged such an objection. This procedure was also followed by the Gujarat High Court in Mansukhlal?s (2) case and by referring to that part of the judgment, the High Court held that judgment itself is an authority for the proposition that substitution of the sponsor is a vital change of a basic nature and cannot be ordered by the Court acting under Section 392 and must be referred to a meeting of the creditors or members. With respect this is not a fair reading of the judgment. At pages, the scope and ambit of the power of the Court under Section 392 has been precisely set out and it is concluded that the power to modify would comprehend the power to substitute one sponsor for the other if he is found otherwise fit and competent. As an additional string to the bow, it was observed, as it is being done here also that no one has come forward to object to the substi-tution and that would further strengthen the hands of the Court. Such observation cannot be construed to mean that the Court lacks the power to make such a modification without reference back to the creditors and/or members, as the case may be. In the background of these unimpeachable acts the conclusion is inescapable that the appellants have a subsisting and vital interest in the fate and future of IHI and they are the appropriate persons who could and should be substituted in place of the original sponsor30. In passing it was said that the fate of the company should not be placed in the hands of the appellants and the lack of bona fides of the appellants become discernible from the fact that they tooth and nail oppo-sed the very scheme which they now seek to implement. This is hardly a relevant consideration. A creditor may come and oppose a scheme being implemented by some person and yet may be interested in taking over the affairs of thecompany.This could hardly be treated as a disqualification of the appellants31. Lastly it may be mentioned that the appellants agree to imple-ment the scheme. They undertake to bring Rs. 3 lacs as liquid finance for implementing the scheme. The question of the know how was examined by the company Judge who has accepted their fitness to run the business and nothing was pointed out to us to depart from the same. Therefore, viewed from any angle, we see no objection to granting the application of the appellants for substitution/modification as sponsors of the scheme.
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Messrs Juggilal Kamlapat Oil Mills Vs. Union of India and Others | the competent authority under the Calcutta Municipal Act. This in itself would be a sufficient answer for the failure to comply with the appellants request.7. The obligation of a bailee is set out in Section 151 of the Indian Contract Act. The section says that a bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 152 of that Act says that the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. A bailee is excused from returning the subject-matter of the bailment to the bailor or his agent where the subject-matter was taken away from him by authority of law exercised through regular and valid proceedings. (See Corpus Juris Secundum, Vol. 8, p. 308).8. The consignment in question was accepted by the railway authorities at Kanpur under the risk note in Form Z (Exhibit A). The material portion of Ex. A runs :I .... do hereby agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of or damage to all or any of such consignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants, provided that in the following cases :-(a) non-delivery of the whole of a consignment - where such non-delivery is not due to accidents to trains or to fire :The Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor it called upon to prove misconduct, but, if misconduct on the part of the Railway Administration or its servant cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.9. So, if the loss, destruction or damage arose from the misconduct on the part of the railway administration or its servant, then the railway would be liable to pay damages. The question then is whether the loss or destruction of the oil resulted from any misconduct on the part of the railway administration.10. The non-delivery of the oil was not due to any accident to the train, nor was it due to fire or any other circumstance within the control of the railway. As already indicated, when the tank wagon reached Calcutta, the locks put by the appellant on it and the railway seal were found to remain intact. There was, therefore, no loss or destruction of the goods during transit between Kanpur and Calcutta. The inability of the railway administration to deliver the consignment at Calcutta was due to the fact that the tank wagon was seized by a competent authority and its contents destroyed under the orders of the High Court of Calcutta. The risk note lays down the rule of presumption on the question of misconduct. The respondents having proved that the wagon containing the mustard oil reached Calcutta safely, there is no room for inferring any misconduct on the part of the railway administration or its servants. The respondent cannot, therefore, be held liable under Exhibit A.11. Even under the general law, the respondent cannot be held liable for non-delivery of the consignment. The tank wagon was seized at Calcutta by the Food Inspector not because of any negligence of the railway authorities, but because the Health Officer of the Calcutta Corporation suspected that the oil was adulterated.12. In Exhibit 11 - the notice given under Section 80 of the Civil Procedure Code, it was stated that since the tank wagon was not returned to Kanpur according to the direction of the appellant and the goods delivered to the appellant there, the respondents were liable in damages. On reading Ex. 11, it would seem that the main grievance of the appellant was that the respondents failed to return the tank wagon to Kanpur as requested by it any give delivery of the oil at Kanpur. In that notice, the appellant did not complain about the non-delivery of the oil at Calcutta or about tampering with the padlocks by the railway authorities.13. Mr. Goel, on behalf of the appellant, however, contended the strength of certain observations in Corpus Juris Secundum (See Vol. 8, p. 309) that a notice ought to have been given by the railway authorities to the appellant about the seizure of the tank wagon on September 6, 1949 or within a reasonable time and that the failure to do so would make the railway administration liable in damages.14. The object of the notice is to give an opportunity to the bailor to litigate his rights to property bailed. The appellant was a party to the proceedings before the Magistrate and the High Court. The High Court passed the order for destruction of the oil after finding that the tank wagon was lawfully seized by the Food Inspector and that the samples of oil were taken in accordance with law. We fail to see what prejudice was caused to the appellant by the failure to give the notice. There is also great force in the contention of the respondents that the appellant was aware of the seizure of the wagon on September 6, 1949 as the appellant was to take delivery of the oil on its arrival in Calcutta. Quite apart from this, the case that the railway authorities ought to have given notice to the appellant of the seizure of the tank wagon within a reasonable time and that the failure to give notice has prejudiced it was not pleaded either before the trial Court or the High Court. | 0[ds]ry of the oil was not due to any accident to the train, nor was it due to fire or any other circumstance within the control of the railway. As already indicated, when the tank wagon reached Calcutta, the locks put by the appellant on it and the railway seal were found to remain intact. There was, therefore, no loss or destruction of the goods during transit between Kanpur and Calcutta. The inability of the railway administration to deliver the consignment at Calcutta was due to the fact that the tank wagon was seized by a competent authority and its contents destroyed under the orders of the High Court of Calcutta. The risk note lays down the rule of presumption on the question of misconduct. The respondents having proved that the wagon containing the mustard oil reached Calcutta safely, there is no room for inferring any misconduct on the part of the railway administration or its servants. The respondent cannot, therefore, be held liable under Exhibit A.11. Even under the general law, the respondent cannot be held liable forof the consignment. The tank wagon was seized at Calcutta by the Food Inspector not because of any negligence of the railway authorities, but because the Health Officer of the Calcutta Corporation suspected that the oil was adulterated.12. In Exhibit 11the notice given under Section 80 of the Civil Procedure Code, it was stated that since the tank wagon was not returned to Kanpur according to the direction of the appellant and the goods delivered to the appellant there, the respondents were liable in damages. On reading Ex. 11, it would seem that the main grievance of the appellant was that the respondents failed to return the tank wagon to Kanpur as requested by it any give delivery of the oil at Kanpur. In that notice, the appellant did not complain about theof the oil at Calcutta or about tampering with the padlocks by the railway authorities.The object of the notice is to give an opportunity to the bailor to litigate his rights to property bailed. The appellant was a party to the proceedings before the Magistrate and the High Court. The High Court passed the order for destruction of the oil after finding that the tank wagon was lawfully seized by the Food Inspector and that the samples of oil were taken in accordance with law. We fail to see what prejudice was caused to the appellant by the failure to give the notice. There is also great force in the contention of the respondents that the appellant was aware of the seizure of the wagon on September 6, 1949 as the appellant was to take delivery of the oil on its arrival in Calcutta. Quite apart from this, the case that the railway authorities ought to have given notice to the appellant of the seizure of the tank wagon within a reasonable time and that the failure to give notice has prejudiced it was not pleaded either before the trial Court or the High Court. | 0 | 1,926 | 545 | ### Instruction:
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the competent authority under the Calcutta Municipal Act. This in itself would be a sufficient answer for the failure to comply with the appellants request.7. The obligation of a bailee is set out in Section 151 of the Indian Contract Act. The section says that a bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. Section 152 of that Act says that the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. A bailee is excused from returning the subject-matter of the bailment to the bailor or his agent where the subject-matter was taken away from him by authority of law exercised through regular and valid proceedings. (See Corpus Juris Secundum, Vol. 8, p. 308).8. The consignment in question was accepted by the railway authorities at Kanpur under the risk note in Form Z (Exhibit A). The material portion of Ex. A runs :I .... do hereby agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of or damage to all or any of such consignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants, provided that in the following cases :-(a) non-delivery of the whole of a consignment - where such non-delivery is not due to accidents to trains or to fire :The Railway Administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor it called upon to prove misconduct, but, if misconduct on the part of the Railway Administration or its servant cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.9. So, if the loss, destruction or damage arose from the misconduct on the part of the railway administration or its servant, then the railway would be liable to pay damages. The question then is whether the loss or destruction of the oil resulted from any misconduct on the part of the railway administration.10. The non-delivery of the oil was not due to any accident to the train, nor was it due to fire or any other circumstance within the control of the railway. As already indicated, when the tank wagon reached Calcutta, the locks put by the appellant on it and the railway seal were found to remain intact. There was, therefore, no loss or destruction of the goods during transit between Kanpur and Calcutta. The inability of the railway administration to deliver the consignment at Calcutta was due to the fact that the tank wagon was seized by a competent authority and its contents destroyed under the orders of the High Court of Calcutta. The risk note lays down the rule of presumption on the question of misconduct. The respondents having proved that the wagon containing the mustard oil reached Calcutta safely, there is no room for inferring any misconduct on the part of the railway administration or its servants. The respondent cannot, therefore, be held liable under Exhibit A.11. Even under the general law, the respondent cannot be held liable for non-delivery of the consignment. The tank wagon was seized at Calcutta by the Food Inspector not because of any negligence of the railway authorities, but because the Health Officer of the Calcutta Corporation suspected that the oil was adulterated.12. In Exhibit 11 - the notice given under Section 80 of the Civil Procedure Code, it was stated that since the tank wagon was not returned to Kanpur according to the direction of the appellant and the goods delivered to the appellant there, the respondents were liable in damages. On reading Ex. 11, it would seem that the main grievance of the appellant was that the respondents failed to return the tank wagon to Kanpur as requested by it any give delivery of the oil at Kanpur. In that notice, the appellant did not complain about the non-delivery of the oil at Calcutta or about tampering with the padlocks by the railway authorities.13. Mr. Goel, on behalf of the appellant, however, contended the strength of certain observations in Corpus Juris Secundum (See Vol. 8, p. 309) that a notice ought to have been given by the railway authorities to the appellant about the seizure of the tank wagon on September 6, 1949 or within a reasonable time and that the failure to do so would make the railway administration liable in damages.14. The object of the notice is to give an opportunity to the bailor to litigate his rights to property bailed. The appellant was a party to the proceedings before the Magistrate and the High Court. The High Court passed the order for destruction of the oil after finding that the tank wagon was lawfully seized by the Food Inspector and that the samples of oil were taken in accordance with law. We fail to see what prejudice was caused to the appellant by the failure to give the notice. There is also great force in the contention of the respondents that the appellant was aware of the seizure of the wagon on September 6, 1949 as the appellant was to take delivery of the oil on its arrival in Calcutta. Quite apart from this, the case that the railway authorities ought to have given notice to the appellant of the seizure of the tank wagon within a reasonable time and that the failure to give notice has prejudiced it was not pleaded either before the trial Court or the High Court.
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ry of the oil was not due to any accident to the train, nor was it due to fire or any other circumstance within the control of the railway. As already indicated, when the tank wagon reached Calcutta, the locks put by the appellant on it and the railway seal were found to remain intact. There was, therefore, no loss or destruction of the goods during transit between Kanpur and Calcutta. The inability of the railway administration to deliver the consignment at Calcutta was due to the fact that the tank wagon was seized by a competent authority and its contents destroyed under the orders of the High Court of Calcutta. The risk note lays down the rule of presumption on the question of misconduct. The respondents having proved that the wagon containing the mustard oil reached Calcutta safely, there is no room for inferring any misconduct on the part of the railway administration or its servants. The respondent cannot, therefore, be held liable under Exhibit A.11. Even under the general law, the respondent cannot be held liable forof the consignment. The tank wagon was seized at Calcutta by the Food Inspector not because of any negligence of the railway authorities, but because the Health Officer of the Calcutta Corporation suspected that the oil was adulterated.12. In Exhibit 11the notice given under Section 80 of the Civil Procedure Code, it was stated that since the tank wagon was not returned to Kanpur according to the direction of the appellant and the goods delivered to the appellant there, the respondents were liable in damages. On reading Ex. 11, it would seem that the main grievance of the appellant was that the respondents failed to return the tank wagon to Kanpur as requested by it any give delivery of the oil at Kanpur. In that notice, the appellant did not complain about theof the oil at Calcutta or about tampering with the padlocks by the railway authorities.The object of the notice is to give an opportunity to the bailor to litigate his rights to property bailed. The appellant was a party to the proceedings before the Magistrate and the High Court. The High Court passed the order for destruction of the oil after finding that the tank wagon was lawfully seized by the Food Inspector and that the samples of oil were taken in accordance with law. We fail to see what prejudice was caused to the appellant by the failure to give the notice. There is also great force in the contention of the respondents that the appellant was aware of the seizure of the wagon on September 6, 1949 as the appellant was to take delivery of the oil on its arrival in Calcutta. Quite apart from this, the case that the railway authorities ought to have given notice to the appellant of the seizure of the tank wagon within a reasonable time and that the failure to give notice has prejudiced it was not pleaded either before the trial Court or the High Court.
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Hindusthan Udyog Ltd Vs. Assistant Provident Fund Commissioner | examine that material and allowed the appeal. This aspect was noticed by the learned Single Judge and hence the proceedings were remanded for fresh adjudication. In that regard the learned counsel placed reliance on the decision in M/s L. N. Gadodia and Sons and Anr vs Regional Provident Fund Commissioner AIR 2012 SC 273 and submitted that no interference with the judgment of the learned Single Judge was called for. 10. In reply it was submitted by the learned counsel for the appellant that the notice issued under Section 7-A of the Act of 1952 did not make any mention to contribution being made by some employees of ANCL to the provident fund account with ACCL. The notice was also silent on the aspect of preponement of applicability of the provisions of the Act of 1952 to ANCL. Mere fact that the two establishments shared a common address for their registered office did not make any difference nor did the Annual Reports show financial inter dependence between the two. 11. We have heard the learned counsel for the parties at length and we have perused the material placed on record in the proceedings. At the outset it may be noted that by the impugned judgment, the learned Single Judge after finding that the Tribunal in exercise of appellate jurisdiction had failed to take into consideration various relevant factors and had also failed to consider the material on record concluded that the findings of the Tribunal suffered from non-application of mind to the material available on record. It is on that premise that the order passed by the Tribunal has been set aside and after keeping all questions open including the question as to whether ANCL was part and parcel of ACCL remanded the proceedings. While examining the correctness of the order of remand, the reasons for remanding the proceedings would be required to be kept in mind. If the reasons that prompted the Court to remand the proceedings are found to be justified coupled with the fact that the order impugned is one of open remand, the appellate Court would be slow to interfere with such order. On the other hand if it is found that the Court was not at all justified in remanding the proceedings in view of the fact that the material on record was already considered by the Court to which the proceedings have been remanded, there would be scope to interfere with such order of remand. Further, only if it is found that the order of remand was unwarranted would the question of examining the merits of the dispute arise. Keeping these broad aspects in mind we have perused the material on record in the light of the observations made in the judgment of the learned Single Judge. We are satisfied that remand of the proceedings to the Tribunal was justified in view of the fact that the material placed on record of the Tribunal was not considered by it thus warranting re-consideration of the matter. 12. The order passed by the Assistant Provident Fund Commissioner in proceedings under Section 7-A of the Act of 1952 indicates that it was found that ANCL was a subsidiary Company of ACCL. ANCL and ACCL had a common registered office, the Provident Fund Scheme of ACCL as per its Provident Fund Rules was applicable to the employees of ANCL and the Annual Reports of ANCL indicated deposit of provident fund bills with ACCL. It is on the basis of aforesaid material that the Assistant Provident Fund Commissioner while upholding the applicability of the provisions of the Act of 1952 to ANCL directed payment of provident fund dues from November 1993 onwards. In the appeal preferred by the appellant the aforesaid material was referred to to urge that ANCL was a distinct establishment and it was not liable to be clubbed with ACCL. When the order of the Tribunal is perused it can be seen that in paragraph 4 thereof the only observation made was that ANCL was a subsidiary Company of ACCL. It has thereafter been observed that there was no material or evidence on record considered by the Assistant Provident Fund Commissioner to establish the facts of unity of finance or employment between ANCL and ACCL. Except this observation the material available on record and relied upon by the Assistant Provident Fund Commissioner has neither been referred to and therefore not considered. The grounds now raised in appeal by the appellant were also raised before the learned Single Judge and after considering the same it was found that relevant material was not considered by the Tribunal thus vitiating its order. We find that the learned Single Judge was justified in holding so and thereafter remanding the proceedings to the Tribunal for fresh consideration. It is a clear case of non-consideration of material on record by the Tribunal while deciding the statutory appeal. We therefore find that there is no reason to interfere with the order of remand. 13. Though the learned counsel for the appellant by relying upon various decisions of the Honourable Supreme Court sought to urge that the order passed by the Assistant Provident Fund Commissioner was even otherwise not sustainable in law, we find that as the learned Single Judge while remanding the proceedings has kept all questions open including the question as to whether ANCL was a part and parcel of ACCL, all aspects can be considered by the Tribunal in the statutory appeal. We have therefore not examined the applicability of the ratio of the decisions relied upon by the learned counsel for the parties and that effort can be made before the Tribunal. We also find that nothing much would turn on the fact that despite liberty being granted to the respondent to hold a fresh enquiry under Section 7-A of the Act of 1952, the respondent decided to wait for the outcome of the present proceedings. In any event the said aspect would not resurrect the order of the Tribunal. | 0[ds]11. We have heard the learned counsel for the parties at length and we have perused the material placed on record in the proceedings. At the outset it may be noted that by the impugned judgment, the learned Single Judge after finding that the Tribunal in exercise of appellate jurisdiction had failed to take into consideration various relevant factors and had also failed to consider the material on record concluded that the findings of the Tribunal suffered from non-application of mind to the material available on record. It is on that premise that the order passed by the Tribunal has been set aside and after keeping all questions open including the question as to whether ANCL was part and parcel of ACCL remanded the proceedings. While examining the correctness of the order of remand, the reasons for remanding the proceedings would be required to be kept in mind. If the reasons that prompted the Court to remand the proceedings are found to be justified coupled with the fact that the order impugned is one of open remand, the appellate Court would be slow to interfere with such order. On the other hand if it is found that the Court was not at all justified in remanding the proceedings in view of the fact that the material on record was already considered by the Court to which the proceedings have been remanded, there would be scope to interfere with such order of remand. Further, only if it is found that the order of remand was unwarranted would the question of examining the merits of the dispute arise. Keeping these broad aspects in mind we have perused the material on record in the light of the observations made in the judgment of the learned Single Judge. We are satisfied that remand of the proceedings to the Tribunal was justified in view of the fact that the material placed on record of the Tribunal was not considered by it thus warranting re-consideration of the matter.12. The order passed by the Assistant Provident Fund Commissioner in proceedings under Section 7-A of the Act of 1952 indicates that it was found that ANCL was a subsidiary Company of ACCL. ANCL and ACCL had a common registered office, the Provident Fund Scheme of ACCL as per its Provident Fund Rules was applicable to the employees of ANCL and the Annual Reports of ANCL indicated deposit of provident fund bills with ACCL. It is on the basis of aforesaid material that the Assistant Provident Fund Commissioner while upholding the applicability of the provisions of the Act of 1952 to ANCL directed payment of provident fund dues from November 1993 onwards.In the appeal preferred by the appellant the aforesaid material was referred to to urge that ANCL was a distinct establishment and it was not liable to be clubbed with ACCL. When the order of the Tribunal is perused it can be seen that in paragraph 4 thereof the only observation made was that ANCL was a subsidiary Company of ACCL. It has thereafter been observed that there was no material or evidence on record considered by the Assistant Provident Fund Commissioner to establish the facts of unity of finance or employment between ANCL and ACCL. Except this observation the material available on record and relied upon by the Assistant Provident Fund Commissioner has neither been referred to and therefore not considered. The grounds now raised in appeal by the appellant were also raised before the learned Single Judge and after considering the same it was found that relevant material was not considered by the Tribunal thus vitiating its order. We find that the learned Single Judge was justified in holding so and thereafter remanding the proceedings to the Tribunal for fresh consideration. It is a clear case of non-consideration of material on record by the Tribunal while deciding the statutory appeal. We therefore find that there is no reason to interfere with the order of remand.13. Though the learned counsel for the appellant by relying upon various decisions of the Honourable Supreme Court sought to urge that the order passed by the Assistant Provident Fund Commissioner was even otherwise not sustainable in law, we find that as the learned Single Judge while remanding the proceedings has kept all questions open including the question as to whether ANCL was a part and parcel of ACCL, all aspects can be considered by the Tribunal in the statutory appeal. We have therefore not examined the applicability of the ratio of the decisions relied upon by the learned counsel for the parties and that effort can be made before the Tribunal. We also find that nothing much would turn on the fact that despite liberty being granted to the respondent to hold a fresh enquiry under Section 7-A of the Act of 1952, the respondent decided to wait for the outcome of the present proceedings. In any event the said aspect would not resurrect the order of the Tribunal. | 0 | 3,184 | 865 | ### Instruction:
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examine that material and allowed the appeal. This aspect was noticed by the learned Single Judge and hence the proceedings were remanded for fresh adjudication. In that regard the learned counsel placed reliance on the decision in M/s L. N. Gadodia and Sons and Anr vs Regional Provident Fund Commissioner AIR 2012 SC 273 and submitted that no interference with the judgment of the learned Single Judge was called for. 10. In reply it was submitted by the learned counsel for the appellant that the notice issued under Section 7-A of the Act of 1952 did not make any mention to contribution being made by some employees of ANCL to the provident fund account with ACCL. The notice was also silent on the aspect of preponement of applicability of the provisions of the Act of 1952 to ANCL. Mere fact that the two establishments shared a common address for their registered office did not make any difference nor did the Annual Reports show financial inter dependence between the two. 11. We have heard the learned counsel for the parties at length and we have perused the material placed on record in the proceedings. At the outset it may be noted that by the impugned judgment, the learned Single Judge after finding that the Tribunal in exercise of appellate jurisdiction had failed to take into consideration various relevant factors and had also failed to consider the material on record concluded that the findings of the Tribunal suffered from non-application of mind to the material available on record. It is on that premise that the order passed by the Tribunal has been set aside and after keeping all questions open including the question as to whether ANCL was part and parcel of ACCL remanded the proceedings. While examining the correctness of the order of remand, the reasons for remanding the proceedings would be required to be kept in mind. If the reasons that prompted the Court to remand the proceedings are found to be justified coupled with the fact that the order impugned is one of open remand, the appellate Court would be slow to interfere with such order. On the other hand if it is found that the Court was not at all justified in remanding the proceedings in view of the fact that the material on record was already considered by the Court to which the proceedings have been remanded, there would be scope to interfere with such order of remand. Further, only if it is found that the order of remand was unwarranted would the question of examining the merits of the dispute arise. Keeping these broad aspects in mind we have perused the material on record in the light of the observations made in the judgment of the learned Single Judge. We are satisfied that remand of the proceedings to the Tribunal was justified in view of the fact that the material placed on record of the Tribunal was not considered by it thus warranting re-consideration of the matter. 12. The order passed by the Assistant Provident Fund Commissioner in proceedings under Section 7-A of the Act of 1952 indicates that it was found that ANCL was a subsidiary Company of ACCL. ANCL and ACCL had a common registered office, the Provident Fund Scheme of ACCL as per its Provident Fund Rules was applicable to the employees of ANCL and the Annual Reports of ANCL indicated deposit of provident fund bills with ACCL. It is on the basis of aforesaid material that the Assistant Provident Fund Commissioner while upholding the applicability of the provisions of the Act of 1952 to ANCL directed payment of provident fund dues from November 1993 onwards. In the appeal preferred by the appellant the aforesaid material was referred to to urge that ANCL was a distinct establishment and it was not liable to be clubbed with ACCL. When the order of the Tribunal is perused it can be seen that in paragraph 4 thereof the only observation made was that ANCL was a subsidiary Company of ACCL. It has thereafter been observed that there was no material or evidence on record considered by the Assistant Provident Fund Commissioner to establish the facts of unity of finance or employment between ANCL and ACCL. Except this observation the material available on record and relied upon by the Assistant Provident Fund Commissioner has neither been referred to and therefore not considered. The grounds now raised in appeal by the appellant were also raised before the learned Single Judge and after considering the same it was found that relevant material was not considered by the Tribunal thus vitiating its order. We find that the learned Single Judge was justified in holding so and thereafter remanding the proceedings to the Tribunal for fresh consideration. It is a clear case of non-consideration of material on record by the Tribunal while deciding the statutory appeal. We therefore find that there is no reason to interfere with the order of remand. 13. Though the learned counsel for the appellant by relying upon various decisions of the Honourable Supreme Court sought to urge that the order passed by the Assistant Provident Fund Commissioner was even otherwise not sustainable in law, we find that as the learned Single Judge while remanding the proceedings has kept all questions open including the question as to whether ANCL was a part and parcel of ACCL, all aspects can be considered by the Tribunal in the statutory appeal. We have therefore not examined the applicability of the ratio of the decisions relied upon by the learned counsel for the parties and that effort can be made before the Tribunal. We also find that nothing much would turn on the fact that despite liberty being granted to the respondent to hold a fresh enquiry under Section 7-A of the Act of 1952, the respondent decided to wait for the outcome of the present proceedings. In any event the said aspect would not resurrect the order of the Tribunal.
### Response:
0
### Explanation:
11. We have heard the learned counsel for the parties at length and we have perused the material placed on record in the proceedings. At the outset it may be noted that by the impugned judgment, the learned Single Judge after finding that the Tribunal in exercise of appellate jurisdiction had failed to take into consideration various relevant factors and had also failed to consider the material on record concluded that the findings of the Tribunal suffered from non-application of mind to the material available on record. It is on that premise that the order passed by the Tribunal has been set aside and after keeping all questions open including the question as to whether ANCL was part and parcel of ACCL remanded the proceedings. While examining the correctness of the order of remand, the reasons for remanding the proceedings would be required to be kept in mind. If the reasons that prompted the Court to remand the proceedings are found to be justified coupled with the fact that the order impugned is one of open remand, the appellate Court would be slow to interfere with such order. On the other hand if it is found that the Court was not at all justified in remanding the proceedings in view of the fact that the material on record was already considered by the Court to which the proceedings have been remanded, there would be scope to interfere with such order of remand. Further, only if it is found that the order of remand was unwarranted would the question of examining the merits of the dispute arise. Keeping these broad aspects in mind we have perused the material on record in the light of the observations made in the judgment of the learned Single Judge. We are satisfied that remand of the proceedings to the Tribunal was justified in view of the fact that the material placed on record of the Tribunal was not considered by it thus warranting re-consideration of the matter.12. The order passed by the Assistant Provident Fund Commissioner in proceedings under Section 7-A of the Act of 1952 indicates that it was found that ANCL was a subsidiary Company of ACCL. ANCL and ACCL had a common registered office, the Provident Fund Scheme of ACCL as per its Provident Fund Rules was applicable to the employees of ANCL and the Annual Reports of ANCL indicated deposit of provident fund bills with ACCL. It is on the basis of aforesaid material that the Assistant Provident Fund Commissioner while upholding the applicability of the provisions of the Act of 1952 to ANCL directed payment of provident fund dues from November 1993 onwards.In the appeal preferred by the appellant the aforesaid material was referred to to urge that ANCL was a distinct establishment and it was not liable to be clubbed with ACCL. When the order of the Tribunal is perused it can be seen that in paragraph 4 thereof the only observation made was that ANCL was a subsidiary Company of ACCL. It has thereafter been observed that there was no material or evidence on record considered by the Assistant Provident Fund Commissioner to establish the facts of unity of finance or employment between ANCL and ACCL. Except this observation the material available on record and relied upon by the Assistant Provident Fund Commissioner has neither been referred to and therefore not considered. The grounds now raised in appeal by the appellant were also raised before the learned Single Judge and after considering the same it was found that relevant material was not considered by the Tribunal thus vitiating its order. We find that the learned Single Judge was justified in holding so and thereafter remanding the proceedings to the Tribunal for fresh consideration. It is a clear case of non-consideration of material on record by the Tribunal while deciding the statutory appeal. We therefore find that there is no reason to interfere with the order of remand.13. Though the learned counsel for the appellant by relying upon various decisions of the Honourable Supreme Court sought to urge that the order passed by the Assistant Provident Fund Commissioner was even otherwise not sustainable in law, we find that as the learned Single Judge while remanding the proceedings has kept all questions open including the question as to whether ANCL was a part and parcel of ACCL, all aspects can be considered by the Tribunal in the statutory appeal. We have therefore not examined the applicability of the ratio of the decisions relied upon by the learned counsel for the parties and that effort can be made before the Tribunal. We also find that nothing much would turn on the fact that despite liberty being granted to the respondent to hold a fresh enquiry under Section 7-A of the Act of 1952, the respondent decided to wait for the outcome of the present proceedings. In any event the said aspect would not resurrect the order of the Tribunal.
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Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. | S.N. Variava, J. 1. This Appeal is against an Order passed by the Industrial Court on 20th August, 1996. 2. Briefly stated the facts are as follows : The Appellants claim to be a union representing the workmen of a Canteen run by the Respondents. The Appellant Union claimed that even though the Appellants are actually the employees of the Respondents, the Respondents are not treating them at par with other employees and have notionally engaged contractors to run the canteen. As the Respondents were not accepting the Appellants claim to treat them as their employees, the Appellant filed a Complaint under Section 20(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called the MRTU and PULP Act) alleging that the Respondents had engaged in unfair labour practices under Item Nos. 1, 1(a), 1(b), 4, 4(a) of Schedule II and Items 3, 4, 6, 7, 9 and 10 of Schedule IV of the MRTU and PULP Act. This Complaint came o be dismissed by the impugned Order dated 20th August, 1996. 3. the Appellant Union has filed an SLP directly in this Court against this Order as the High Court of Bombay, in the case of Krantikari Suraksha Rakshak Sangathana v. S.V. Naik reported in 1993(1) CLR Page 1002, has already held that the Industrial Court cannot in a complaint under MRTU and PULP Act abolish contract labour and treat employees as direct employees of the company. 4. At this stage it must be mentioned that this Court has also in the case of Central labour Union (Red Flag) Bombay v. Ahmedabad Mfg. and Callco Printing Co.Ltd. and others, reported in 1995(2) LLJ 765, held that where the workmen have not been accepted by the Company to be its employees, then no complaint would lie under the MRTU and PULP Act. We are in full agreement with the above mentioned view.5. The provisions of MRTU and PULP Act can only be enforced by persons who admittedly are workmen. If other is dispute as to whether the employees are employees of the Company, then taht dispute must first be got resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in a appropriate Forum that a complaint could be made under the provisions of MRTU and PULP Act.6. Faced with this situation it was submitted that the Respondent Company had always recognised the members of the Appellant Union to be their own workmen. It is submitted that a formal denial was taken only to defeat the claim. We see no substance in this submission. In the written statement it has been categorically denied that the members of the Appellant Union were employees of the Respondent Company. the question has been agitated before the Industrial Court. The Industrial Court has given a finding, on facts, that the members of the Appellant Court were not employees of the Respondent Company. this is a disputed fact and thus till the Appellants or their members, get the question decided in a proper forum, this complaint was not maintainable. 7. Accordingly, we | 0[ds]4. At this stage it must be mentioned that this Court has also in the case of Central labour Union (Red Flag) Bombay v. Ahmedabad Mfg. and Callco Printing Co.Ltd. and others, reported in 1995(2) LLJ 765, held that where the workmen have not been accepted by the Company to be its employees, then no complaint would lie under the MRTU and PULP Act. We are in full agreement with the above mentioned view.5. The provisions of MRTU and PULP Act can only be enforced by persons who admittedly are workmen.other is dispute as to whether the employees are employees of the Company, then taht dispute must first be got resolved by raising a dispute before the appropriate forum.It is only after the status as a workmen is established in a appropriate Forum that a complaint could be made under the provisions of MRTU and PULP Act.6. Faced with this situation it was submitted that the Respondent Company had always recognised the members of the Appellant Union to be their own workmen. It is submitted that a formal denial was taken only to defeat the claim. We see no substance in this submission. In the written statement it has been categorically denied that the members of the Appellant Union were employees of the Respondent Company. the question has been agitated before the Industrial Court. The Industrial Court has given a finding, on facts, that the members of the Appellant Court were not employees of the Respondent Company. this is a disputed fact and thus till the Appellants or their members, get the question decided in a proper forum, this complaint was not maintainable. | 0 | 600 | 303 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
S.N. Variava, J. 1. This Appeal is against an Order passed by the Industrial Court on 20th August, 1996. 2. Briefly stated the facts are as follows : The Appellants claim to be a union representing the workmen of a Canteen run by the Respondents. The Appellant Union claimed that even though the Appellants are actually the employees of the Respondents, the Respondents are not treating them at par with other employees and have notionally engaged contractors to run the canteen. As the Respondents were not accepting the Appellants claim to treat them as their employees, the Appellant filed a Complaint under Section 20(1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter called the MRTU and PULP Act) alleging that the Respondents had engaged in unfair labour practices under Item Nos. 1, 1(a), 1(b), 4, 4(a) of Schedule II and Items 3, 4, 6, 7, 9 and 10 of Schedule IV of the MRTU and PULP Act. This Complaint came o be dismissed by the impugned Order dated 20th August, 1996. 3. the Appellant Union has filed an SLP directly in this Court against this Order as the High Court of Bombay, in the case of Krantikari Suraksha Rakshak Sangathana v. S.V. Naik reported in 1993(1) CLR Page 1002, has already held that the Industrial Court cannot in a complaint under MRTU and PULP Act abolish contract labour and treat employees as direct employees of the company. 4. At this stage it must be mentioned that this Court has also in the case of Central labour Union (Red Flag) Bombay v. Ahmedabad Mfg. and Callco Printing Co.Ltd. and others, reported in 1995(2) LLJ 765, held that where the workmen have not been accepted by the Company to be its employees, then no complaint would lie under the MRTU and PULP Act. We are in full agreement with the above mentioned view.5. The provisions of MRTU and PULP Act can only be enforced by persons who admittedly are workmen. If other is dispute as to whether the employees are employees of the Company, then taht dispute must first be got resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in a appropriate Forum that a complaint could be made under the provisions of MRTU and PULP Act.6. Faced with this situation it was submitted that the Respondent Company had always recognised the members of the Appellant Union to be their own workmen. It is submitted that a formal denial was taken only to defeat the claim. We see no substance in this submission. In the written statement it has been categorically denied that the members of the Appellant Union were employees of the Respondent Company. the question has been agitated before the Industrial Court. The Industrial Court has given a finding, on facts, that the members of the Appellant Court were not employees of the Respondent Company. this is a disputed fact and thus till the Appellants or their members, get the question decided in a proper forum, this complaint was not maintainable. 7. Accordingly, we
### Response:
0
### Explanation:
4. At this stage it must be mentioned that this Court has also in the case of Central labour Union (Red Flag) Bombay v. Ahmedabad Mfg. and Callco Printing Co.Ltd. and others, reported in 1995(2) LLJ 765, held that where the workmen have not been accepted by the Company to be its employees, then no complaint would lie under the MRTU and PULP Act. We are in full agreement with the above mentioned view.5. The provisions of MRTU and PULP Act can only be enforced by persons who admittedly are workmen.other is dispute as to whether the employees are employees of the Company, then taht dispute must first be got resolved by raising a dispute before the appropriate forum.It is only after the status as a workmen is established in a appropriate Forum that a complaint could be made under the provisions of MRTU and PULP Act.6. Faced with this situation it was submitted that the Respondent Company had always recognised the members of the Appellant Union to be their own workmen. It is submitted that a formal denial was taken only to defeat the claim. We see no substance in this submission. In the written statement it has been categorically denied that the members of the Appellant Union were employees of the Respondent Company. the question has been agitated before the Industrial Court. The Industrial Court has given a finding, on facts, that the members of the Appellant Court were not employees of the Respondent Company. this is a disputed fact and thus till the Appellants or their members, get the question decided in a proper forum, this complaint was not maintainable.
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Bombay Telephone Canteen Employees' Association, Prabhadevi Telephone Exchange Vs. Union of India | security of tenure would be in great jeopardy. The employee would be at the beck and call of the employer, always keeping his order of employment in a grave uncertainty and in a fluid state like Democles sword hangs over the neck. On the other hand, if the interpretation of providing efficacious remedy under Article 226 gives protection to the workmen/employee the speedy remedy under Article 226/Section 19 of the Administrative Tribunal Act would protect the employee/workman from arbitrary action of the employer subserving the constitutional scheme and philosophy. The Court would, therefore, strike a balance between the competing rights of the individual and the State/agency or instrumentality and decide the validity of action taken by the Management. Necessarily, if the service conditions stand attracted, all the conditions laid therein would become applicable to the employees with a fixity of tenure and guarantee of service, subject to disciplinary action. His removal should be in accordance with the just and fair procedure envisaged under the Rules or application of the principles of natural justice, as the case may be, in which event the security of the tenure of the employee is assured and the whim and fancy and vagary of the employer would be detered and if unfair and unjust action is found established, it would be declared as an arbitrary, unjust or unfair procedure. On the other hand, if the finding is that there exist no statutory rules or certified standing orders exist or they are not either made or are inapplicable, the remedy of reference under Section 10 of the Act would always be available and availed of as it is an industry and indicia laid in Bangalore Water Supply Board case gets attracted. 10. From this perspective, this Court had approached the problem in T. Josephs case. T. Josephs case was a case relating to the departmental employee whose service was dispensed with. Considering the rules in operation in that behalf, it was held that the telephone department is not an industry. The appointment orders were given under the rules. In that behalf, it was held that India is a Sovereign, Socialist, Secular Democratic Republic. It has to establish an egalitarian social order under the rule of law. The welfare measures partake the character of sovereign functions and the traditional duty to maintain law and order is no longer the concept of the State. Directive Principles of the State Policy enjoin the State to undertake diverse duties envisaged under Part IV of the Constitution. One of the duties of the State is to provide tele-communication services to the general public an amenity; so, it is an essential part of the sovereign functions of the State as a welfare State. In Physical Research Laboratory v. K.G. Sharma [CA No. 2663/97] decided on April 8, 1997 : 1997(2) SCT 492 (SC), the question was whether the appellant who conducted research in a scientific laboratory was a `workman and the institution an `industry. Since the service conditions regulate conditions of employment, the Tribunal was devoid of jurisdiction to entertain the application under the Act for deciding the dispute. Following the judgment in T. Josephs case and distinguishing a judgment of three Judge Bench, it was held that research institute was a State within the meaning of Article 12. It is not an industry attracting the provisions of the Act. So, in Chief Conservator of Forests and another v. Jagannath Maruti Kandhare, 1996 (2) SCC 293 : 1996(2) SCT 165 (SC), this Court referred with approval to the Bangalore Water Supply Board case. In K.G. Sharmas case, the Industrial Tribunal had observed that the Physical Research Laboratory is an industry but this Court reversed it. The Telecommunication Department is not an industry and the Rules governing the conditions of service of the employees stand attracted and thereby the remedy under Article 226 would be available. To that area, the Act does not stand attracted. The respondents admit that the dismissed workmen who were holding civil post, by necessary implication, were excluded as workmen under Section 2(s). Even though the activities of the Corporation partake the character of a private enterprise, since the workmen engage themselves in rendering services, it is not an industry. If there exist no statutory rules binding standing orders, necessarily the reference under Section 10(1) would be valid and the Tribunal has jurisdiction to go into or the employee may avail of judicial review or common law review. 11. On an overall view, we hold that the employees working in the statutory canteen, in view of the admission made in the counter-affidavit that they are holding civil posts and are being paid monthly salary and are employees, the necessary conclusion would be that the Tribunal has no jurisdiction to adjudicate the dispute on a reference under Section 10(1) of the Act. On the other hand, the remedy to approach the constitutional court under article 226 is available. Equally, the remedy under Section 19 of the Administrative Tribunal Act is available. But, generally, the practice which has grown is to direct the citizen to avail, in the first instance, the remedy under Article 226 or under Section 19 of the Administrative Tribunal Act and then avail the right under Article 136 of the Constitution by special leave to this Court etc. Thus, in view of the admission made by the respondents in their counter-affidavit that the workmen of the appellant-Association are holding civil posts and are being paid monthly wages and benefits and are considered to be employees, the jurisdiction of the Industrial Tribunal stands excluded. It is open to the aggrieved party to approach appropriate authority in accordance with law. In that view, the finding of the Tribunal in the impugned judgment is legal and warrants no interference. It is open to the respondents to avail of such remedy as is available to a regular employee including the right to approach the Central Administrative Tribunal or the High Court or this Court thereafter for redressal of legal injury. 12. | 0[ds]11. On an overall view, we hold that the employees working in the statutory canteen, in view of the admission made in thethat they are holding civil posts and are being paid monthly salary and are employees, the necessary conclusion would be that the Tribunal has no jurisdiction to adjudicate the dispute on a reference under Section 10(1) of the Act. On the other hand, the remedy to approach the constitutional court under article 226 is available. Equally, the remedy under Section 19 of the Administrative Tribunal Act is available. But, generally, the practice which has grown is to direct the citizen to avail, in the first instance, the remedy under Article 226 or under Section 19 of the Administrative Tribunal Act and then avail the right under Article 136 of the Constitution by special leave to this Court etc. Thus, in view of the admission made by the respondents in theirthat the workmen of theare holding civil posts and are being paid monthly wages and benefits and are considered to be employees, the jurisdiction of the Industrial Tribunal stands excluded. It is open to the aggrieved party to approach appropriate authority in accordance with law. In that view, the finding of the Tribunal in the impugned judgment is legal and warrants no interference. It is open to the respondents to avail of such remedy as is available to a regular employee including the right to approach the Central Administrative Tribunal or the High Court or this Court thereafter for redressal of legal injury.It is, therefore, clear that there have been two streams of thinking simultaneously in the process of development to give protection to the employees of the Corporation. Its actions are controlled as an instrumentality of the State and the rules are made amenable to judicial review. Where there exists no statutory or analogous rules/instructions, the provisions of the Act get attracted. The employees are entitled to avail constitutional remedy under Article 226 or 32 or 136, as the case may be. The remedy of judicial review to every citizen or every person has expressly been provided in the Constitution. It is a fundamental right of every citizen. In the absence of statutory/administrative instruction in operation, the remedy of reference under Section 10 of the Act is available. Therefore, two streams, namely remedy under the Act by way of reference and remedy of judicial redressal by way of proceedings under Article 226 or a petition filed before the Administrative Tribunal to the aggrieved persons, areIf the doctrine laid in Bangalore Water Supply Board case is strictly applied, the consequence is catastrophic and would give a carte blanche power with laissez faire legitimacy which was buried fathom deep under the lethal blow of Article 14 of the Constitution which assures to every person just, fair and reasonable procedure before terminating the services of an employee. Instead, it gives the management/employer the power to dismiss the employee/workman with one months notice or pay in lieu thereof, and/or payment of retrenchment compensation under the Act. The security of tenure would be in great jeopardy. The employee would be at the beck and call of the employer, always keeping his order of employment in a grave uncertainty and in a fluid state like Democles sword hangs over the neck. On the other hand, if the interpretation of providing efficacious remedy under Article 226 gives protection to the workmen/employee the speedy remedy under Article 226/Section 19 of the Administrative Tribunal Act would protect the employee/workman from arbitrary action of the employer subserving the constitutional scheme and philosophy. The Court would, therefore, strike a balance between the competing rights of the individual and the State/agency or instrumentality and decide the validity of action taken by the Management. Necessarily, if the service conditions stand attracted, all the conditions laid therein would become applicable to the employees with a fixity of tenure and guarantee of service, subject to disciplinary action. His removal should be in accordance with the just and fair procedure envisaged under the Rules or application of the principles of natural justice, as the case may be, in which event the security of the tenure of the employee is assured and the whim and fancy and vagary of the employer would be detered and if unfair and unjust action is found established, it would be declared as an arbitrary, unjust or unfair procedure. On the other hand, if the finding is that there exist no statutory rules or certified standing orders exist or they are not either made or are inapplicable, the remedy of reference under Section 10 of the Act would always be available and availed of as it is an industry and indicia laid in Bangalore Water Supply Board case gets attracted. | 0 | 8,103 | 858 | ### 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:
security of tenure would be in great jeopardy. The employee would be at the beck and call of the employer, always keeping his order of employment in a grave uncertainty and in a fluid state like Democles sword hangs over the neck. On the other hand, if the interpretation of providing efficacious remedy under Article 226 gives protection to the workmen/employee the speedy remedy under Article 226/Section 19 of the Administrative Tribunal Act would protect the employee/workman from arbitrary action of the employer subserving the constitutional scheme and philosophy. The Court would, therefore, strike a balance between the competing rights of the individual and the State/agency or instrumentality and decide the validity of action taken by the Management. Necessarily, if the service conditions stand attracted, all the conditions laid therein would become applicable to the employees with a fixity of tenure and guarantee of service, subject to disciplinary action. His removal should be in accordance with the just and fair procedure envisaged under the Rules or application of the principles of natural justice, as the case may be, in which event the security of the tenure of the employee is assured and the whim and fancy and vagary of the employer would be detered and if unfair and unjust action is found established, it would be declared as an arbitrary, unjust or unfair procedure. On the other hand, if the finding is that there exist no statutory rules or certified standing orders exist or they are not either made or are inapplicable, the remedy of reference under Section 10 of the Act would always be available and availed of as it is an industry and indicia laid in Bangalore Water Supply Board case gets attracted. 10. From this perspective, this Court had approached the problem in T. Josephs case. T. Josephs case was a case relating to the departmental employee whose service was dispensed with. Considering the rules in operation in that behalf, it was held that the telephone department is not an industry. The appointment orders were given under the rules. In that behalf, it was held that India is a Sovereign, Socialist, Secular Democratic Republic. It has to establish an egalitarian social order under the rule of law. The welfare measures partake the character of sovereign functions and the traditional duty to maintain law and order is no longer the concept of the State. Directive Principles of the State Policy enjoin the State to undertake diverse duties envisaged under Part IV of the Constitution. One of the duties of the State is to provide tele-communication services to the general public an amenity; so, it is an essential part of the sovereign functions of the State as a welfare State. In Physical Research Laboratory v. K.G. Sharma [CA No. 2663/97] decided on April 8, 1997 : 1997(2) SCT 492 (SC), the question was whether the appellant who conducted research in a scientific laboratory was a `workman and the institution an `industry. Since the service conditions regulate conditions of employment, the Tribunal was devoid of jurisdiction to entertain the application under the Act for deciding the dispute. Following the judgment in T. Josephs case and distinguishing a judgment of three Judge Bench, it was held that research institute was a State within the meaning of Article 12. It is not an industry attracting the provisions of the Act. So, in Chief Conservator of Forests and another v. Jagannath Maruti Kandhare, 1996 (2) SCC 293 : 1996(2) SCT 165 (SC), this Court referred with approval to the Bangalore Water Supply Board case. In K.G. Sharmas case, the Industrial Tribunal had observed that the Physical Research Laboratory is an industry but this Court reversed it. The Telecommunication Department is not an industry and the Rules governing the conditions of service of the employees stand attracted and thereby the remedy under Article 226 would be available. To that area, the Act does not stand attracted. The respondents admit that the dismissed workmen who were holding civil post, by necessary implication, were excluded as workmen under Section 2(s). Even though the activities of the Corporation partake the character of a private enterprise, since the workmen engage themselves in rendering services, it is not an industry. If there exist no statutory rules binding standing orders, necessarily the reference under Section 10(1) would be valid and the Tribunal has jurisdiction to go into or the employee may avail of judicial review or common law review. 11. On an overall view, we hold that the employees working in the statutory canteen, in view of the admission made in the counter-affidavit that they are holding civil posts and are being paid monthly salary and are employees, the necessary conclusion would be that the Tribunal has no jurisdiction to adjudicate the dispute on a reference under Section 10(1) of the Act. On the other hand, the remedy to approach the constitutional court under article 226 is available. Equally, the remedy under Section 19 of the Administrative Tribunal Act is available. But, generally, the practice which has grown is to direct the citizen to avail, in the first instance, the remedy under Article 226 or under Section 19 of the Administrative Tribunal Act and then avail the right under Article 136 of the Constitution by special leave to this Court etc. Thus, in view of the admission made by the respondents in their counter-affidavit that the workmen of the appellant-Association are holding civil posts and are being paid monthly wages and benefits and are considered to be employees, the jurisdiction of the Industrial Tribunal stands excluded. It is open to the aggrieved party to approach appropriate authority in accordance with law. In that view, the finding of the Tribunal in the impugned judgment is legal and warrants no interference. It is open to the respondents to avail of such remedy as is available to a regular employee including the right to approach the Central Administrative Tribunal or the High Court or this Court thereafter for redressal of legal injury. 12.
### Response:
0
### Explanation:
11. On an overall view, we hold that the employees working in the statutory canteen, in view of the admission made in thethat they are holding civil posts and are being paid monthly salary and are employees, the necessary conclusion would be that the Tribunal has no jurisdiction to adjudicate the dispute on a reference under Section 10(1) of the Act. On the other hand, the remedy to approach the constitutional court under article 226 is available. Equally, the remedy under Section 19 of the Administrative Tribunal Act is available. But, generally, the practice which has grown is to direct the citizen to avail, in the first instance, the remedy under Article 226 or under Section 19 of the Administrative Tribunal Act and then avail the right under Article 136 of the Constitution by special leave to this Court etc. Thus, in view of the admission made by the respondents in theirthat the workmen of theare holding civil posts and are being paid monthly wages and benefits and are considered to be employees, the jurisdiction of the Industrial Tribunal stands excluded. It is open to the aggrieved party to approach appropriate authority in accordance with law. In that view, the finding of the Tribunal in the impugned judgment is legal and warrants no interference. It is open to the respondents to avail of such remedy as is available to a regular employee including the right to approach the Central Administrative Tribunal or the High Court or this Court thereafter for redressal of legal injury.It is, therefore, clear that there have been two streams of thinking simultaneously in the process of development to give protection to the employees of the Corporation. Its actions are controlled as an instrumentality of the State and the rules are made amenable to judicial review. Where there exists no statutory or analogous rules/instructions, the provisions of the Act get attracted. The employees are entitled to avail constitutional remedy under Article 226 or 32 or 136, as the case may be. The remedy of judicial review to every citizen or every person has expressly been provided in the Constitution. It is a fundamental right of every citizen. In the absence of statutory/administrative instruction in operation, the remedy of reference under Section 10 of the Act is available. Therefore, two streams, namely remedy under the Act by way of reference and remedy of judicial redressal by way of proceedings under Article 226 or a petition filed before the Administrative Tribunal to the aggrieved persons, areIf the doctrine laid in Bangalore Water Supply Board case is strictly applied, the consequence is catastrophic and would give a carte blanche power with laissez faire legitimacy which was buried fathom deep under the lethal blow of Article 14 of the Constitution which assures to every person just, fair and reasonable procedure before terminating the services of an employee. Instead, it gives the management/employer the power to dismiss the employee/workman with one months notice or pay in lieu thereof, and/or payment of retrenchment compensation under the Act. The security of tenure would be in great jeopardy. The employee would be at the beck and call of the employer, always keeping his order of employment in a grave uncertainty and in a fluid state like Democles sword hangs over the neck. On the other hand, if the interpretation of providing efficacious remedy under Article 226 gives protection to the workmen/employee the speedy remedy under Article 226/Section 19 of the Administrative Tribunal Act would protect the employee/workman from arbitrary action of the employer subserving the constitutional scheme and philosophy. The Court would, therefore, strike a balance between the competing rights of the individual and the State/agency or instrumentality and decide the validity of action taken by the Management. Necessarily, if the service conditions stand attracted, all the conditions laid therein would become applicable to the employees with a fixity of tenure and guarantee of service, subject to disciplinary action. His removal should be in accordance with the just and fair procedure envisaged under the Rules or application of the principles of natural justice, as the case may be, in which event the security of the tenure of the employee is assured and the whim and fancy and vagary of the employer would be detered and if unfair and unjust action is found established, it would be declared as an arbitrary, unjust or unfair procedure. On the other hand, if the finding is that there exist no statutory rules or certified standing orders exist or they are not either made or are inapplicable, the remedy of reference under Section 10 of the Act would always be available and availed of as it is an industry and indicia laid in Bangalore Water Supply Board case gets attracted.
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M/S SESHASAYEE STEELS P. LTD Vs. ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE VI(2), CHENNAI | contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 13. In order that the provisions of Section 53A of the T.P. Act be attracted, first and foremost, the transferee must, in part performance of the contract, have taken possession of the property or any part thereof. Secondly, the transferee must have performed or be willing to perform his part of the agreement. It is only if these two important conditions, among others, are satisfied that the provisions of Section 53A can be said to be attracted on the facts of a given case. 14. On a reading of the agreement to sell dated 15.05.1998, what is clear is that both the parties are entitled to specific performance. (See Clause 14) 15. Clause 16 is crucial, and the expression used in Clause 16 is that the party of the first part hereby gives permission to the party of the second part to start construction on the land. 16. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone. 17. We now turn to the argument of the learned senior counsel appearing on behalf of the assessee based on Section 2(47)(vi) of the Income Tax Act. 18. This Court in Commissioner of Income Tax v. Balbir Singh Maini (2018) 12 SCC 354 adverted to the provisions of this sub-Section in the following terms: 24. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression or in any other manner whatsoever in sub-clause (vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision. 25. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression enabling the enjoyment of takes color from the earlier expression transferring, so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof. The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact. 19. Given the test stated in paragraph 25 of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring, so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owners rights stand extinguished. It is clear that as on the date of the agreement to sell, the owners rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted. 20. Coming to the third argument of the learned senior counsel on behalf of the appellant, what has to be seen is the compromise deed and as to which pigeonhole such deed can possibly be said to fall under Section 2(47) of the Income Tax Act. A perusal of the compromise deed shows that the agreement to sell and the Power of Attorney are confirmed, and a sum of Rs.50 lakhs is reduced from the total consideration of Rs.6.10 crores. Clause 3 of the said compromise deed confirms that the party of the first part, this is the appellant, has received a sum of Rs.4,68,25,644/- out of the agreed sale consideration. Clause 4 records that the balance Rs.1.05 crores towards full and final settlement in respect of the Agreement entered into would then be paid by 7 post-dated cheques. Clause 5 then states that the last two cheques will be presented only upon due receipt of the discharge certificate from one M/s. Pioneer Homes. 21. In this context, it is important to advert to a finding of the ITAT, which was that all the cheques mentioned in the compromise deed have, in fact, been encashed. 22. This being the case, it is clear that the assessees rights in the said immovable property were extinguished on the receipt of the last cheque, as also that the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question. 23. The pigeonhole, therefore, that would support the orders under appeal would be Section 2(47)(ii) and (vi) of the I.T. Act in the facts of the present case. | 0[ds]14. On a reading of the agreement to sell dated 15.05.1998, what is clear is that both the parties are entitled to specific performance.16. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone19. Given the test stated in paragraph 25 of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring, so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owners rights stand extinguished. It is clear that as on the date of the agreement to sell, the owners rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted20. Coming to the third argument of the learned senior counsel on behalf of the appellant, what has to be seen is the compromise deed and as to which pigeonhole such deed can possibly be said to fall under Section 2(47) of the Income Tax Act. A perusal of the compromise deed shows that the agreement to sell and the Power of Attorney are confirmed, and a sum of Rs.50 lakhs is reduced from the total consideration of Rs.6.10 crores. Clause 3 of the said compromise deed confirms that the party of the first part, this is the appellant, has received a sum of Rs.4,68,25,644/- out of the agreed sale consideration. Clause 4 records that the balance Rs.1.05 crores towards full and final settlement in respect of the Agreement entered into would then be paid by 7 post-dated cheques. Clause 5 then states that the last two cheques will be presented only upon due receipt of the discharge certificate from one M/s. Pioneer Homes21. In this context, it is important to advert to a finding of the ITAT, which was that all the cheques mentioned in the compromise deed have, in fact, been encashed22. This being the case, it is clear that the assessees rights in the said immovable property were extinguished on the receipt of the last cheque, as also that the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question23. The pigeonhole, therefore, that would support the orders under appeal would be Section 2(47)(ii) and (vi) of the I.T. Act in the facts of the present case. | 0 | 3,021 | 549 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 13. In order that the provisions of Section 53A of the T.P. Act be attracted, first and foremost, the transferee must, in part performance of the contract, have taken possession of the property or any part thereof. Secondly, the transferee must have performed or be willing to perform his part of the agreement. It is only if these two important conditions, among others, are satisfied that the provisions of Section 53A can be said to be attracted on the facts of a given case. 14. On a reading of the agreement to sell dated 15.05.1998, what is clear is that both the parties are entitled to specific performance. (See Clause 14) 15. Clause 16 is crucial, and the expression used in Clause 16 is that the party of the first part hereby gives permission to the party of the second part to start construction on the land. 16. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone. 17. We now turn to the argument of the learned senior counsel appearing on behalf of the assessee based on Section 2(47)(vi) of the Income Tax Act. 18. This Court in Commissioner of Income Tax v. Balbir Singh Maini (2018) 12 SCC 354 adverted to the provisions of this sub-Section in the following terms: 24. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the High Court on this score. Under Section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would come within its purview. The High Court has not adverted to the expression or in any other manner whatsoever in sub-clause (vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. We have, therefore, to see whether the impugned transaction can fall within this provision. 25. The object of Section 2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression enabling the enjoyment of takes color from the earlier expression transferring, so that it is clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof. The idea is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact. 19. Given the test stated in paragraph 25 of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring, so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owners rights stand extinguished. It is clear that as on the date of the agreement to sell, the owners rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted. 20. Coming to the third argument of the learned senior counsel on behalf of the appellant, what has to be seen is the compromise deed and as to which pigeonhole such deed can possibly be said to fall under Section 2(47) of the Income Tax Act. A perusal of the compromise deed shows that the agreement to sell and the Power of Attorney are confirmed, and a sum of Rs.50 lakhs is reduced from the total consideration of Rs.6.10 crores. Clause 3 of the said compromise deed confirms that the party of the first part, this is the appellant, has received a sum of Rs.4,68,25,644/- out of the agreed sale consideration. Clause 4 records that the balance Rs.1.05 crores towards full and final settlement in respect of the Agreement entered into would then be paid by 7 post-dated cheques. Clause 5 then states that the last two cheques will be presented only upon due receipt of the discharge certificate from one M/s. Pioneer Homes. 21. In this context, it is important to advert to a finding of the ITAT, which was that all the cheques mentioned in the compromise deed have, in fact, been encashed. 22. This being the case, it is clear that the assessees rights in the said immovable property were extinguished on the receipt of the last cheque, as also that the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question. 23. The pigeonhole, therefore, that would support the orders under appeal would be Section 2(47)(ii) and (vi) of the I.T. Act in the facts of the present case.
### Response:
0
### Explanation:
14. On a reading of the agreement to sell dated 15.05.1998, what is clear is that both the parties are entitled to specific performance.16. Clause 16 would, therefore, lead to the position that a license was given to another upon the land for the purpose of developing the land into flats and selling the same. Such license cannot be said to be possession within the meaning of Section 53A, which is a legal concept, and which denotes control over the land and not actual physical occupation of the land. This being the case, Section 53A of the T.P. Act cannot possibly be attracted to the facts of this case for this reason alone19. Given the test stated in paragraph 25 of the aforesaid judgment, it is clear that the expression enabling the enjoyment of must take colour from the earlier expression transferring, so that it can be stated on the facts of a case, that a de facto transfer of immovable property has, in fact, taken place making it clear that the de facto owners rights stand extinguished. It is clear that as on the date of the agreement to sell, the owners rights were completely intact both as to ownership and to possession even de facto, so that this Section equally, cannot be said to be attracted20. Coming to the third argument of the learned senior counsel on behalf of the appellant, what has to be seen is the compromise deed and as to which pigeonhole such deed can possibly be said to fall under Section 2(47) of the Income Tax Act. A perusal of the compromise deed shows that the agreement to sell and the Power of Attorney are confirmed, and a sum of Rs.50 lakhs is reduced from the total consideration of Rs.6.10 crores. Clause 3 of the said compromise deed confirms that the party of the first part, this is the appellant, has received a sum of Rs.4,68,25,644/- out of the agreed sale consideration. Clause 4 records that the balance Rs.1.05 crores towards full and final settlement in respect of the Agreement entered into would then be paid by 7 post-dated cheques. Clause 5 then states that the last two cheques will be presented only upon due receipt of the discharge certificate from one M/s. Pioneer Homes21. In this context, it is important to advert to a finding of the ITAT, which was that all the cheques mentioned in the compromise deed have, in fact, been encashed22. This being the case, it is clear that the assessees rights in the said immovable property were extinguished on the receipt of the last cheque, as also that the compromise deed could be stated to be a transaction which had the effect of transferring the immovable property in question23. The pigeonhole, therefore, that would support the orders under appeal would be Section 2(47)(ii) and (vi) of the I.T. Act in the facts of the present case.
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Satyabrata Biswas Vs. Kalyan Kumar Kisku | A. K. Ghosh was a tenant is itself in dispute. 22. Secondly, whether A. K. Ghosh had a right to create a sub-tenancy is again in dispute. 23. Thirdly, more than above all this, when the right of sub-tenancy was sought to be founded on an agreement dated 10th May, 1993, it should have occurred to the learned Single Judge that such a creation of sub-tenancy was clearly violative of the order of status quo passed as early as 15th of September, 1988. It is extremely unfortunate that the learned Judge had not even cared to bestow thought and entertained an oral application at the instance of a person who had nothing to do till then with the application for contempt. He had not even taken out an application to implead himself as a party. If mere oral mention could be enough to direct a Special Officer to remove the padlock, one has to put aside the law of procedure altogether and render justice as the court conceives, conferring benedictions on parties who cannot have any legal basis to found their claim. 24. Still worse was to follow. When the appellants before us complained of this direction by the learned Single Judge to remove the padlock, the Division Bench followed a novel procedure. We have already extracted its finding in relation to the validity of sub-tenancy. Having held in no uncertain terms whether or not the Somani Builders is lawfully a sub-tenant, cannot be decided in the proceeding, it should have thrown out the plea of Somani Builders. Why then the Joint Receivers were directed to allow Somani Builders to occupy the premises for the purpose of carrying on business passes our comprehension ? The status quo is not a status quo as on the date of inventory but the status quo as of 15.9.88. The order of that date states unequivocally ``status quo as of today. That could only mean 15th September, 88 and there cannot be the state of affairs after five years of that order. 25. In Whartons Law Lexicon 14th Edition at page 951 Status Quo has been defined as meaning : ``The existing state of things at any given date ; e.g., Status quo ante bellum, the state of things before the war. 26. According to Blacks Law Dictionary 6th Edition the relevant passage occurs :- ``The existing state of things at any given date. Status quo ante bellum, the state of things before the law. ``Status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy. 27. This Court in Bharat Coking Coal Ltd. v. State of Bihar, (supra) stated thus : ``According to the ordinarily legal connotation, the term `status quo implies the existing state of things at any given point of time. 28. When the removal of padlock was complained of in the appeal filed by the appellants herein, strangely delivery of possession was ordered. The said order clearly betrays lack of understanding as to the scope or contempt jurisdiction and proceeds upon a total misappreciation of the facts. We are obliged to remark that both the learned Single Judge as well as the Division Bench had not kept themselves within the precincts of contempt jurisdiction. Instead peculiar orders have come to be passed totally alien to the issue and disregardful of the facts. The orders of the learned Single Judge and that of the Division Bench cannot stand even a moments scrutiny. Therefore, it is idle to contend that no interference is warranted under Article 136. 29. Apart from the fact whether A. K. Ghosh had a legal authority to sub- lease or not it was not open to him to grant a sub-lease in violation of the order. It is no use contending as Mr. Chidambaram, learned counsel for the respondents does, that there was a bar to such a sub-lease under the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this was done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim : `Actus Curiae Neminem Gravabit has no application at all to the facts of this case when in violation of status quo order a sub- tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15.9.1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with inpunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub-tenancy is recognised, how is status quo as of 15.9.1988 maintained ? Hence, the grant of sub-lease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sub- lease are clearly illegal. 30. We hereby set aside the order of the Division Bench dated 5.10.1993 and the orders of the learned Single Judge dated 20.7.1993 (except that part relating to appointment of Special Officer, 4.8.93, 6.8.93, 11.8.93, 16.8.1993 and 20.8.1993 as well). 31. The parties are relegated to the position as on 15.9.1988. Somani Builders are hereby directed to deliver vacant possession to the Special Officer within one month from today. The learned Single Judge is directed to dispose of the application for contempt in its proper perspective confining himself to contempt jurisdiction. The Special Officer shall continue to be in possession till the disposal of contempt proceedings. This direction becomes necessary in view of the scramble for possession. | 1[ds]14. First of all, he had no authority to grant a tenancy. Even otherwise, since status quo order had been passed by the Court on 15th September, 1988 the creation ofunder the agreement dated 10.5.93 would not confer Somani Builders with any right whatever. In contempt jurisdiction an utter stranger to the proceedings cannot be put in possession, while the sole question was whether the parties had violated the order dated 15th September, 1988. Therefore, the order is liable to be set aside.Apart from the fact whether A. K. Ghosh had a legal authority to sublease or not it was not open to him to grant ain violation of the order. It is no use contending as Mr. Chidambaram, learned counsel for the respondents does, that there was a bar to such aunder the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this was done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim : `Actus Curiae Neminem Gravabit has no application at all to the facts of this case when in violation of status quo order a subtenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15.9.1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with inpunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right ofis recognised, how is status quo as of 15.9.1988 maintained ? Hence, the grant ofis contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal. 30. We hereby set aside the order of the Division Bench dated 5.10.1993 and the orders of the learned Single Judge dated 20.7.1993 (except that part relating to appointment of Special Officer, 4.8.93, 6.8.93, 11.8.93, 16.8.1993 and 20.8.1993 as well). 31. The parties are relegated to the position as on 15.9.1988. Somani Builders are hereby directed to deliver vacant possession to the Special Officer within one month from today. The learned Single Judge is directed to dispose of the application for contempt in its proper perspective confining himself to contempt jurisdiction. The Special Officer shall continue to be in possession till the disposal of contempt proceedings. This direction becomes necessary in view of the scramble for possession. | 1 | 4,709 | 528 | ### 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:
A. K. Ghosh was a tenant is itself in dispute. 22. Secondly, whether A. K. Ghosh had a right to create a sub-tenancy is again in dispute. 23. Thirdly, more than above all this, when the right of sub-tenancy was sought to be founded on an agreement dated 10th May, 1993, it should have occurred to the learned Single Judge that such a creation of sub-tenancy was clearly violative of the order of status quo passed as early as 15th of September, 1988. It is extremely unfortunate that the learned Judge had not even cared to bestow thought and entertained an oral application at the instance of a person who had nothing to do till then with the application for contempt. He had not even taken out an application to implead himself as a party. If mere oral mention could be enough to direct a Special Officer to remove the padlock, one has to put aside the law of procedure altogether and render justice as the court conceives, conferring benedictions on parties who cannot have any legal basis to found their claim. 24. Still worse was to follow. When the appellants before us complained of this direction by the learned Single Judge to remove the padlock, the Division Bench followed a novel procedure. We have already extracted its finding in relation to the validity of sub-tenancy. Having held in no uncertain terms whether or not the Somani Builders is lawfully a sub-tenant, cannot be decided in the proceeding, it should have thrown out the plea of Somani Builders. Why then the Joint Receivers were directed to allow Somani Builders to occupy the premises for the purpose of carrying on business passes our comprehension ? The status quo is not a status quo as on the date of inventory but the status quo as of 15.9.88. The order of that date states unequivocally ``status quo as of today. That could only mean 15th September, 88 and there cannot be the state of affairs after five years of that order. 25. In Whartons Law Lexicon 14th Edition at page 951 Status Quo has been defined as meaning : ``The existing state of things at any given date ; e.g., Status quo ante bellum, the state of things before the war. 26. According to Blacks Law Dictionary 6th Edition the relevant passage occurs :- ``The existing state of things at any given date. Status quo ante bellum, the state of things before the law. ``Status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy. 27. This Court in Bharat Coking Coal Ltd. v. State of Bihar, (supra) stated thus : ``According to the ordinarily legal connotation, the term `status quo implies the existing state of things at any given point of time. 28. When the removal of padlock was complained of in the appeal filed by the appellants herein, strangely delivery of possession was ordered. The said order clearly betrays lack of understanding as to the scope or contempt jurisdiction and proceeds upon a total misappreciation of the facts. We are obliged to remark that both the learned Single Judge as well as the Division Bench had not kept themselves within the precincts of contempt jurisdiction. Instead peculiar orders have come to be passed totally alien to the issue and disregardful of the facts. The orders of the learned Single Judge and that of the Division Bench cannot stand even a moments scrutiny. Therefore, it is idle to contend that no interference is warranted under Article 136. 29. Apart from the fact whether A. K. Ghosh had a legal authority to sub- lease or not it was not open to him to grant a sub-lease in violation of the order. It is no use contending as Mr. Chidambaram, learned counsel for the respondents does, that there was a bar to such a sub-lease under the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this was done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim : `Actus Curiae Neminem Gravabit has no application at all to the facts of this case when in violation of status quo order a sub- tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15.9.1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with inpunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub-tenancy is recognised, how is status quo as of 15.9.1988 maintained ? Hence, the grant of sub-lease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sub- lease are clearly illegal. 30. We hereby set aside the order of the Division Bench dated 5.10.1993 and the orders of the learned Single Judge dated 20.7.1993 (except that part relating to appointment of Special Officer, 4.8.93, 6.8.93, 11.8.93, 16.8.1993 and 20.8.1993 as well). 31. The parties are relegated to the position as on 15.9.1988. Somani Builders are hereby directed to deliver vacant possession to the Special Officer within one month from today. The learned Single Judge is directed to dispose of the application for contempt in its proper perspective confining himself to contempt jurisdiction. The Special Officer shall continue to be in possession till the disposal of contempt proceedings. This direction becomes necessary in view of the scramble for possession.
### Response:
1
### Explanation:
14. First of all, he had no authority to grant a tenancy. Even otherwise, since status quo order had been passed by the Court on 15th September, 1988 the creation ofunder the agreement dated 10.5.93 would not confer Somani Builders with any right whatever. In contempt jurisdiction an utter stranger to the proceedings cannot be put in possession, while the sole question was whether the parties had violated the order dated 15th September, 1988. Therefore, the order is liable to be set aside.Apart from the fact whether A. K. Ghosh had a legal authority to sublease or not it was not open to him to grant ain violation of the order. It is no use contending as Mr. Chidambaram, learned counsel for the respondents does, that there was a bar to such aunder the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this was done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim : `Actus Curiae Neminem Gravabit has no application at all to the facts of this case when in violation of status quo order a subtenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on 15.9.1988 is what the Court is concerned with. Such an order cannot be circumvented by parties with inpunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right ofis recognised, how is status quo as of 15.9.1988 maintained ? Hence, the grant ofis contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal. 30. We hereby set aside the order of the Division Bench dated 5.10.1993 and the orders of the learned Single Judge dated 20.7.1993 (except that part relating to appointment of Special Officer, 4.8.93, 6.8.93, 11.8.93, 16.8.1993 and 20.8.1993 as well). 31. The parties are relegated to the position as on 15.9.1988. Somani Builders are hereby directed to deliver vacant possession to the Special Officer within one month from today. The learned Single Judge is directed to dispose of the application for contempt in its proper perspective confining himself to contempt jurisdiction. The Special Officer shall continue to be in possession till the disposal of contempt proceedings. This direction becomes necessary in view of the scramble for possession.
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Commissioner of Wealth Tax, Bihar, Patna Vs. Maharaja Kumar Kamal Singh | 40 years. That is a factor which has to be taken into account and discounted but the other vital factor affecting the value of the asset namely, the liability and the obligation to have the amount deducted under Section 4 (c) of the Bihar Land Reforms Act has not been taken into account at all. In case where bonds have been issued after taking into consideration the liability under Section 4 (c) of the Bihar Land Reforms Act or where liability under Section 4 (c) has been determined and deducted from the compensation, in such a case no question of deduction on account of the arrears of agricultural income-tax mentioned in Section 4 (c) of the Bihar Land Reforms Act would arise but in all other cases, this is a liability, a hazard, a factor, a clog or a jeopardy which detracts from the value of the asset and in estimating the value which one has to do on the basis which a willing purchaser would pay for buying the said asset in open market, the Wealth-tax Officer must take that factor into account, otherwise it would be an unreal estimate. This chance and hazard must influence all buyers.There are two different stages. One is estimation of the value of the assets and the other deduction therefrom the debts owed by the assessee. In last mentioned stage, surely in view of the provisions of Section 2 (m), the debt in respect of income-tax which is outstanding for more than 12 months cannot be deducted. But in estimating the value of the assets, this possibility, which is indeed in the nature of an obligation of the Compensation officer, is a hazard, a clog or a hindrance which If a proper estimate is made under Section 7(1) by the Wealth-tax Officer, he has to take into consideration. It is not a question of deducting the debt but a question of estimation of the value of the asset in question.10. Learned counsel for the assessee drew our attention to the decision of this Court in the case of Standard Mills Co. Ltd. v. Commissioner of Wealth-tax, Bombay(1) and to Bench decision of the Bombay High Court in the case of Commissioner of Wealth-tax Bombay City II v. Purshottam N. Amersey and Another(2). These decisions, in our opinion, are not relevant at all.. Reliance was also placed on a decision of this Court in the case of Pandit Lakshmi Kant Jha v. Commissioner of Wealth-tax, Bihar and Orissa(3). This question was not in issue but it was reiterated that under the Bihar Land Reforms Act, 1950 as soon as the estate or a tenure of a proprietor or tenure holder vested in the State, he became entitled to receive compensation. The right to receive compensation from the State was a valuable right. The fact that compensation was not payable immediately and its payment might be spread over a period of 40 years would be relevant only for the purpose of evaluating his right of compensation. The right to receive compensation even though the date of payment is deferred is property and constituted an asset for the purpose of Wealth Tax Act.We are clearly of the opinion that the possibility of deduction of the dues of the assessee for agricultural income tax under Section 4 (c) of the Bihar Land Reforms Act from the compensation money is a factor that affects price or value of the compensation money receivable by the assessee under the Bihar Land Reforms Act and until it has been finally determined that no arrears of agricultural income tax is payable at all, will remain a hindrance and the value of which must be quantified and deducted before a proper estimate of the value of the asset money receivable by the assessee is prepared. Except in cases where the question of arrears of agricultural income tax is settled, this is a factor which goes to the diminution of the value of the asset. To what extent that would affect the value of the asset is a matter of quantification. We are not concerned with that question of actual quantification. We are concerned with the question whether that factor is a matter which has to be taken into consideration in estimating the value of the asset in question. We are of the opinion that it is a factor certainly to be taken into consideration in estimating what..it would fetch in the open market. It is not a case as was contended on behalf of the revenue, that this was permitting indirectly deduction of debt which was prohibited by the legislation. Section 7 and 2 (m) of the Act though must be read harmoniously apply to two different stages. Section 7 is the estimation of the market value of the asset, section 2 (m) enjoins that from the same the debt owed by the assessee to be deducted. Such debt owed would be computed in accordance with Section 2 (m) but the estimation of the value of asset is on the basis which such asset would fetch in the open market taking into consideration the view point of a willing purchaser.We must mention that our attention was drawn to certain other provisions of the Income-tax Act and, also Wealth Tax Act and it was contended that any debt which is excluded under the provisions of Wealth Tax Act cannot be deducted and on the same principle a debt which is not deductible because of provision of Section 2 (m) should not be taken into consideration in estimating the value of an asset. We are unable to accept this position in the facts and circumstances of this case.11. Our attention was drawn to certain other rules namely, Rule 34 of the Bihar Land Reforms Rules, 1951. We do not think it is material to discuss these rules any further.12. In the view we have taken, we are of the opinion that the Full Bench of the Patna High Court was right in its conclusion. Th | 0[ds]The right to receive compensation from the State was a valuable right. The fact that compensation was not payable immediately and its payment might be spread over a period of 40 years would be relevant only for the purpose of evaluating his right of compensation. The right to receive compensation even though the date of payment is deferred is property and constituted an asset for the purpose of Wealth Tax Act.We are clearly of the opinion that the possibility of deduction of the dues of the assessee for agricultural income tax under Section 4 (c) of the Bihar Land Reforms Act from the compensation money is a factor that affects price or value of the compensation money receivable by the assessee under the Bihar Land Reforms Act and until it has been finally determined that no arrears of agricultural income tax is payable at all, will remain a hindrance and the value of which must be quantified and deducted before a proper estimate of the value of the asset money receivable by the assessee is prepared. Except in cases where the question of arrears of agricultural income tax is settled, this is a factor which goes to the diminution of the value of the asset. To what extent that would affect the value of the asset is a matter of quantification. We are not concerned with that question of actual quantification. We are concerned with the question whether that factor is a matter which has to be taken into consideration in estimating the value of the asset in question. We are of the opinion that it is a factor certainly to be taken into consideration in estimating what..it would fetch in the open market. It is not a case as was contended on behalf of the revenue, that this was permitting indirectly deduction of debt which was prohibited by the legislation. Section 7 and 2 (m) of the Act though must be read harmoniously apply to two different stages. Section 7 is the estimation of the market value of the asset, section 2 (m) enjoins that from the same the debt owed by the assessee to be deducted. Such debt owed would be computed in accordance with Section 2 (m) but the estimation of the value of asset is on the basis which such asset would fetch in the open market taking into consideration the view point of a willing purchaser.We must mention that our attention was drawn to certain other provisions of the Income-tax Act and, also Wealth Tax Act and it was contended that any debt which is excluded under the provisions of Wealth Tax Act cannot be deducted and on the same principle a debt which is not deductible because of provision of Section 2 (m) should not be taken into consideration in estimating the value of an asset. We are unable to accept this position in the facts and circumstances of thisattention was drawn to certain other rules namely, Rule 34 of the Bihar Land Reforms Rules, 1951. We do not think it is material to discuss these rules any further.Learned counsel for the assessee drew our attention to the decision of this Court in the case of Standard Mills Co. Ltd. v. Commissioner ofBombay(1) and to Bench decision of the Bombay High Court in the case of Commissioner ofBombay City II v. Purshottam N. Amersey and Another(2). These decisions, in our opinion, are not relevant at all.. Reliance was also placed on a decision of this Court in the case of Pandit Lakshmi Kant Jha v. Commissioner ofBihar and Orissa(3). This question was not in issue but it was reiterated that under the Bihar Land Reforms Act, 1950 as soon as the estate or a tenure of a proprietor or tenure holder vested in the State, he became entitled to receive compensation.The right to receive compensation from the State was a valuable right. The fact that compensation was not payable immediately and its payment might be spread over a period of 40 years would be relevant only for the purpose of evaluating his right of compensation. The right to receive compensation even though the date of payment is deferred is property and constituted an asset for the purpose of Wealth Tax Act.We are clearly of the opinion that the possibility of deduction of the dues of the assessee for agricultural income tax under Section 4 (c) of the Bihar Land Reforms Act from the compensation money is a factor that affects price or value of the compensation money receivable by the assessee under the Bihar Land Reforms Act and until it has been finally determined that no arrears of agricultural income tax is payable at all, will remain a hindrance and the value of which must be quantified and deducted before a proper estimate of the value of the asset money receivable by the assessee is prepared. Except in cases where the question of arrears of agricultural income tax is settled, this is a factor which goes to the diminution of the value of the asset. To what extent that would affect the value of the asset is a matter of quantification. We are not concerned with that question of actual quantification. We are concerned with the question whether that factor is a matter which has to be taken into consideration in estimating the value of the asset in question. We are of the opinion that it is a factor certainly to be taken into consideration in estimating what..it would fetch in the open market. It is not a case as was contended on behalf of the revenue, that this was permitting indirectly deduction of debt which was prohibited by the legislation. Section 7 and 2 (m) of the Act though must be read harmoniously apply to two different stages. Section 7 is the estimation of the market value of the asset, section 2 (m) enjoins that from the same the debt owed by the assessee to be deducted. Such debt owed would be computed in accordance with Section 2 (m) but the estimation of the value of asset is on the basis which such asset would fetch in the open market taking into consideration the view point of a willing purchaser.We must mention that our attention was drawn to certain other provisions of theAct and, also Wealth Tax Act and it was contended that any debt which is excluded under the provisions of Wealth Tax Act cannot be deducted and on the same principle a debt which is not deductible because of provision of Section 2 (m) should not be taken into consideration in estimating the value of an asset. We are unable to accept this position in the facts and circumstances of this | 0 | 4,461 | 1,203 | ### Instruction:
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40 years. That is a factor which has to be taken into account and discounted but the other vital factor affecting the value of the asset namely, the liability and the obligation to have the amount deducted under Section 4 (c) of the Bihar Land Reforms Act has not been taken into account at all. In case where bonds have been issued after taking into consideration the liability under Section 4 (c) of the Bihar Land Reforms Act or where liability under Section 4 (c) has been determined and deducted from the compensation, in such a case no question of deduction on account of the arrears of agricultural income-tax mentioned in Section 4 (c) of the Bihar Land Reforms Act would arise but in all other cases, this is a liability, a hazard, a factor, a clog or a jeopardy which detracts from the value of the asset and in estimating the value which one has to do on the basis which a willing purchaser would pay for buying the said asset in open market, the Wealth-tax Officer must take that factor into account, otherwise it would be an unreal estimate. This chance and hazard must influence all buyers.There are two different stages. One is estimation of the value of the assets and the other deduction therefrom the debts owed by the assessee. In last mentioned stage, surely in view of the provisions of Section 2 (m), the debt in respect of income-tax which is outstanding for more than 12 months cannot be deducted. But in estimating the value of the assets, this possibility, which is indeed in the nature of an obligation of the Compensation officer, is a hazard, a clog or a hindrance which If a proper estimate is made under Section 7(1) by the Wealth-tax Officer, he has to take into consideration. It is not a question of deducting the debt but a question of estimation of the value of the asset in question.10. Learned counsel for the assessee drew our attention to the decision of this Court in the case of Standard Mills Co. Ltd. v. Commissioner of Wealth-tax, Bombay(1) and to Bench decision of the Bombay High Court in the case of Commissioner of Wealth-tax Bombay City II v. Purshottam N. Amersey and Another(2). These decisions, in our opinion, are not relevant at all.. Reliance was also placed on a decision of this Court in the case of Pandit Lakshmi Kant Jha v. Commissioner of Wealth-tax, Bihar and Orissa(3). This question was not in issue but it was reiterated that under the Bihar Land Reforms Act, 1950 as soon as the estate or a tenure of a proprietor or tenure holder vested in the State, he became entitled to receive compensation. The right to receive compensation from the State was a valuable right. The fact that compensation was not payable immediately and its payment might be spread over a period of 40 years would be relevant only for the purpose of evaluating his right of compensation. The right to receive compensation even though the date of payment is deferred is property and constituted an asset for the purpose of Wealth Tax Act.We are clearly of the opinion that the possibility of deduction of the dues of the assessee for agricultural income tax under Section 4 (c) of the Bihar Land Reforms Act from the compensation money is a factor that affects price or value of the compensation money receivable by the assessee under the Bihar Land Reforms Act and until it has been finally determined that no arrears of agricultural income tax is payable at all, will remain a hindrance and the value of which must be quantified and deducted before a proper estimate of the value of the asset money receivable by the assessee is prepared. Except in cases where the question of arrears of agricultural income tax is settled, this is a factor which goes to the diminution of the value of the asset. To what extent that would affect the value of the asset is a matter of quantification. We are not concerned with that question of actual quantification. We are concerned with the question whether that factor is a matter which has to be taken into consideration in estimating the value of the asset in question. We are of the opinion that it is a factor certainly to be taken into consideration in estimating what..it would fetch in the open market. It is not a case as was contended on behalf of the revenue, that this was permitting indirectly deduction of debt which was prohibited by the legislation. Section 7 and 2 (m) of the Act though must be read harmoniously apply to two different stages. Section 7 is the estimation of the market value of the asset, section 2 (m) enjoins that from the same the debt owed by the assessee to be deducted. Such debt owed would be computed in accordance with Section 2 (m) but the estimation of the value of asset is on the basis which such asset would fetch in the open market taking into consideration the view point of a willing purchaser.We must mention that our attention was drawn to certain other provisions of the Income-tax Act and, also Wealth Tax Act and it was contended that any debt which is excluded under the provisions of Wealth Tax Act cannot be deducted and on the same principle a debt which is not deductible because of provision of Section 2 (m) should not be taken into consideration in estimating the value of an asset. We are unable to accept this position in the facts and circumstances of this case.11. Our attention was drawn to certain other rules namely, Rule 34 of the Bihar Land Reforms Rules, 1951. We do not think it is material to discuss these rules any further.12. In the view we have taken, we are of the opinion that the Full Bench of the Patna High Court was right in its conclusion. Th
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assessee under the Bihar Land Reforms Act and until it has been finally determined that no arrears of agricultural income tax is payable at all, will remain a hindrance and the value of which must be quantified and deducted before a proper estimate of the value of the asset money receivable by the assessee is prepared. Except in cases where the question of arrears of agricultural income tax is settled, this is a factor which goes to the diminution of the value of the asset. To what extent that would affect the value of the asset is a matter of quantification. We are not concerned with that question of actual quantification. We are concerned with the question whether that factor is a matter which has to be taken into consideration in estimating the value of the asset in question. We are of the opinion that it is a factor certainly to be taken into consideration in estimating what..it would fetch in the open market. It is not a case as was contended on behalf of the revenue, that this was permitting indirectly deduction of debt which was prohibited by the legislation. Section 7 and 2 (m) of the Act though must be read harmoniously apply to two different stages. Section 7 is the estimation of the market value of the asset, section 2 (m) enjoins that from the same the debt owed by the assessee to be deducted. Such debt owed would be computed in accordance with Section 2 (m) but the estimation of the value of asset is on the basis which such asset would fetch in the open market taking into consideration the view point of a willing purchaser.We must mention that our attention was drawn to certain other provisions of the Income-tax Act and, also Wealth Tax Act and it was contended that any debt which is excluded under the provisions of Wealth Tax Act cannot be deducted and on the same principle a debt which is not deductible because of provision of Section 2 (m) should not be taken into consideration in estimating the value of an asset. We are unable to accept this position in the facts and circumstances of thisattention was drawn to certain other rules namely, Rule 34 of the Bihar Land Reforms Rules, 1951. We do not think it is material to discuss these rules any further.Learned counsel for the assessee drew our attention to the decision of this Court in the case of Standard Mills Co. Ltd. v. Commissioner ofBombay(1) and to Bench decision of the Bombay High Court in the case of Commissioner ofBombay City II v. Purshottam N. Amersey and Another(2). These decisions, in our opinion, are not relevant at all.. Reliance was also placed on a decision of this Court in the case of Pandit Lakshmi Kant Jha v. Commissioner ofBihar and Orissa(3). This question was not in issue but it was reiterated that under the Bihar Land Reforms Act, 1950 as soon as the estate or a tenure of a proprietor or tenure holder vested in the State, he became entitled to receive compensation.The right to receive compensation from the State was a valuable right. The fact that compensation was not payable immediately and its payment might be spread over a period of 40 years would be relevant only for the purpose of evaluating his right of compensation. The right to receive compensation even though the date of payment is deferred is property and constituted an asset for the purpose of Wealth Tax Act.We are clearly of the opinion that the possibility of deduction of the dues of the assessee for agricultural income tax under Section 4 (c) of the Bihar Land Reforms Act from the compensation money is a factor that affects price or value of the compensation money receivable by the assessee under the Bihar Land Reforms Act and until it has been finally determined that no arrears of agricultural income tax is payable at all, will remain a hindrance and the value of which must be quantified and deducted before a proper estimate of the value of the asset money receivable by the assessee is prepared. Except in cases where the question of arrears of agricultural income tax is settled, this is a factor which goes to the diminution of the value of the asset. To what extent that would affect the value of the asset is a matter of quantification. We are not concerned with that question of actual quantification. We are concerned with the question whether that factor is a matter which has to be taken into consideration in estimating the value of the asset in question. We are of the opinion that it is a factor certainly to be taken into consideration in estimating what..it would fetch in the open market. It is not a case as was contended on behalf of the revenue, that this was permitting indirectly deduction of debt which was prohibited by the legislation. Section 7 and 2 (m) of the Act though must be read harmoniously apply to two different stages. Section 7 is the estimation of the market value of the asset, section 2 (m) enjoins that from the same the debt owed by the assessee to be deducted. Such debt owed would be computed in accordance with Section 2 (m) but the estimation of the value of asset is on the basis which such asset would fetch in the open market taking into consideration the view point of a willing purchaser.We must mention that our attention was drawn to certain other provisions of theAct and, also Wealth Tax Act and it was contended that any debt which is excluded under the provisions of Wealth Tax Act cannot be deducted and on the same principle a debt which is not deductible because of provision of Section 2 (m) should not be taken into consideration in estimating the value of an asset. We are unable to accept this position in the facts and circumstances of this
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Laxmi Devi Vs. Mohammad Tabbar | For this proposition the High Court held that the notional income of Rs.15,000/- in the Second Schedule was prescribed in the year 1994 while the accident had taken place in the year 2004. The second reason given by the High Court was that even an unskilled labourer, these days, can easily earn Rs.100/- per day and Rs.3,000/- per month and, therefore, the High Court held the income to be Rs.36,000/- per annum and by deducting 1/3rd of the income of the deceased for his personal expenses, the claimants’ dependency was assessed at Rs.24,000/- per annum. However, the High Court reduced the multiplier of 16 applied by the Tribunal to 12. For this action, the High Court relied on the aforementioned judgment in T.N. Transports Corporation’s case. The High Court thus applied the multiplier of 12 instead of 16 and ultimately the High Court arrived at the figure of Rs.2,88,000/- and to this the other compensation on account of funeral expenses, loss of consortium to the widow and loss of estate, which were granted by the Tribunal, were added and the total compensation of Rs.2,97,000/- was awarded by the High Court. The claimants, dissatisfied with this finding, have filed this appeal before us.5. Learned counsel for the claimants urged that the High Court erred in applying the multiplier of 12 particularly when the deceased was only 35 years old and none of the claimants was more than that age. Learned counsel further urged that the deceased had left behind four minor daughters along with a young wife. It was urged that considering the fact that only 6% interest was granted, the multiplier of 12 was not a proper multiplier and the multiplier as found by the Tribunal should have been retained. As against this, the learned counsel for the Insurance Company supported the order of the High Court and claimed that in fact the compensation granted by the High Court was on higher side.6. We have considered the contentions as well as the law laid down in T.N. Transport Corporation’s case (supra). In the said decision this Court, after considering the rulings in G.M. Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 1760, U.P. SRTC v. Trilok Chandra [(1996) 4 SCC 362] as also the other English cases such as Davies v. Powell Duffryn Associated Collieries Ltd. [(1942) 1 All ER 657 (HL)] and Nance v. British Columbia Electric Rly. Co. Ltd., [(1951) 2 All ER 448] observed in para 12 that: “The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.” This Court then observed in para 16 as under: “In Susamma Thomas case it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra case appears to be appropriate.” It was also further observed by this Court that: “The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.” In para 17 of the judgment this Court came to the conclusion that the appropriate multiplier would be 12 and not 16 in case of a person where the deceased was 38 years old and the interest was granted at 9% per annum from the date of claim petition. The Court, therefore, reduced the multiplier from 16 to 12 and also reduced the rate of interest to 7.5% per annum. It seems that based on that findings the High Court has reduced the multiplier in the present case.7. Considering the above principles in this case, we must say that the High Court has definitely erred in bringing down the multiplier to 12. It is to be seen that in this case the deceased was 35 years old. The claimants are his wife and four minor daughters. Even as per the Second Schedule the multiplier in case of the persons between 35 to 40 years is 16. In the present case the rate of interest granted is only 6% considering the general rate of interest prevalent in 2004. In our opinion, therefore, the proper multiplier would be 14 as the value of the notional income has been increased. It was nobody’s case that the deceased was not working at all. His wife has entered in the witness box and had asserted that he earned Rs.140/- per day. Even if we ignore the exaggeration, the figure arrived at by the High Court at Rs.100/- per day and Rs.3,000/- per month appears to be correct. However, considering that the claimant would get only 6% interest, we would chose to grant the multiplier of 14 instead of 12. Accordingly the notional income as applied would be Rs.24,000 x 14 = Rs.3,36,000/- and to this will be added the other compensation like Rs.2,000/- as funeral expenses, Rs.5,000/- for the loss of consortium to the widow and Rs.2,000/- for the loss of estate. The claimants would, therefore, be entitled to a sum of Rs.3,45,000/-. The said sum shall carry the interest at the rate of 6% per annum from the date of claim petition.8. In view of the above, the | 1[ds]We have considered the contentions as well as the law laid down in T.N. Transportcase (supra). In the said decision this Court, after considering the rulings in G.M. Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 1760, U.P. SRTC v. Trilok Chandra [(1996) 4 SCC 362] as also the other English cases such as Davies v. Powell Duffryn Associated Collieries Ltd. [(1942) 1 All ER 657 (HL)] and Nance v. British Columbia Electric Rly. Co. Ltd., [(1951) 2 All ER 448] observed in para 12multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected toCourt then observed in para 16 asSusamma Thomas case it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra case appears to bewas also further observed by this Courthighest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirementpara 17 of the judgment this Court came to the conclusion that the appropriate multiplier would be 12 and not 16 in case of a person where the deceased was 38 years old and the interest was granted at 9% per annum from the date of claim petition. The Court, therefore, reduced the multiplier from 16 to 12 and also reduced the rate of interest to 7.5% per annum. It seems that based on that findings the High Court has reduced the multiplier in the present case.7. Considering the above principles in this case, we must say that the High Court has definitely erred in bringing down the multiplier to 12. It is to be seen that in this case the deceased was 35 years old. The claimants are his wife and four minor daughters. Even as per the Second Schedule the multiplier in case of the persons between 35 to 40 years is 16. In the present case the rate of interest granted is only 6% considering the general rate of interest prevalent in 2004. In our opinion, therefore, the proper multiplier would be 14 as the value of the notional income has been increased. It wascase that the deceased was not working at all. His wife has entered in the witness box and had asserted that he earned Rs.140/- per day. Even if we ignore the exaggeration, the figure arrived at by the High Court at Rs.100/- per day and Rs.3,000/- per month appears to be correct. However, considering that the claimant would get only 6% interest, we would chose to grant the multiplier of 14 instead of 12. Accordingly the notional income as applied would be Rs.24,000 x 14 = Rs.3,36,000/- and to this will be added the other compensation like Rs.2,000/- as funeral expenses, Rs.5,000/- for the loss of consortium to the widow and Rs.2,000/- for the loss of estate. The claimants would, therefore, be entitled to a sum of Rs.3,45,000/-. The said sum shall carry the interest at the rate of 6% per annum from the date of claim petition. | 1 | 1,640 | 725 | ### Instruction:
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For this proposition the High Court held that the notional income of Rs.15,000/- in the Second Schedule was prescribed in the year 1994 while the accident had taken place in the year 2004. The second reason given by the High Court was that even an unskilled labourer, these days, can easily earn Rs.100/- per day and Rs.3,000/- per month and, therefore, the High Court held the income to be Rs.36,000/- per annum and by deducting 1/3rd of the income of the deceased for his personal expenses, the claimants’ dependency was assessed at Rs.24,000/- per annum. However, the High Court reduced the multiplier of 16 applied by the Tribunal to 12. For this action, the High Court relied on the aforementioned judgment in T.N. Transports Corporation’s case. The High Court thus applied the multiplier of 12 instead of 16 and ultimately the High Court arrived at the figure of Rs.2,88,000/- and to this the other compensation on account of funeral expenses, loss of consortium to the widow and loss of estate, which were granted by the Tribunal, were added and the total compensation of Rs.2,97,000/- was awarded by the High Court. The claimants, dissatisfied with this finding, have filed this appeal before us.5. Learned counsel for the claimants urged that the High Court erred in applying the multiplier of 12 particularly when the deceased was only 35 years old and none of the claimants was more than that age. Learned counsel further urged that the deceased had left behind four minor daughters along with a young wife. It was urged that considering the fact that only 6% interest was granted, the multiplier of 12 was not a proper multiplier and the multiplier as found by the Tribunal should have been retained. As against this, the learned counsel for the Insurance Company supported the order of the High Court and claimed that in fact the compensation granted by the High Court was on higher side.6. We have considered the contentions as well as the law laid down in T.N. Transport Corporation’s case (supra). In the said decision this Court, after considering the rulings in G.M. Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 1760, U.P. SRTC v. Trilok Chandra [(1996) 4 SCC 362] as also the other English cases such as Davies v. Powell Duffryn Associated Collieries Ltd. [(1942) 1 All ER 657 (HL)] and Nance v. British Columbia Electric Rly. Co. Ltd., [(1951) 2 All ER 448] observed in para 12 that: “The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.” This Court then observed in para 16 as under: “In Susamma Thomas case it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra case appears to be appropriate.” It was also further observed by this Court that: “The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.” In para 17 of the judgment this Court came to the conclusion that the appropriate multiplier would be 12 and not 16 in case of a person where the deceased was 38 years old and the interest was granted at 9% per annum from the date of claim petition. The Court, therefore, reduced the multiplier from 16 to 12 and also reduced the rate of interest to 7.5% per annum. It seems that based on that findings the High Court has reduced the multiplier in the present case.7. Considering the above principles in this case, we must say that the High Court has definitely erred in bringing down the multiplier to 12. It is to be seen that in this case the deceased was 35 years old. The claimants are his wife and four minor daughters. Even as per the Second Schedule the multiplier in case of the persons between 35 to 40 years is 16. In the present case the rate of interest granted is only 6% considering the general rate of interest prevalent in 2004. In our opinion, therefore, the proper multiplier would be 14 as the value of the notional income has been increased. It was nobody’s case that the deceased was not working at all. His wife has entered in the witness box and had asserted that he earned Rs.140/- per day. Even if we ignore the exaggeration, the figure arrived at by the High Court at Rs.100/- per day and Rs.3,000/- per month appears to be correct. However, considering that the claimant would get only 6% interest, we would chose to grant the multiplier of 14 instead of 12. Accordingly the notional income as applied would be Rs.24,000 x 14 = Rs.3,36,000/- and to this will be added the other compensation like Rs.2,000/- as funeral expenses, Rs.5,000/- for the loss of consortium to the widow and Rs.2,000/- for the loss of estate. The claimants would, therefore, be entitled to a sum of Rs.3,45,000/-. The said sum shall carry the interest at the rate of 6% per annum from the date of claim petition.8. In view of the above, the
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We have considered the contentions as well as the law laid down in T.N. Transportcase (supra). In the said decision this Court, after considering the rulings in G.M. Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 1760, U.P. SRTC v. Trilok Chandra [(1996) 4 SCC 362] as also the other English cases such as Davies v. Powell Duffryn Associated Collieries Ltd. [(1942) 1 All ER 657 (HL)] and Nance v. British Columbia Electric Rly. Co. Ltd., [(1951) 2 All ER 448] observed in para 12multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected toCourt then observed in para 16 asSusamma Thomas case it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra case appears to bewas also further observed by this Courthighest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirementpara 17 of the judgment this Court came to the conclusion that the appropriate multiplier would be 12 and not 16 in case of a person where the deceased was 38 years old and the interest was granted at 9% per annum from the date of claim petition. The Court, therefore, reduced the multiplier from 16 to 12 and also reduced the rate of interest to 7.5% per annum. It seems that based on that findings the High Court has reduced the multiplier in the present case.7. Considering the above principles in this case, we must say that the High Court has definitely erred in bringing down the multiplier to 12. It is to be seen that in this case the deceased was 35 years old. The claimants are his wife and four minor daughters. Even as per the Second Schedule the multiplier in case of the persons between 35 to 40 years is 16. In the present case the rate of interest granted is only 6% considering the general rate of interest prevalent in 2004. In our opinion, therefore, the proper multiplier would be 14 as the value of the notional income has been increased. It wascase that the deceased was not working at all. His wife has entered in the witness box and had asserted that he earned Rs.140/- per day. Even if we ignore the exaggeration, the figure arrived at by the High Court at Rs.100/- per day and Rs.3,000/- per month appears to be correct. However, considering that the claimant would get only 6% interest, we would chose to grant the multiplier of 14 instead of 12. Accordingly the notional income as applied would be Rs.24,000 x 14 = Rs.3,36,000/- and to this will be added the other compensation like Rs.2,000/- as funeral expenses, Rs.5,000/- for the loss of consortium to the widow and Rs.2,000/- for the loss of estate. The claimants would, therefore, be entitled to a sum of Rs.3,45,000/-. The said sum shall carry the interest at the rate of 6% per annum from the date of claim petition.
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P.V. Ayyappa Reddiar Vs. Ayyappan Pillai Janardhanan Pillai & Another | the first defendant and that the appellant has produced, Ex. P-2. The claim of the appellant is that Ex. P-2, the Stridhanakuri, was given to him by the first defendant at time when Ex. P-1 was executed and therefore Ex. D-2 is an ante-dated document. It is true that the plaintiff claims to have been given the original Stridhanakuri Ex. P-2 and it is also true that he has produced the same; but it will be seen that there is no reference in Ex. P-1 to the first defendant having handed over the original document of title to the plaintiff. Ex. P-1 has been registered as document No. 4286 of 1081 (M.E.) on the file of the Sub-Registrar, Quilon, whereas the number of the document is given in Ex. P-1 as 4442 of 1081 (M.E.). If really the plaintiff had Ex. P-2 at the time when Ex. P-1 was written, the wrong number given for the document is inexplicable.21. Further the trial Court in holding in favour of the plaintiff has placed considerable reliance on the fact that Ex. P-2 was produced by him and it has proceeded on the basis that the defendants have no answer as to how the plaintiff got the document Ex. P-2.22. Apart from the features, pointed out by us earlier, which will show that the plaintiff could not have got Ex. P-2 at the time of the agreement, there is a further circumstance to show that even the first defendant was not in possession of Ex. P-2 on the date. of Ex. P-1, i.e., on March 29, 1959. We have already referred to the usufructuary mortgage Ex. P-16 executed by the first defendant on January 8, 1957. We have also adverted to the recitals in the said document that Ex. P-2 Stridhanakuri being document No. 4286 of 1081 (M.E.) has been lost and as such the original title deed was not being given to the mortgagee. P.W. 8 has given an explanation as to how it has gone out of the possession of the first defendant and the High Court has accepted his explanation. No doubt it is a mystery as to how the plaintiff got Ex. P-2, but the evidence clearly shows that the first defendant could not have given Ex. P-2 to the plaintiff at the time of Ex. P-1. The conduct of the plaintiff in getting Ex. P-2 is rather very suspicious. The trial Court has merely proceeded on the basis that there is no explanation forthcoming from the defendant as to how the plaintiff got possession of Ex. P-2. This finding was arrived at by the trial Court without reference to the recitals in Ex. P-16, the wrong registration number in Ex. P-1 and the explanation given by P.W. 8 with reference to Ex. P-2. Such a finding was properly considered by the High Court to be erroneous.23. Another circumstance pointed out to us on behalf of the appellant is that Ex. D-2 has been written by a person, who is not the usual document writer of the second defendant. It is pointed out that D.W. 2. is the usual document Writer for the second defendant but Ex. D-2 has been written by D.W. 3, who was an assistant of D.W. 2 This does not advance the case of the appellant in any manner. D.W. 3 admittedly was working as an assistant under D.W. 2, D.W. 3 was also a licensee under the Document Writers Licensing Rules. In fact even the sale deed Ex. D-3 has been written by him. D.W. 2 has given evidence to the effect that he was advising D.W. 3 in the preparation of these documents.24. The last circumstance pointed out to us is that P.W. 8 is an attestor to both Ex. P-1 and Ex. D-2, P.W. 8 is the son-in-law of the first defendant and he must managed to bring into existence Ex. D-2 by ante-dating the same. It is no doubt true that P.W. 8 is an attestor to both Ex. P-1 and Ex. D-2, but he has given evidence on the side of the plaintiff and he has also been cross-examined by the plaintiff when the answer given by him were not to the plaintiffs liking. P.W. 8 has given evidence to the effect that Ex. D-2 was executed on March 26, 1959. On coming to know about this agreement, his nephew P.W. 5, who was working with the plaintiff and the son of the plaintiff contacted him and raised doubts in his mind about the second defendant completing the purchase. He has further stated that in case the second defendant does not complete the purchase, the plaintiff was prepared to buy the same and for that purpose he got the agreement Ex. P-1 executed in his favour. He has further deposed that if the second defendant completes the purchase, the advance of Rs. 1, 001/- received under Ex. P-1 was to be returned to the plaintiff. In view of the fact that P.W. 8 is an attestor to both the documents, it is but natural that his evidence should be approached with great caution. But having gone through his evidence and the answers given by him, we are of the opinion that the High Court was justified in acting upon his evidence regarding the circumstances under which Ex. P-1 came to be executed, specially when the answers given by the witness have been left unchallenged in further cross examination by the plaintiff. It is really on the basis of this evidence by P.W. 8 that the High Court, while accepting the truth of the execution of Ex. P-1 has held that it was intended to have effect only if the second defendant did not complete the transaction of purchase as per Ex. D-2.25. Having considered the entire matter, we hold that none of the circumstances pointed out above, is of any assistance to the appellant to dislodge the finding arrived at by the High Court in favour of the second defendant. | 0[ds]On a consideration of the various aspects presented before us, we are satisfied that the decision of the High Court does not call for any interference.14. As pointed out by Mr. Subramonia Ayyar, it is no doubt true that there is no specific pleading by any party that Ex.is a contingent contract, but when the High Court was considering the competing claim of two parties claiming under two separate agreements and when the High Court was upholding the truth of the execution of the two agreements, there is no error committed by the High Court in discussing the circumstances under which Ex.came to be executed. It was in considering such a question that the High Court has held that the plaintiff got Ex.executed in his favour with full knowledge of the execution of Ex.2 is of an earlier date and held to be a true transaction, the High Court was justified in holding that Ex.was got executed only on the basis that the plaintiff can rely on the same if the second defendant does not complete the transaction of purchase under the agreement Ex.Therefore, we see no error in the approach made by the High Court in this regard.The first circumstance pointed out by Mr. Subramonia Ayyar is that evidence of P.W. 2 the broker clearly shows that the second defendant was not anxious to purchase the suit properties as his wife had made a recent purchase the suit properties as his wife had made a recent purchase under Ex.He referred to us to the evidence of P.W. 2, the broker that when he approached the second defendant regarding the intention of the first defendant to sell the property, the second defendant did not evince any anxiety to purchase the property. We are not inclined to accept this contention of the learned Counsel. P.W. 2s evidence only show that when the second defendant was consulted regarding the purchase of the suit properties, he replied that it can be considered some days later. This is a perfectly natural answer that could be expected from the second defendant specially as his wife had purchased a portion of the property only a late as March 5, 1959. Even P.W. 2 does not say that the second defendant stated he is not prepared to buy the property. The second defendant has also given evidence as D.W. 4 to the effect that about a week before the date of agreement of Ex.the defendants son came and intimated to him about the desire of the first defendant to sell the suit properties. He went and met the first defendant and the matter wasHigh Court has quite rightly held that the stamp paper for Ex.had been purchased on March 24, 1959 and that the trial Court has disbelieved the stamp register book Ex.on a very flimsystamp paper on which Ex.was written bears No. 2537. Ex.shows that the said stamp paper was sold on March 24, 1959 to the first defendant. Further D.W. 1 the person who sold the stamp paper had given evidence and the appellant did not even care tohim with regard to any interpolation in Ex.The High Court hasquite rightly held that the stamp paper for Ex.had been purchased on March 24, 1959 and that the trial Court has disbelieved the stamp register book Ex.on a very flimsyall these documents, the High Court has held that the second defendants case of payment of advance is true. On the other hand, the trial Court has totally ignored Ex.and held that the claim of the second defendant regarding the payment of Rs. 5, 001/as advance is suspicious and this conclusion is based merely on the rough day book Ex.Such a finding recorded by the trial Court was properly set aside by the Highis true that the plaintiff claims to have been given the original Stridhanakuri Ex.and it is also true that he has produced the same; but it will be seen that there is no reference in Ex.to the first defendant having handed over the original document of title to the plaintiff. Ex.has been registered as document No. 4286 of 1081 (M.E.) on the file of theQuilon, whereas the number of the document is given in Ex.as 4442 of 1081 (M.E.). If really the plaintiff had Ex.at the time when Ex.was written, the wrong number given for the document is inexplicable.Apart from the features, pointed out by us earlier, which will show that the plaintiff could not have got Ex.at the time of the agreement, there is a further circumstance to show that even the first defendant was not in possession of Ex.on the date. of Ex.i.e., on March 29, 1959. We have already referred to the usufructuary mortgage Ex.executed by the first defendant on January 8, 1957. We have also adverted to the recitals in the said document that Ex.Stridhanakuri being document No. 4286 of 1081 (M.E.) has been lost and as such the original title deed was not being given to the mortgagee. P.W. 8 has given an explanation as to how it has gone out of the possession of the first defendant and the High Court has accepted his explanation. No doubt it is a mystery as to how the plaintiff got Ex.but the evidence clearly shows that the first defendant could not have given Ex.to the plaintiff at the time of Ex.The conduct of the plaintiff in getting Ex.is rather very suspicious. The trial Court has merely proceeded on the basis that there is no explanation forthcoming from the defendant as to how the plaintiff got possession of Ex.This finding was arrived at by the trial Court without reference to the recitals in Ex.the wrong registration number in Ex.and the explanation given by P.W. 8 with reference to Ex.Such a finding was properly considered by the High Court to beview of the fact that P.W. 8 is an attestor to both the documents, it is but natural that his evidence should be approached with great caution. But having gone through his evidence and the answers given by him, we are of the opinion that the High Court was justified in acting upon his evidence regarding the circumstances under which Ex.came to be executed, specially when the answers given by the witness have been left unchallenged in further cross examination by the plaintiff. It is really on the basis of this evidence by P.W. 8 that the High Court, while accepting the truth of the execution of Ex.Having considered the entire matter, we hold that none of the circumstances pointed out above, is of any assistance to the appellant to dislodge the finding arrived at by the High Court in favour of the second defendant. | 0 | 4,072 | 1,188 | ### Instruction:
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the first defendant and that the appellant has produced, Ex. P-2. The claim of the appellant is that Ex. P-2, the Stridhanakuri, was given to him by the first defendant at time when Ex. P-1 was executed and therefore Ex. D-2 is an ante-dated document. It is true that the plaintiff claims to have been given the original Stridhanakuri Ex. P-2 and it is also true that he has produced the same; but it will be seen that there is no reference in Ex. P-1 to the first defendant having handed over the original document of title to the plaintiff. Ex. P-1 has been registered as document No. 4286 of 1081 (M.E.) on the file of the Sub-Registrar, Quilon, whereas the number of the document is given in Ex. P-1 as 4442 of 1081 (M.E.). If really the plaintiff had Ex. P-2 at the time when Ex. P-1 was written, the wrong number given for the document is inexplicable.21. Further the trial Court in holding in favour of the plaintiff has placed considerable reliance on the fact that Ex. P-2 was produced by him and it has proceeded on the basis that the defendants have no answer as to how the plaintiff got the document Ex. P-2.22. Apart from the features, pointed out by us earlier, which will show that the plaintiff could not have got Ex. P-2 at the time of the agreement, there is a further circumstance to show that even the first defendant was not in possession of Ex. P-2 on the date. of Ex. P-1, i.e., on March 29, 1959. We have already referred to the usufructuary mortgage Ex. P-16 executed by the first defendant on January 8, 1957. We have also adverted to the recitals in the said document that Ex. P-2 Stridhanakuri being document No. 4286 of 1081 (M.E.) has been lost and as such the original title deed was not being given to the mortgagee. P.W. 8 has given an explanation as to how it has gone out of the possession of the first defendant and the High Court has accepted his explanation. No doubt it is a mystery as to how the plaintiff got Ex. P-2, but the evidence clearly shows that the first defendant could not have given Ex. P-2 to the plaintiff at the time of Ex. P-1. The conduct of the plaintiff in getting Ex. P-2 is rather very suspicious. The trial Court has merely proceeded on the basis that there is no explanation forthcoming from the defendant as to how the plaintiff got possession of Ex. P-2. This finding was arrived at by the trial Court without reference to the recitals in Ex. P-16, the wrong registration number in Ex. P-1 and the explanation given by P.W. 8 with reference to Ex. P-2. Such a finding was properly considered by the High Court to be erroneous.23. Another circumstance pointed out to us on behalf of the appellant is that Ex. D-2 has been written by a person, who is not the usual document writer of the second defendant. It is pointed out that D.W. 2. is the usual document Writer for the second defendant but Ex. D-2 has been written by D.W. 3, who was an assistant of D.W. 2 This does not advance the case of the appellant in any manner. D.W. 3 admittedly was working as an assistant under D.W. 2, D.W. 3 was also a licensee under the Document Writers Licensing Rules. In fact even the sale deed Ex. D-3 has been written by him. D.W. 2 has given evidence to the effect that he was advising D.W. 3 in the preparation of these documents.24. The last circumstance pointed out to us is that P.W. 8 is an attestor to both Ex. P-1 and Ex. D-2, P.W. 8 is the son-in-law of the first defendant and he must managed to bring into existence Ex. D-2 by ante-dating the same. It is no doubt true that P.W. 8 is an attestor to both Ex. P-1 and Ex. D-2, but he has given evidence on the side of the plaintiff and he has also been cross-examined by the plaintiff when the answer given by him were not to the plaintiffs liking. P.W. 8 has given evidence to the effect that Ex. D-2 was executed on March 26, 1959. On coming to know about this agreement, his nephew P.W. 5, who was working with the plaintiff and the son of the plaintiff contacted him and raised doubts in his mind about the second defendant completing the purchase. He has further stated that in case the second defendant does not complete the purchase, the plaintiff was prepared to buy the same and for that purpose he got the agreement Ex. P-1 executed in his favour. He has further deposed that if the second defendant completes the purchase, the advance of Rs. 1, 001/- received under Ex. P-1 was to be returned to the plaintiff. In view of the fact that P.W. 8 is an attestor to both the documents, it is but natural that his evidence should be approached with great caution. But having gone through his evidence and the answers given by him, we are of the opinion that the High Court was justified in acting upon his evidence regarding the circumstances under which Ex. P-1 came to be executed, specially when the answers given by the witness have been left unchallenged in further cross examination by the plaintiff. It is really on the basis of this evidence by P.W. 8 that the High Court, while accepting the truth of the execution of Ex. P-1 has held that it was intended to have effect only if the second defendant did not complete the transaction of purchase as per Ex. D-2.25. Having considered the entire matter, we hold that none of the circumstances pointed out above, is of any assistance to the appellant to dislodge the finding arrived at by the High Court in favour of the second defendant.
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question that the High Court has held that the plaintiff got Ex.executed in his favour with full knowledge of the execution of Ex.2 is of an earlier date and held to be a true transaction, the High Court was justified in holding that Ex.was got executed only on the basis that the plaintiff can rely on the same if the second defendant does not complete the transaction of purchase under the agreement Ex.Therefore, we see no error in the approach made by the High Court in this regard.The first circumstance pointed out by Mr. Subramonia Ayyar is that evidence of P.W. 2 the broker clearly shows that the second defendant was not anxious to purchase the suit properties as his wife had made a recent purchase the suit properties as his wife had made a recent purchase under Ex.He referred to us to the evidence of P.W. 2, the broker that when he approached the second defendant regarding the intention of the first defendant to sell the property, the second defendant did not evince any anxiety to purchase the property. We are not inclined to accept this contention of the learned Counsel. P.W. 2s evidence only show that when the second defendant was consulted regarding the purchase of the suit properties, he replied that it can be considered some days later. This is a perfectly natural answer that could be expected from the second defendant specially as his wife had purchased a portion of the property only a late as March 5, 1959. Even P.W. 2 does not say that the second defendant stated he is not prepared to buy the property. The second defendant has also given evidence as D.W. 4 to the effect that about a week before the date of agreement of Ex.the defendants son came and intimated to him about the desire of the first defendant to sell the suit properties. He went and met the first defendant and the matter wasHigh Court has quite rightly held that the stamp paper for Ex.had been purchased on March 24, 1959 and that the trial Court has disbelieved the stamp register book Ex.on a very flimsystamp paper on which Ex.was written bears No. 2537. Ex.shows that the said stamp paper was sold on March 24, 1959 to the first defendant. Further D.W. 1 the person who sold the stamp paper had given evidence and the appellant did not even care tohim with regard to any interpolation in Ex.The High Court hasquite rightly held that the stamp paper for Ex.had been purchased on March 24, 1959 and that the trial Court has disbelieved the stamp register book Ex.on a very flimsyall these documents, the High Court has held that the second defendants case of payment of advance is true. On the other hand, the trial Court has totally ignored Ex.and held that the claim of the second defendant regarding the payment of Rs. 5, 001/as advance is suspicious and this conclusion is based merely on the rough day book Ex.Such a finding recorded by the trial Court was properly set aside by the Highis true that the plaintiff claims to have been given the original Stridhanakuri Ex.and it is also true that he has produced the same; but it will be seen that there is no reference in Ex.to the first defendant having handed over the original document of title to the plaintiff. Ex.has been registered as document No. 4286 of 1081 (M.E.) on the file of theQuilon, whereas the number of the document is given in Ex.as 4442 of 1081 (M.E.). If really the plaintiff had Ex.at the time when Ex.was written, the wrong number given for the document is inexplicable.Apart from the features, pointed out by us earlier, which will show that the plaintiff could not have got Ex.at the time of the agreement, there is a further circumstance to show that even the first defendant was not in possession of Ex.on the date. of Ex.i.e., on March 29, 1959. We have already referred to the usufructuary mortgage Ex.executed by the first defendant on January 8, 1957. We have also adverted to the recitals in the said document that Ex.Stridhanakuri being document No. 4286 of 1081 (M.E.) has been lost and as such the original title deed was not being given to the mortgagee. P.W. 8 has given an explanation as to how it has gone out of the possession of the first defendant and the High Court has accepted his explanation. No doubt it is a mystery as to how the plaintiff got Ex.but the evidence clearly shows that the first defendant could not have given Ex.to the plaintiff at the time of Ex.The conduct of the plaintiff in getting Ex.is rather very suspicious. The trial Court has merely proceeded on the basis that there is no explanation forthcoming from the defendant as to how the plaintiff got possession of Ex.This finding was arrived at by the trial Court without reference to the recitals in Ex.the wrong registration number in Ex.and the explanation given by P.W. 8 with reference to Ex.Such a finding was properly considered by the High Court to beview of the fact that P.W. 8 is an attestor to both the documents, it is but natural that his evidence should be approached with great caution. But having gone through his evidence and the answers given by him, we are of the opinion that the High Court was justified in acting upon his evidence regarding the circumstances under which Ex.came to be executed, specially when the answers given by the witness have been left unchallenged in further cross examination by the plaintiff. It is really on the basis of this evidence by P.W. 8 that the High Court, while accepting the truth of the execution of Ex.Having considered the entire matter, we hold that none of the circumstances pointed out above, is of any assistance to the appellant to dislodge the finding arrived at by the High Court in favour of the second defendant.
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Air India Vs. Union Of India And Ors | reads thus: "8. Provisions in respect of officers and other employees of corporations - (1) Every officer or other employee of a corporation (except a Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of the corporation) serving in its employment immediately before the appointed day shall, in so far as such officer or other employee is employed in connection with the undertaking which has vested in a company by virtue of this Act, become, as from the appointed day, an officer or other employee, as the case may be, of the company in which the undertaking has vested and shall hold his office or service therein by the same tenure, at the same remuneration, upon the same terms and conditions, with the same obligations and with the same rights and privileges as to leave, passage, insurance, superannuation scheme, provident fund, other funds, retirement, pension, gratuity and other benefits as he would have held under that corporation if its undertaking had not vested in the company and shall continue to do so as an officer or other employee, as the case may be, of the company or until the expiry of a period of six months from the appointed day if such officer or other employee opts not to be the officer or other employee of the company, within such period.(2) Where an officer or other employee of a corporation opts under sub-section (1) not to be in the employment or service of the company in which the undertaking of that corporation has vested, such officer or other employee shall be deemed to have resigned.(3) Notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947) or in any other law for the time being in force, the transfer of the services of any officer or other employee of a corporation to a company shall not entitle such officer or other employee to any compensation under this Act or under any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority.(4) The officers and other employees who have retired before the appointed day from the service of a corporation and are entitled to any benefits, rights or privileges shall be entitled to receive the same benefits, rights or privileges from the company in which the undertaking of that corporation has vested.(5) The trusts of the Provident Fund or Pilots Group Insurance and Superannuation Scheme of the corporation and any other bodies created for the welfare of officers or employees would continue to discharge their functions in the company as was being done hitherto in the corporation. Tax exemption granted to Provident Fund or Pilots Group Insurance and Superannuation Scheme would continue to be applied to the company.(6) Notwithstanding anything contained in this Act or in the Companies Act, 1956 (1 of 1956) or in any other law for the time being in force or in the regulations of a corporation, no Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of that corporation shall be entitled to any compensation against that corporation or against the company, as the case may be, for the loss of office or for the premature termination of any contract of management entered into by him with that corporation." 6. In Watson v. Winch, (1916) 1 K.B. 688, Lord Reading, C.J., said : "It would follow that any bye-law made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bye-law notwithstanding the repeal." Sankey, J., concurring, said: "When a statute is repealed any bye-law made thereunder ceases to be operative unless there is a saving clause in the new statute preserving the old bye-law. There appear to be two reasons for this: ...........Secondly, because the usual practice is to insert in the later statute a section expressly preserving previously made bye-law if it is intended that they shall remain in force." (Emphasis supplied) 7. Bennion on Statutory Interpretation, 2nd edition, at pages 494 and 495 states that a "saving is a provision the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation". It adds, "Very often a saving is unnecessary, but is put in ex abundant cautela to quietent doubts". The updated text of the Interpretation Act, 1978, (set out in Bennions book at page 897) puts into statutory form in Section 15 what is otherwise recognised in law, namely, that the repeal of an enactment does not, unless the contrary intention appears, affect any right or privilege accrued under that enactment. 8. In our view, if subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many words and by mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf.9. Section 8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving is undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extend to the said Regulation.10. Holding as we do that the said Regulations ceased to be effective on 29th January, 1994, the very foundation of Air Indias case no longer exists. No consideration of other arguments is, therefore, necessary. | 0[ds]8. In our view, if subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many words and by mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf.9. Section 8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving is undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extend to the said Regulation.10. Holding as we do that the said Regulations ceased to be effective on 29th January, 1994, the very foundation of Air Indias case no longer exists. No consideration of other arguments is, therefore, necessary. | 0 | 1,486 | 214 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
reads thus: "8. Provisions in respect of officers and other employees of corporations - (1) Every officer or other employee of a corporation (except a Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of the corporation) serving in its employment immediately before the appointed day shall, in so far as such officer or other employee is employed in connection with the undertaking which has vested in a company by virtue of this Act, become, as from the appointed day, an officer or other employee, as the case may be, of the company in which the undertaking has vested and shall hold his office or service therein by the same tenure, at the same remuneration, upon the same terms and conditions, with the same obligations and with the same rights and privileges as to leave, passage, insurance, superannuation scheme, provident fund, other funds, retirement, pension, gratuity and other benefits as he would have held under that corporation if its undertaking had not vested in the company and shall continue to do so as an officer or other employee, as the case may be, of the company or until the expiry of a period of six months from the appointed day if such officer or other employee opts not to be the officer or other employee of the company, within such period.(2) Where an officer or other employee of a corporation opts under sub-section (1) not to be in the employment or service of the company in which the undertaking of that corporation has vested, such officer or other employee shall be deemed to have resigned.(3) Notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947) or in any other law for the time being in force, the transfer of the services of any officer or other employee of a corporation to a company shall not entitle such officer or other employee to any compensation under this Act or under any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority.(4) The officers and other employees who have retired before the appointed day from the service of a corporation and are entitled to any benefits, rights or privileges shall be entitled to receive the same benefits, rights or privileges from the company in which the undertaking of that corporation has vested.(5) The trusts of the Provident Fund or Pilots Group Insurance and Superannuation Scheme of the corporation and any other bodies created for the welfare of officers or employees would continue to discharge their functions in the company as was being done hitherto in the corporation. Tax exemption granted to Provident Fund or Pilots Group Insurance and Superannuation Scheme would continue to be applied to the company.(6) Notwithstanding anything contained in this Act or in the Companies Act, 1956 (1 of 1956) or in any other law for the time being in force or in the regulations of a corporation, no Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of that corporation shall be entitled to any compensation against that corporation or against the company, as the case may be, for the loss of office or for the premature termination of any contract of management entered into by him with that corporation." 6. In Watson v. Winch, (1916) 1 K.B. 688, Lord Reading, C.J., said : "It would follow that any bye-law made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bye-law notwithstanding the repeal." Sankey, J., concurring, said: "When a statute is repealed any bye-law made thereunder ceases to be operative unless there is a saving clause in the new statute preserving the old bye-law. There appear to be two reasons for this: ...........Secondly, because the usual practice is to insert in the later statute a section expressly preserving previously made bye-law if it is intended that they shall remain in force." (Emphasis supplied) 7. Bennion on Statutory Interpretation, 2nd edition, at pages 494 and 495 states that a "saving is a provision the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation". It adds, "Very often a saving is unnecessary, but is put in ex abundant cautela to quietent doubts". The updated text of the Interpretation Act, 1978, (set out in Bennions book at page 897) puts into statutory form in Section 15 what is otherwise recognised in law, namely, that the repeal of an enactment does not, unless the contrary intention appears, affect any right or privilege accrued under that enactment. 8. In our view, if subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many words and by mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf.9. Section 8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving is undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extend to the said Regulation.10. Holding as we do that the said Regulations ceased to be effective on 29th January, 1994, the very foundation of Air Indias case no longer exists. No consideration of other arguments is, therefore, necessary.
### Response:
0
### Explanation:
8. In our view, if subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many words and by mentioning the title of the subordinate legislation. We do not think that there is room for implying anything in this behalf.9. Section 8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving is undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extend to the said Regulation.10. Holding as we do that the said Regulations ceased to be effective on 29th January, 1994, the very foundation of Air Indias case no longer exists. No consideration of other arguments is, therefore, necessary.
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Shri Subhas Chandra Chetia Vs. Assam Board of Revenue and Others | settlement of the shop. The Sub-Divisional Officer (the Primary Authority) on the advice of the Advisory Committee, settled the shop with the appellant by an order dated April 28, 1979, for the period from June 1, 1979 to March 31, 1980. (4) In the tender submitted to the Primary Authority, the petitioner had given these details of his financial sources : (1) "My brother, Shri Puspa Chetia is giving me Rs. 10, 346.52"; (in support of this assertion he attached an affidavit of his brother with the tender). (2) Sibsagar District Cooperative Bank Ltd., has assured me to accommodate loan. Bank Assurance Certificate is attached with the tender. 5. In the course of the enquiry, the Excise Inspector on April 22, 1979 examined the Pass Books of the appellants brother, Puspa Chetia, and found that he had then a total credit balance of Rs. 10, 346.52 in two accounts, namely, Rs. 7, 334.36 in the Sibsagar Central Cooperative Bank and Rs. 3012.16 in the United Bank of India, Sibsagar. This apart, the appellant had Rs. 1, 200 as cash in hand which was paid by his brother. The Inspector further referred to the Accommodation Assurance Certificate granted by the Bank. He also mentioned that the appellants family owned a pucca building worth Rs. 30, 000. He thus reported that the appellant was financially sound. As a result, the Primary Authority on the advice of the Advisory Committee settled the shop with the appellant for the period, June 1, 1979 to March 31, 1980, as per its order dated April 28, 1979. The respondent and two other tenders preferred appeals before the Revenue Board under Section 9 of the Assam Excise Act. 6. The Board by its order dated August 30, 1979 accepted Appeal No. 1005 of 1979 filed by Krishna Kumar Gogoi, set aside the order of settlement made in favour of the appellant by the Primary Authority, and thereby settled the shop in favour of the respondent, Krishna Kumar Gogoi. Aggrieved the appellant filed a writ petition in Gauhati High Court under the Article 226 of the Constitution to impeach the order of the Board. The High Court dismissed the writ petition in limine with the observation that the "error, if any" (in the impugned order of the Board) "resulting from appreciation of the evidence on record is one of fact" and not one of law which would justify interference by the High Court in the exercise of its writ jurisdiction. 7. The appellant had to pay Rs. 10, 850.44 to the outgoing lessee on June 1, 1979 for taking over the possession of the shop together with assets etc. apart from Rs. 1, 117 which was deposited as security money on April 28, 1979, when he received the settlement from the Primary Authority. 8. We had heard the learned counsel for the parties and examined the documents produced before us. The Board based on of its findings merely on conjectures and suspicions and also appears to have misappreciated and brushed aside some pieces of important evidence. For instance, while dealing with the "Assurance Certificate", it criticised the Bank for issuing it. The Board also failed to note that this "Assurance Certificate" did not remain a paper assurance but was subsequently, followed by Banks letter dated May 29, 1979, whereby the Bank allowed the appellant to draw a loan of Rs. 10, 000 on May 31, 1979 i.e. one day before the commencement of the term of the settlement. Certificate, dated August 1979, was filed by the appellant before the Board. Its copy in Annexure 4 to the special leave petition. The Board suspected he genuineness of the "Assurance Certificate" and the Certificate of advancing the loan of Rs. 10, 000 on May 31, 1979, merely because in its opinion the Bank should not have assured to advance and then advanced the loan to the appellant, being contrary to prudent banking practice. The Board observed that the "matter regarding the Certificate issued by the Cooperative Bank is a very serious one and calls for a thorough probe". Nevertheless, without making any enquiry, whatever, from the Bank or otherwise, it at once drew the conclusion that these documents were false and "fabricated". Although the Board did not directly and expressly say so, it suspected the genuineness of these documents merely because the appellants brother was an employee of the Bank. This finding of the Board that these Bank Certificates were fabricated documents was based merely on suspicions and conjectures and on no evidence whatever. This finding being based on no evidence, was vitiated by an error of law. 9. But the Boards judgment is not based merely on this finding. In its opinion, the appellant was also a defaulter of land revenue for 1978-79. The appellant, however, contended (as is now urged before us) that the right or interest in the land in respect of which land revenue was outstanding did not belong to him or his brother; but to his mother. In support of this contention he produced a copy of jamabandi showing that after the death of father this land was mutated on August 26, 1978, in favour of his mother. The Board, however, after taking into consideration a certificate from the Sub-Divisional Officer produced by the opposite party, rejected this contention. Thus, the Board had on an appreciation of the evidence reached the finding that since the appellant was a defaulter, it was not desirable to settle the shop with him. 10. It was contended before us that this finding as to the appellant being a defaulter of land revenue, was factually incorrect. Assuming it was erroneous, then also this finding of fact could not be disturbed by the court in the exercise of its writ jurisdiction. 11. Lastly, it may be observed that the period of the settlement made in favour of the respondent will be expiring shortly. That is an additional reason for not disturbing the impugned judgments of the Board and the High Court. | 0[ds]The Board suspected he genuineness of the "Assurance Certificate" and the Certificate of advancing the loan of Rs. 10, 000 on May 31, 1979, merely because in its opinion the Bank should not have assured to advance and then advanced the loan to the appellant, being contrary to prudent banking practice. The Board observed that the "matter regarding the Certificate issued by the Cooperative Bank is a very serious one and calls for a thorough probe". Nevertheless, without making any enquiry, whatever, from the Bank or otherwise, it at once drew the conclusion that these documents were false and "fabricated". Although the Board did not directly and expressly say so, it suspected the genuineness of these documents merely because the appellants brother was an employee of the Bank. This finding of the Board that these Bank Certificates were fabricated documents was based merely on suspicions and conjectures and on no evidence whatever. This finding being based on no evidence, was vitiated by an error of law9. But the Boards judgment is not based merely on this finding. In its opinion, the appellant was also a defaulter of land revenue for. The appellant, however, contended (as is now urged before us) that the right or interest in the land in respect of which land revenue was outstanding did not belong to him or his brother; but to his mother. In support of this contention he produced a copy of jamabandi showing that after the death of father this land was mutated on August 26, 1978, in favour of his mother. The Board, however, after taking into consideration a certificate from thel Officer produced by the opposite party, rejected this contention. Thus, the Board had on an appreciation of the evidence reached the finding that since the appellant was a defaulter, it was not desirable to settle the shop with him10. It was contended before us that this finding as to the appellant being a defaulter of land revenue, was factually incorrect. Assuming it was erroneous, then also this finding of fact could not be disturbed by the court in the exercise of its writ jurisdiction11. Lastly, it may be observed that the period of the settlement made in favour of the respondent will be expiring shortly. That is an additional reason for not disturbing the impugned judgments of the Board and the High Court. | 0 | 1,246 | 446 | ### 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:
settlement of the shop. The Sub-Divisional Officer (the Primary Authority) on the advice of the Advisory Committee, settled the shop with the appellant by an order dated April 28, 1979, for the period from June 1, 1979 to March 31, 1980. (4) In the tender submitted to the Primary Authority, the petitioner had given these details of his financial sources : (1) "My brother, Shri Puspa Chetia is giving me Rs. 10, 346.52"; (in support of this assertion he attached an affidavit of his brother with the tender). (2) Sibsagar District Cooperative Bank Ltd., has assured me to accommodate loan. Bank Assurance Certificate is attached with the tender. 5. In the course of the enquiry, the Excise Inspector on April 22, 1979 examined the Pass Books of the appellants brother, Puspa Chetia, and found that he had then a total credit balance of Rs. 10, 346.52 in two accounts, namely, Rs. 7, 334.36 in the Sibsagar Central Cooperative Bank and Rs. 3012.16 in the United Bank of India, Sibsagar. This apart, the appellant had Rs. 1, 200 as cash in hand which was paid by his brother. The Inspector further referred to the Accommodation Assurance Certificate granted by the Bank. He also mentioned that the appellants family owned a pucca building worth Rs. 30, 000. He thus reported that the appellant was financially sound. As a result, the Primary Authority on the advice of the Advisory Committee settled the shop with the appellant for the period, June 1, 1979 to March 31, 1980, as per its order dated April 28, 1979. The respondent and two other tenders preferred appeals before the Revenue Board under Section 9 of the Assam Excise Act. 6. The Board by its order dated August 30, 1979 accepted Appeal No. 1005 of 1979 filed by Krishna Kumar Gogoi, set aside the order of settlement made in favour of the appellant by the Primary Authority, and thereby settled the shop in favour of the respondent, Krishna Kumar Gogoi. Aggrieved the appellant filed a writ petition in Gauhati High Court under the Article 226 of the Constitution to impeach the order of the Board. The High Court dismissed the writ petition in limine with the observation that the "error, if any" (in the impugned order of the Board) "resulting from appreciation of the evidence on record is one of fact" and not one of law which would justify interference by the High Court in the exercise of its writ jurisdiction. 7. The appellant had to pay Rs. 10, 850.44 to the outgoing lessee on June 1, 1979 for taking over the possession of the shop together with assets etc. apart from Rs. 1, 117 which was deposited as security money on April 28, 1979, when he received the settlement from the Primary Authority. 8. We had heard the learned counsel for the parties and examined the documents produced before us. The Board based on of its findings merely on conjectures and suspicions and also appears to have misappreciated and brushed aside some pieces of important evidence. For instance, while dealing with the "Assurance Certificate", it criticised the Bank for issuing it. The Board also failed to note that this "Assurance Certificate" did not remain a paper assurance but was subsequently, followed by Banks letter dated May 29, 1979, whereby the Bank allowed the appellant to draw a loan of Rs. 10, 000 on May 31, 1979 i.e. one day before the commencement of the term of the settlement. Certificate, dated August 1979, was filed by the appellant before the Board. Its copy in Annexure 4 to the special leave petition. The Board suspected he genuineness of the "Assurance Certificate" and the Certificate of advancing the loan of Rs. 10, 000 on May 31, 1979, merely because in its opinion the Bank should not have assured to advance and then advanced the loan to the appellant, being contrary to prudent banking practice. The Board observed that the "matter regarding the Certificate issued by the Cooperative Bank is a very serious one and calls for a thorough probe". Nevertheless, without making any enquiry, whatever, from the Bank or otherwise, it at once drew the conclusion that these documents were false and "fabricated". Although the Board did not directly and expressly say so, it suspected the genuineness of these documents merely because the appellants brother was an employee of the Bank. This finding of the Board that these Bank Certificates were fabricated documents was based merely on suspicions and conjectures and on no evidence whatever. This finding being based on no evidence, was vitiated by an error of law. 9. But the Boards judgment is not based merely on this finding. In its opinion, the appellant was also a defaulter of land revenue for 1978-79. The appellant, however, contended (as is now urged before us) that the right or interest in the land in respect of which land revenue was outstanding did not belong to him or his brother; but to his mother. In support of this contention he produced a copy of jamabandi showing that after the death of father this land was mutated on August 26, 1978, in favour of his mother. The Board, however, after taking into consideration a certificate from the Sub-Divisional Officer produced by the opposite party, rejected this contention. Thus, the Board had on an appreciation of the evidence reached the finding that since the appellant was a defaulter, it was not desirable to settle the shop with him. 10. It was contended before us that this finding as to the appellant being a defaulter of land revenue, was factually incorrect. Assuming it was erroneous, then also this finding of fact could not be disturbed by the court in the exercise of its writ jurisdiction. 11. Lastly, it may be observed that the period of the settlement made in favour of the respondent will be expiring shortly. That is an additional reason for not disturbing the impugned judgments of the Board and the High Court.
### Response:
0
### Explanation:
The Board suspected he genuineness of the "Assurance Certificate" and the Certificate of advancing the loan of Rs. 10, 000 on May 31, 1979, merely because in its opinion the Bank should not have assured to advance and then advanced the loan to the appellant, being contrary to prudent banking practice. The Board observed that the "matter regarding the Certificate issued by the Cooperative Bank is a very serious one and calls for a thorough probe". Nevertheless, without making any enquiry, whatever, from the Bank or otherwise, it at once drew the conclusion that these documents were false and "fabricated". Although the Board did not directly and expressly say so, it suspected the genuineness of these documents merely because the appellants brother was an employee of the Bank. This finding of the Board that these Bank Certificates were fabricated documents was based merely on suspicions and conjectures and on no evidence whatever. This finding being based on no evidence, was vitiated by an error of law9. But the Boards judgment is not based merely on this finding. In its opinion, the appellant was also a defaulter of land revenue for. The appellant, however, contended (as is now urged before us) that the right or interest in the land in respect of which land revenue was outstanding did not belong to him or his brother; but to his mother. In support of this contention he produced a copy of jamabandi showing that after the death of father this land was mutated on August 26, 1978, in favour of his mother. The Board, however, after taking into consideration a certificate from thel Officer produced by the opposite party, rejected this contention. Thus, the Board had on an appreciation of the evidence reached the finding that since the appellant was a defaulter, it was not desirable to settle the shop with him10. It was contended before us that this finding as to the appellant being a defaulter of land revenue, was factually incorrect. Assuming it was erroneous, then also this finding of fact could not be disturbed by the court in the exercise of its writ jurisdiction11. Lastly, it may be observed that the period of the settlement made in favour of the respondent will be expiring shortly. That is an additional reason for not disturbing the impugned judgments of the Board and the High Court.
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Kishore Chand Vs. State Of Himachal Pradesh | reach an irresistible conclusion that the alleged extra judicial confession statement was made while the appellant was in the police custody. It is well settled law that Sections 25 and 26 shall be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW. 10 while he was in the custody of the police officer (PW. 27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc. 9. The third circumstance relied on is the statement said to have been made by the appellant under section 27 of the Evidence Act leading to discovery of the consequential information, namely, saw blade, is not of a conclusive nature connecting the appellant with the crime. The recoveries were long after the arrest of the appellant. The blood stains on all the articles were disintegrated. So it was not possible to find whether it is human blood or not. Moreover, from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back. Absolutely no motive to commit crime was attributed to the appellant. 10. No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with Section 34, namely, common intention to commit the offences and A. 2 and A. 3 were acquitted of the charge under section 302/34, I.P.C. and that there is no independent charge under section 302, I.P.C. If, from the evidence, it is established that any one of the accused have committed the crime individually, though the other accused were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302, I.P.C. simplicitor. The omission to frame an independent charge under section 302, I.P.C. does not vitiate the conviction and sentence under section 302, I.P.C. 11. Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime. Therefore, the appellant is entitled to the benefit of doubt. The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside. The appellant is on bail granted by this Court after nine years incarceration. The bail bond shall stand cancelled. He shall remain at liberty unless he is required in any other case.12. Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appellant, a peon, the driver and the cleaner for ride and trampled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302. I.P.C. by freely fabricating evidence against the innocent. Undoubtedly. heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the liberty of a citizen is a precious one guaranteed by Art. 3 of Universal Declaration of Human Rights and also Art. 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under Art. 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an in built right to liberty and life envisaged under Arts. 19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the responsibility of the law enforcement agencies. Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which underlines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Central or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution.13. Though Art. 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency. 14. We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard. | 1[ds]n a case of circumstantial evidence. all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstances by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of thate first circumstance is that the deceased and the appellant were last seen together by PW. 7 and PW. 8. From the evidence it is clear that there is no prior intimacy of the appellant and the deceased. They happened to meet per chance. Equally from the evidence it is clear that PW. 7, the liquor shop owner and PW. 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant. Admittedly there is no identification parade conducted by the prosecution tO identify the appellant by PW. 7 or PW. 8. The appellant was stated to have pointed out to PW. 7 as the one that sold the liquor and PW-8 consumed it with him and the deceased. Therefore it is not reasonably possible to accept the testimony of PW. 7 and PW. 8 when they professed that they have seen the appellant and the deceased together consuming the liquor. It is highly artificial and appears on its face a make believe story. The next piece of evidence is the alleged extra judicial confession made by the appellant to PW. 10. An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra judicial confession if found to be voluntary, can be relied upon by the court alongwith other evidence on record. Therefore, even the extra judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Some times it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime. Therefore, the appellant is entitled to the benefit of doubt. The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside. The appellant is on bail granted by this Court after nine years incarceration. The bail bond shall stand cancelled. He shall remain at liberty unless he is required in any other case.12. Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appellant, a peon, the driver and the cleaner for ride and trampled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302. I.P.C. by freely fabricating evidence against the innocent. Undoubtedly. heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the liberty of a citizen is a precious one guaranteed by Art. 3 of Universal Declaration of Human Rights and also Art. 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under Art. 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an in built right to liberty and life envisaged under Arts. 19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the responsibility of the law enforcement agencies. Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which underlines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Central or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution.13. Though Art. 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency. | 1 | 4,545 | 1,398 | ### 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:
reach an irresistible conclusion that the alleged extra judicial confession statement was made while the appellant was in the police custody. It is well settled law that Sections 25 and 26 shall be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW. 10 while he was in the custody of the police officer (PW. 27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc. 9. The third circumstance relied on is the statement said to have been made by the appellant under section 27 of the Evidence Act leading to discovery of the consequential information, namely, saw blade, is not of a conclusive nature connecting the appellant with the crime. The recoveries were long after the arrest of the appellant. The blood stains on all the articles were disintegrated. So it was not possible to find whether it is human blood or not. Moreover, from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back. Absolutely no motive to commit crime was attributed to the appellant. 10. No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with Section 34, namely, common intention to commit the offences and A. 2 and A. 3 were acquitted of the charge under section 302/34, I.P.C. and that there is no independent charge under section 302, I.P.C. If, from the evidence, it is established that any one of the accused have committed the crime individually, though the other accused were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302, I.P.C. simplicitor. The omission to frame an independent charge under section 302, I.P.C. does not vitiate the conviction and sentence under section 302, I.P.C. 11. Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime. Therefore, the appellant is entitled to the benefit of doubt. The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside. The appellant is on bail granted by this Court after nine years incarceration. The bail bond shall stand cancelled. He shall remain at liberty unless he is required in any other case.12. Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appellant, a peon, the driver and the cleaner for ride and trampled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302. I.P.C. by freely fabricating evidence against the innocent. Undoubtedly. heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the liberty of a citizen is a precious one guaranteed by Art. 3 of Universal Declaration of Human Rights and also Art. 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under Art. 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an in built right to liberty and life envisaged under Arts. 19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the responsibility of the law enforcement agencies. Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which underlines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Central or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution.13. Though Art. 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency. 14. We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard.
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1
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that they have seen the appellant and the deceased together consuming the liquor. It is highly artificial and appears on its face a make believe story. The next piece of evidence is the alleged extra judicial confession made by the appellant to PW. 10. An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra judicial confession if found to be voluntary, can be relied upon by the court alongwith other evidence on record. Therefore, even the extra judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Some times it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime. Therefore, the appellant is entitled to the benefit of doubt. The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside. The appellant is on bail granted by this Court after nine years incarceration. The bail bond shall stand cancelled. He shall remain at liberty unless he is required in any other case.12. Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appellant, a peon, the driver and the cleaner for ride and trampled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302. I.P.C. by freely fabricating evidence against the innocent. Undoubtedly. heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. At the same time the liberty of a citizen is a precious one guaranteed by Art. 3 of Universal Declaration of Human Rights and also Art. 21 of the Constitution of India and its deprivation shall be only in accordance with law. The accused has the fundamental right to defend himself under Art. 10 of Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial. The poor accused cannot defend effectively and adequately. Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an in built right to liberty and life envisaged under Arts. 19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the responsibility of the law enforcement agencies. Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which underlines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Central or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution.13. Though Art. 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.
|
L. Ishwar Dass & Others Vs. The Haryana Woollen & General Mills Limited | has committed breach of condition No. 21 of the deed of partnership between the parties and that he has committed no breach of contract after that date. The plaintiffs have now come on appeal against this Judgment of the Division Bench of Punjab High Court in the Letters Patent appeal.16. The main contention of the appellants before us was that the Division Bench of the High Court misunderstood the real issue between the parties. The appellants make out their case in the following manner. In the order dated May 11, 1963 of the trial Court there had been a finding that since the defendant mill had committed a breach of the contract it alone was responsible for the loss suffered by the partnership. The significance of this finding which in effect is based on condition No. 21 of the partnership deed is that a single breach of condition No. 21 will make the defendant mill responsible for the entire loss during the whole period of partnership. Conditions 20 and 21 have to be read together to understand the real purport of these conditions. If the plaintiffs were to fail in their obligation of purchasing and supplying wool to the defendant mill the entire responsibility forall the lossesof the partnership firm were to be borne by the plaintiffs and the defendant mill was not to take any share of it at all. Likewise if the defendant mill was to fail in its obligation of spinning yarn of the requisite count i.e. 35-40 count then the plaintiffs "will not at all be responsible for the supply of the material, blankets and losses. That is to say, the plaintiffs will in that event be absolved from supplying further material i.e. wool to the defendant mill and also from supplying blankets to government and they would also not be responsible for the loss which would be borne entirely by the defendant mill. If, however, the defendant mill discharged its own obligation i.e. to say "if the yarn of the specified count is continually received then any loss that arose after that would accrue to the firm. Such loss apparently would be treated as the loss of the firm to be distributed among the partners in the shares specified in the partnership deed n the ordinary way. According to the plaintiffs, the learned trial court had decided that since the breach of contract had been committed by the defendant mill, the defendant mill alone would be responsible for the loss suffered by the partnership firm. The plaintiffs contended that this finding of the trial Court had not been challenged by the defendant mill either before the learned Senior Subordinate Judge or before the High Court at any stage and consequently the defendant mill should not be permitted to challenge that finding in this Court. Our attention was drawn by the appellants to the copy of the report of the Local Commissioner appointed by the Subordinate Judges preliminary decree dated May 11, 1963 where the Local Commissioner had recorded the following finding :"I hold, that the Suppliers firm purchased Mds. 616 Sr. 27. 3 chs. wool of different quality vide Ex. P. Z/1 for Rs. 99219-5-6 pie. The total expenditure with interest is Rs. 1.42,633-10-3. The total sale proceeds of the Suppliers is Rs. 73,568-12-0. The net loss vide Ex. P. 24 is Rs. 33.749-9-6 less 5,992-10-6 the spinning charges of the defendants mill. The total of loss is 27,756-15-0. The plaintiffs demanded interest on the sums invested by them in the firm but as the firm has gained no profit rather it. suffered a heavy loss and so under Section 13-C of the Partnership Act, the interest cannot be allowed even if there be a stipulation in the partnership deed to the effect unless it be specially provided that interest will be paid on investments in case that any firm is sustaining loss. I however leave this decision on the learned court. I leave the decision regarding costs of the litigation as well on the learned court. I therefore hold that the plaintiffs are entitled to recover the losses amounting to Rs. 27,756-15-0 from the defendant. (This obviously contains certain mistakes which are found in the copies supplied to the Court).The plaintiffs have, of course, objected to two findings of the Local Commissioner viz. one as to the spinning charges and the other as to the question of interest. But these questions are still to the determined by the learned Subordinate Judge at the time of giving the final decree. The plaintiffs urged that the Division Bench of the High Court had made an obvious error in holding that accounting was to be done only with regard to the period before March 6, 1951. The learned counsel on behalf of the defendant mill sought to challenge the finding of the trial Court that the defendant No. 1 was to be responsible for the entire loss of the partnership firm under condition 21 but though we asked him to show whether this finding of the learned trial Court had been challenged at any stage either before the learned Senior Subordinate Judge or before the High Court he has not been able to satisfy us on this point. There is no doubt that this particular finding is being challenged for the first time before this Court. We, therefore, accept the plaintiffs contention that the finding of the trial court on this point is final and conclusive. The learned Single Judge of the High Court in so far as he sustained the order of the trial Court is correct. The learned Single Judge was wrong in directing the trial Court to send the case again to the Local Commissioner to report on the breach committed after March 6, 1951. The plaintiffs cross-objection was quite correct that in view of condition No. 21 no fresh report was called for to ascertain the loss suffered by the firm on account of breach committed before and after March 6, 1951 separately. | 1[ds]9. The plaintiffs thereupon brought the matter on appeal to this Court by special leave. This Court on that occasion held that clause No. 21 of the terms of partnership which laid down the condition regarding spinning of yarn ofcount was operative as from December 1, 1950. To that extent the finding of the lower courts was set aside. Since there was no clear finding by the lower courts on the question whether there had been any breach before March 6, 1951, this Court held that this question should be gone into at the time of giving the final decree. In any event final accounting was to be done on the basis that all the conditions of the deed of partnership were operative fromThis Court also gave a direction that the question as to what happened to the balance of 21 mds. of wool given by the appellants after March 6, 1951would have to be determined in accounting and at the time of final decree and further, provided that in regard to the question of damages the matter was to be dealt with in accordance with Sec. 13 of the Partnership Act. The appeal was, therefore, allowed by this Court to the extent we have just indicated and the preliminary decree was modified accordingly. The case thereupon went back for further hearing.The High Court and the subordinate courts had previously recorded their findings only with regard to 3 mds. 24 srs. and 2 chs. of yarn which had been supplied by the defendant mill to the plaintiffs after March 6, 1951. According to that finding this 3 mds. 24 srs. and 2 chs were of the required count. This finding could not be traversed again and was to be taken as final.The question, however, still remained as to what had happened to the balance quantity of wool supplied by the plaintiffs to the defendant mill. Could it be said that the return of some wool and waste by the defendant mill as found by the trial Court after remand was in compliance with the terms and conditions of the partnership ? The question that the High Court thought was important for decision was this : Was the defendant mill justified in returning a quantity of the wool without turning it into yarn ?According to the High Courts interpretation of this Courts Judgment and decree "the question whether 3 mds. 24 srs. and 2 chs. supplied after the 6th of March was in accordance with the terms of the contract, was not left open but the question whether the balance of 21 mds was properly accounted for in terms of the agreement, had to be determined by the trial Court. The High Court found that the trial Court had not decided this matter and directed that the records be sent to the trial Court to determine whether in returning the balance wool the defendant mill had committed any breach of the terms of partnership or not. The High Court directed that each party would be given one opportunity to lead all such evidence as it may deem fit and as may be relevant and the trial Court after hearing the arguments would send a report to the High Court through the Senior Subordinate Judge. The High Court gave other ancillary directions. Pursuant to this direction the learned Subordinate Judge First Class, Panipat recorded the evidence of Ishwar Das Plaintiff and Jei Narain Managing Director of the defendant mill on August 31, 1965 and submitted a report to the High Court. In the report the learned Subordinate Judge gave the opinion that the defendant mill had committed breach of contract with regard to the balance quantity of 21 mds. of wool also. The learned Subordinate Judge found that the entire quantity of 21 mds. of wool supplied by the plaintiff in March 1951 was for spinning and that the defendant, when he returned carded and mixed wool on March 13, 1951 without spinning the same, committed a breach of the contract. The High Court then considered this report and accepted the finding of the trial Court "that the entire quantity of 21 mds. was given for spinning and...12 mds. 24 srs. and 15 chs. out of it was returned unspun and this amounted to a breach. The High Court therefore directed that the Commissioner appointed by the trial Court should in addition to the matter already referred to him in regard to the breach prior to March 6, 1951 go into the breach after March 6, 1951. In the final result, therefore, the appeal of the defendant was rejected and thefiled by the plaintiffs were accepted by the High Court.15. Against this decision of a Single Judge of the High Court there was a Letters Patent appeal in which the Division Bench of the High Court held that the wool supplied by the plaintiffs to the defendant mill on or after March 6, 1951 had been duly and properly returned and accounted for by the defendant mill and therefore the defendant mill had committed no breach of contract with regard to it. The plaintiffs had filedbefore the Division Bench in connection with the Letters Patent appeal on the ground that the learned Single Judge should not have directed the Local Commissioner to take any accounts between the parties because he had already done so and submitted a report to the trial Court. With regard to thisthe Division Bench held that since they had found that there had been no breach of condition No. 21 between the parties after March 6, 1951 the additional direction given by the learned Single Judge was unnecessary and it was not therefore necessary for the matter to go back to the Local Commissioner any further. To this extent the Local Commissioner was directed not to take any further accounts. But since this was the result of the partial success of the defendant mill the cross objections of the plaintiffs were dismissed. As a result of the part success of the defendant mill the Division Bench directed that the accounting between the parties was to be done only with regard to the period before March 6, 1951 on the basis that the defendant mill has committed breach of condition No. 21 of the deed of partnership between the parties and that he has committed no breach of contract after that date. The plaintiffs have now come on appeal against this Judgment of the Division Bench of Punjab High Court in the Letters Patent appeal.The main contention of the appellants before us was that the Division Bench of the High Court misunderstood the real issue between the parties. The appellants make out their case in the followingmanner. In the order dated May 11, 1963 of the trial Court there had been a finding that since the defendant mill had committed a breach of the contract it alone was responsible for the loss suffered by the partnership. The significance of this finding which in effect is based on condition No. 21 of the partnership deed is that a single breach of condition No. 21 will make the defendant mill responsible for the entire loss during the whole period of partnership. Conditions 20 and 21 have to be read together to understand the real purport of these conditions. If the plaintiffs were to fail in their obligation of purchasing and supplying wool to the defendant mill the entire responsibility forall the lossesof the partnership firm were to be borne by the plaintiffs and the defendant mill was not to take any share of it at all. Likewise if the defendant mill was to fail in its obligation of spinning yarn of the requisite count i.e.count then the plaintiffs "will not at all be responsible for the supply of the material, blankets and losses. That is to say, the plaintiffs will in that event be absolved from supplying further material i.e. wool to the defendant mill and also from supplying blankets to government and they would also not be responsible for the loss which would be borne entirely by the defendant mill. If, however, the defendant mill discharged its own obligation i.e. to say "if the yarn of the specified count is continually received then any loss that arose after that would accrue to the firm. Such loss apparently would be treated as the loss of the firm to be distributed among the partners in the shares specified in the partnership deed n the ordinary way. According to the plaintiffs, the learned trial court had decided that since the breach of contract had been committed by the defendant mill, the defendant mill alone would be responsible for the loss suffered by the partnership firm. Theplaintiffs contended that this finding of the trial Court had not been challenged by the defendant mill either before the learned Senior Subordinate Judge or before the High Court at any stage and consequently the defendant mill should not be permitted to challenge that finding in thisplaintiffs have, of course, objected to two findings of the Local Commissioner viz. one as to the spinning charges and the other as to the question of interest. But these questions are still to the determined by the learned Subordinate Judge at the time of giving the final decree. The plaintiffs urged that the Division Bench of the High Court had made an obvious error in holding that accounting was to be done only with regard to the period before March 6, 1951. The learned counsel on behalf of the defendant mill sought to challenge the finding of the trial Court that the defendant No. 1 was to be responsible for the entire loss of the partnership firm under condition 21 but though we asked him to show whether this finding of the learned trial Court had been challenged at any stage either before the learned Senior Subordinate Judge or before the High Court he has not been able to satisfy us on this point. There is no doubt that this particular finding is being challenged for the first time before this Court. We, therefore, accept the plaintiffs contention that the finding of the trial court on this point is final and conclusive. The learned Single Judge of the High Court in so far as he sustained the order of the trial Court is correct. The learned Single Judge was wrong in directing the trial Court to send the case again to the Local Commissioner to report on the breach committed after March 6, 1951. The plaintiffswas quite correct that in view of condition No. 21 no fresh report was called for to ascertain the loss suffered by the firm on account of breach committed before and after March 6, 1951 separately. | 1 | 4,392 | 1,911 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
has committed breach of condition No. 21 of the deed of partnership between the parties and that he has committed no breach of contract after that date. The plaintiffs have now come on appeal against this Judgment of the Division Bench of Punjab High Court in the Letters Patent appeal.16. The main contention of the appellants before us was that the Division Bench of the High Court misunderstood the real issue between the parties. The appellants make out their case in the following manner. In the order dated May 11, 1963 of the trial Court there had been a finding that since the defendant mill had committed a breach of the contract it alone was responsible for the loss suffered by the partnership. The significance of this finding which in effect is based on condition No. 21 of the partnership deed is that a single breach of condition No. 21 will make the defendant mill responsible for the entire loss during the whole period of partnership. Conditions 20 and 21 have to be read together to understand the real purport of these conditions. If the plaintiffs were to fail in their obligation of purchasing and supplying wool to the defendant mill the entire responsibility forall the lossesof the partnership firm were to be borne by the plaintiffs and the defendant mill was not to take any share of it at all. Likewise if the defendant mill was to fail in its obligation of spinning yarn of the requisite count i.e. 35-40 count then the plaintiffs "will not at all be responsible for the supply of the material, blankets and losses. That is to say, the plaintiffs will in that event be absolved from supplying further material i.e. wool to the defendant mill and also from supplying blankets to government and they would also not be responsible for the loss which would be borne entirely by the defendant mill. If, however, the defendant mill discharged its own obligation i.e. to say "if the yarn of the specified count is continually received then any loss that arose after that would accrue to the firm. Such loss apparently would be treated as the loss of the firm to be distributed among the partners in the shares specified in the partnership deed n the ordinary way. According to the plaintiffs, the learned trial court had decided that since the breach of contract had been committed by the defendant mill, the defendant mill alone would be responsible for the loss suffered by the partnership firm. The plaintiffs contended that this finding of the trial Court had not been challenged by the defendant mill either before the learned Senior Subordinate Judge or before the High Court at any stage and consequently the defendant mill should not be permitted to challenge that finding in this Court. Our attention was drawn by the appellants to the copy of the report of the Local Commissioner appointed by the Subordinate Judges preliminary decree dated May 11, 1963 where the Local Commissioner had recorded the following finding :"I hold, that the Suppliers firm purchased Mds. 616 Sr. 27. 3 chs. wool of different quality vide Ex. P. Z/1 for Rs. 99219-5-6 pie. The total expenditure with interest is Rs. 1.42,633-10-3. The total sale proceeds of the Suppliers is Rs. 73,568-12-0. The net loss vide Ex. P. 24 is Rs. 33.749-9-6 less 5,992-10-6 the spinning charges of the defendants mill. The total of loss is 27,756-15-0. The plaintiffs demanded interest on the sums invested by them in the firm but as the firm has gained no profit rather it. suffered a heavy loss and so under Section 13-C of the Partnership Act, the interest cannot be allowed even if there be a stipulation in the partnership deed to the effect unless it be specially provided that interest will be paid on investments in case that any firm is sustaining loss. I however leave this decision on the learned court. I leave the decision regarding costs of the litigation as well on the learned court. I therefore hold that the plaintiffs are entitled to recover the losses amounting to Rs. 27,756-15-0 from the defendant. (This obviously contains certain mistakes which are found in the copies supplied to the Court).The plaintiffs have, of course, objected to two findings of the Local Commissioner viz. one as to the spinning charges and the other as to the question of interest. But these questions are still to the determined by the learned Subordinate Judge at the time of giving the final decree. The plaintiffs urged that the Division Bench of the High Court had made an obvious error in holding that accounting was to be done only with regard to the period before March 6, 1951. The learned counsel on behalf of the defendant mill sought to challenge the finding of the trial Court that the defendant No. 1 was to be responsible for the entire loss of the partnership firm under condition 21 but though we asked him to show whether this finding of the learned trial Court had been challenged at any stage either before the learned Senior Subordinate Judge or before the High Court he has not been able to satisfy us on this point. There is no doubt that this particular finding is being challenged for the first time before this Court. We, therefore, accept the plaintiffs contention that the finding of the trial court on this point is final and conclusive. The learned Single Judge of the High Court in so far as he sustained the order of the trial Court is correct. The learned Single Judge was wrong in directing the trial Court to send the case again to the Local Commissioner to report on the breach committed after March 6, 1951. The plaintiffs cross-objection was quite correct that in view of condition No. 21 no fresh report was called for to ascertain the loss suffered by the firm on account of breach committed before and after March 6, 1951 separately.
### Response:
1
### Explanation:
was a Letters Patent appeal in which the Division Bench of the High Court held that the wool supplied by the plaintiffs to the defendant mill on or after March 6, 1951 had been duly and properly returned and accounted for by the defendant mill and therefore the defendant mill had committed no breach of contract with regard to it. The plaintiffs had filedbefore the Division Bench in connection with the Letters Patent appeal on the ground that the learned Single Judge should not have directed the Local Commissioner to take any accounts between the parties because he had already done so and submitted a report to the trial Court. With regard to thisthe Division Bench held that since they had found that there had been no breach of condition No. 21 between the parties after March 6, 1951 the additional direction given by the learned Single Judge was unnecessary and it was not therefore necessary for the matter to go back to the Local Commissioner any further. To this extent the Local Commissioner was directed not to take any further accounts. But since this was the result of the partial success of the defendant mill the cross objections of the plaintiffs were dismissed. As a result of the part success of the defendant mill the Division Bench directed that the accounting between the parties was to be done only with regard to the period before March 6, 1951 on the basis that the defendant mill has committed breach of condition No. 21 of the deed of partnership between the parties and that he has committed no breach of contract after that date. The plaintiffs have now come on appeal against this Judgment of the Division Bench of Punjab High Court in the Letters Patent appeal.The main contention of the appellants before us was that the Division Bench of the High Court misunderstood the real issue between the parties. The appellants make out their case in the followingmanner. In the order dated May 11, 1963 of the trial Court there had been a finding that since the defendant mill had committed a breach of the contract it alone was responsible for the loss suffered by the partnership. The significance of this finding which in effect is based on condition No. 21 of the partnership deed is that a single breach of condition No. 21 will make the defendant mill responsible for the entire loss during the whole period of partnership. Conditions 20 and 21 have to be read together to understand the real purport of these conditions. If the plaintiffs were to fail in their obligation of purchasing and supplying wool to the defendant mill the entire responsibility forall the lossesof the partnership firm were to be borne by the plaintiffs and the defendant mill was not to take any share of it at all. Likewise if the defendant mill was to fail in its obligation of spinning yarn of the requisite count i.e.count then the plaintiffs "will not at all be responsible for the supply of the material, blankets and losses. That is to say, the plaintiffs will in that event be absolved from supplying further material i.e. wool to the defendant mill and also from supplying blankets to government and they would also not be responsible for the loss which would be borne entirely by the defendant mill. If, however, the defendant mill discharged its own obligation i.e. to say "if the yarn of the specified count is continually received then any loss that arose after that would accrue to the firm. Such loss apparently would be treated as the loss of the firm to be distributed among the partners in the shares specified in the partnership deed n the ordinary way. According to the plaintiffs, the learned trial court had decided that since the breach of contract had been committed by the defendant mill, the defendant mill alone would be responsible for the loss suffered by the partnership firm. Theplaintiffs contended that this finding of the trial Court had not been challenged by the defendant mill either before the learned Senior Subordinate Judge or before the High Court at any stage and consequently the defendant mill should not be permitted to challenge that finding in thisplaintiffs have, of course, objected to two findings of the Local Commissioner viz. one as to the spinning charges and the other as to the question of interest. But these questions are still to the determined by the learned Subordinate Judge at the time of giving the final decree. The plaintiffs urged that the Division Bench of the High Court had made an obvious error in holding that accounting was to be done only with regard to the period before March 6, 1951. The learned counsel on behalf of the defendant mill sought to challenge the finding of the trial Court that the defendant No. 1 was to be responsible for the entire loss of the partnership firm under condition 21 but though we asked him to show whether this finding of the learned trial Court had been challenged at any stage either before the learned Senior Subordinate Judge or before the High Court he has not been able to satisfy us on this point. There is no doubt that this particular finding is being challenged for the first time before this Court. We, therefore, accept the plaintiffs contention that the finding of the trial court on this point is final and conclusive. The learned Single Judge of the High Court in so far as he sustained the order of the trial Court is correct. The learned Single Judge was wrong in directing the trial Court to send the case again to the Local Commissioner to report on the breach committed after March 6, 1951. The plaintiffswas quite correct that in view of condition No. 21 no fresh report was called for to ascertain the loss suffered by the firm on account of breach committed before and after March 6, 1951 separately.
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Sandur Manganese & Iron Ores Ltd Vs. State of Karnataka & Others | at the end of Rule 60 to the effect that once the 30 days period specified in the Notification contemplated by Rule 59(1) sub-clause (ii) is over, premature applications would revive. After taking such pains to make it clear that the application would not be entertained until the end of 30 days period, surely the Legislature itself would not have inserted such proviso in Rule 60 if that were its intention. If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.54) The Division Bench has also accepted Jindals contention that if Rule 60 is interpreted to render applications made prior to Rule 59(1) Notification non est, in that event, it would make Rule 59(2) unworkable because persons will normally apply mining lease areas along with an application for relaxation under Rule 59(2). In view of our earlier reasons, this conclusion is clearly misplaced. It is only the request under Rule 59(2) for relaxation in respect of an area that is considered and not the application for grant. It is only after the relaxation under Rule 59(2) by the Central Government of the requirement of the Notification under Rule 59(1) that the applications could be considered for grant of mining lease.55) Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.Issue (i): Whether it is advisable to remit it to the Central Government: 56) Learned senior counsel appearing for Jindal and Kalyani requested that inasmuch as the Central Government has already given its approval under Section 5 of the MMDR Act in their favour during the pendency of the writ petition, if this Court feels that fresh decision is to be arrived, the same may be remitted to the Central Government. In the earlier part of our judgment, we have pointed out that the Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. It is useful to refer Barnard vs. National Dock Labour Board (1953) 1 All E.R. 1113 at 1120 para 1, McFoy vs. United Africa Co. (1961) All E.R. 1169, Pavani Sridhara Rao vs. Govt. of A.P & Ors. (1996) 8 SCC 298 (para 5) and State of Kerala vs. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191 (para 9). If the very same recommendation of the State Government is sent back to the Central Government on the administrative side in its role as an approving authority under Section 5(1) without setting aside the impugned judgment, it is more likely that the Central Government would simply follow its previous order. In that event, the Central Government would be influenced by the judgment passed by the Division Bench upholding the grant made in favour of Jindal and Kalyani. Such an exercise would be in the nature of post-decisional hearing which would be impermissible. [Vide H.L. Trehan & Ors. vs. Union of India & Ors., (1989) 1 SCC 764 (paras 12 & 13) K.I. Shephard & Ors. vs. Union of India & Ors., (1987) 4 SCC 431 (para 16) and Shekhar Ghosh vs. Union of India & Anr., (2007) 1 SCC 331 ]. It is also brought to our notice that as on date the Central Government hears revision petitions through an Executive Officer and without participation of a Judicial Member. It is also pointed out that the exact procedure of the revisional Tribunal has kept changing over the last few months. It is clear that it would not be an independent and efficacious alternative forum in terms of the guidelines laid down by the Constitution Bench in Union of India vs. R. Gandhi, President, Madras Bar Association, JT 2010 (5) SC 553 . As observed by three Judge Bench of this Court in Indian Charge Chrome Ltd. (supra), when there was no valid recommendation by the State Government for the grant of lease, there cannot be any valid approval of the Central Government relying on the defective recommendation. We have already concluded that the recommendation of the State Government dated 06.12.2004 is not valid with reference to the provisions of MMDR Act and the Rules, hence the invalid recommendation cannot be looked into by the Central Government. Further, proviso to Section 5(1) itself provides only for the Central Government either to grant or reject its approval to the State Governments recommendation in the case of mining lease for a mineral such as iron ore in the First Schedule. In our view, such consideration on the administrative side does not involve consideration of all the applicants based on their mining lease applications and after giving an opportunity of hearing. Inasmuch as the Central Government does not have all relevant materials before it, it may not be in a position to substitute itself for the State Government and, if not, it would be proper, in fact, it would be inconsistent with the provisions of the MMDR Act and the Rules to frame the issue on the administrative side of the Central Government. Even otherwise, inasmuch as we have heard the matter at length and we satisfy that there is a flaw in the recommendation of the State Government which requires reconsideration, we reject the request for remitting the matter to the Central Government for its decision. Conclusion: | 1[ds]) A perusal of the proceedings of the Chief Minister shows that no clear reasons were given to show as to why Jindal and Kalyani were preferred over other applicants. There is also no plausible reason why the applications of the appellants herein were not considered favourably. A summary of the applications was prepared and at the end certain columns were left blank which the Chief Minister filled by hand and then signed theIt is true that among the criteria mentioned, only one criteria, namely, "proposed investment" is taken into account in evaluating some applications. However, as mentioned above, in the said proceedings, two irrelevant points were taken into account, namely, (i) whether or not the applicant holds a mining lease in the State and (ii) the amount of their past investment in steel plant. It is equally true that the proceedings recommended in favour of Jindal and Kalyani was justified by the special reasons specifically stated at the very end in terms of Sectionplain reading of the above provision makes it amply clear that it would apply to favour a later applicant over an earlier applicant which is relevant only in the event that the main provision of Section 11(2) relating to preference of prior applicants applies and not in the case of notification inviting applications, whether it is under the first proviso to Section 11(2) or 11(4) under the later proviso, upon notification, by deeming fiction all applications are treated as having been received on the sameIn view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and theRules.28) It is not open to the State Government to justify grant based on criteria that are de hors to the MMDR Act and the MC Rules. The exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. It is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statuteperusal of the above decision clearly shows that it concerned with Section 8(3) of the MMDR Act which requires consideration of the extremely general criterion of the interests of mineral development before granting second renewal of a mining lease. Unlike in Section 11(3), no further criteria was specified and it was in this background, this Court upheld on the facts of that case that relevant material taken into account by the Committee set up by the Central Government rightly included "captive consumption". In view of the factual situation, the said decision can have no bearing on initial grants of mining lease where the only permissible criteria are the matters set out in Section 11(3) of the MMDR Act.Issuewe consider Section 11 with the aid of the said Report, it makes it clear that Section 11(1) provides preferential right to the holder of reconnaissance permits or a prospecting licencee who has identified mineral resources in the area allotted to him for grant of a mining lease, subject to certain conditions specified in the proviso appended thereto. The over-riding character of the priority given to the successful prospecting licencee or reconnaissance permit-holder is clear from the fact that each of the subsequent sub-sections in Section 11 is made subject to Section 11(1).32) It is also clear that the main provision in Section 11(2) gives preference to a prior applicant for grant of reconnaissance permit, prospecting licence or mining lease over later applicants where the State Government has not issued any notification. The analysis of the Report makes it clear that the main provision in Section 11(2) applies to "virgin areas". It further makes it clear that to the extent that an area that is previously held or reserved would require a notification for it to become available. The first proviso to Section 11(2) carves out an exception to the preferential right based on priority of applications in point of time referred to in the main provision. It makes it clear that where the State Government subsequently issues a notification inviting applications for grant, the prior and subsequent applications to the notification would be considered as if they were filed on the same day and no priority in order of time would be given. The second proviso requires the State Government to examine the matters set out in Section 11(3) while considering the applications forwe are of the view that the notification calling for applications referred to in the first proviso to Section 11(2) applies only to virginWe have already held that Section 11(3) specifies the matter relevant for purposes of second proviso to Section 11(2). We also referred to the Committees Report. In accordance with the recommendation in the said Report, Section 11(3)(d) was added as part of the substitution of Section 11 in the year 1999. Sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. Thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". Even the residuary clauses in Section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed bywe accept the said position, it would result in anomalous consequences of rendering Rule 60 ultra vires the first proviso to Section 11(2). In fact, this has been highlighted by the Central Government in their affidavit filed before the High Court.37) In addition to what we have stated, it is relevant to note that Section 11(5) again carves out an exception to the preference in favour of prior applicants in the main provision of Section 11(2). It permits the State Government, with the prior approval of the Central Government, to disregard the priority in point of time in the main provision of Section 11(2) and to make a grant in favour of a latter applicant as compared to an earlier applicant for special reasons to be recorded in writing. It also gives an indication that it can have no application to cases in which a notification is issued because, in such a case, both the first proviso to Section 11(2) and Section 11(4) make it clear that all applications will be considered together as having been received on the same date. In view of our interpretation, the proceedings of the Chief Minister and the recommendation dated 06.12.2004 are contrary to the Scheme of the MMDR Act as they were based on Section 11(5) which had no application at all to applications made pursuant to the notification datedsuch circumstances, a harmonious reading of Section 11 with Rules 59 and 60, therefore, mandates an interpretation under which Notifications would be issued under Section 11(4) in the case of categories of areas covered by Rule 59(1). In those circumstances, we are unable to accept the argument of learned senior counsel for Jindal and Kalyani with reference to those provisions.39) The Division Bench has clearly erred in concluding that applications made prior to the notification under Rule 59(1) which are premature and cannot be entertained under Rule 60 would revive upon issuance of the Notification. This conclusion goes against basic principles of statutory interpretation. We have already pointed out the effect of Rule 60 which is couched in negative language that is mandatory in nature. Further, if that was the intention of the Legislature, there was no reason for the Legislature to take pains to state in Rule 60(b) that an application made during the black-out period of 30 days specified in the Notification also would be premature and could not be entertained. Accordingly, the interpretation placed by the Division Bench on Rule 60 would result in reading in a proviso at the end of Rule 60 to the effect that once the 30-days black-out period specified in the Notification contemplated by Rule 59(1)(ii) is over, premature applications would revive. After taking such pains to make it clear that the applications would not be entertained until the end of the 30-days period, surely the Legislature itself would have inserted such a proviso at the end of Rule 60 if that were itsthe light of the above discussion about Section 11(2) alongwith Rules 59 and 60, it should be interpreted that Section 11(2) is to cover virgin areas alone. In view of the same, the Jindals application made prior to the Notification cannot be entertained along with the applications made pursuant to the Notification dated 15.03.2003 because it is Section 11(4) which covers the said Notification along with Rule 59(1) and not the first proviso to Section 11(2) as contended by the respondents.IssueWe have already discussed this issue. In addition to the same, perusal of the order of the High Court in Writ Petition No. 35915 of 2001 shows that the State Government was directed to consider only the application of the MSPL and the applications filed by the impleading applicants and others pursuant to the Notification dated 15.03.2003 in accordance with law and in terms of the provisions of the MMDR Act and MC Rules. In other words, the High Court did not issue any direction to consider all applications made prior to the notification. To put it clear, there was no mandamus from the High Court to consider prior applications. The word "others" qualify the phrase "pursuant to" and not the class of applicants who had applied even prior to the "Held Area Notification" dated 15.03.2003. As a matter of fact, the High Court had merely directed the State Government to consider the applications in accordance with the provisions of the MMDR Act and MC Rules. Even otherwise, the said order was passed without going into the specific provisions in the Act or Rules. Further, the order does not deal with the interpretation of Section 11 or Rules 59 and 60. Hence, the order of the High Court of Karnataka in Ziaulla Sharieffs case does not permit the consideration of Jindals application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.Issuea plain reading of Rule 35, it is clear that the rule permits the State Government to differentiate between the "end use" of the minerals for the purpose of sub-section (2) of Section 11 in addition to the matters in Section 11(3). In the case on hand, all the parties, namely, MSPL, Sandur, Jindal and Kalyani expressed their intention to use iron ore from the mines for producing steel and, therefore, the same "end use" requirement is satisfied.43) Rule 35, at best, permits the State Government to differentiate between different "end uses", for example, the use of iron ore to produce sponge iron instead of steel, or the use of gold in jewellery as compared to medicines. Further, Rule 35 does not differentiate between "proposed" and "existing" end use. Therefore, it could have enabled the State Government to take into account the claim of the respondents - Jindal and Kalyani, whose past investments would not have qualified on the "proposed" investment criterion under Section 11(3)(d), in addition to MSPL and Sandur. This could have been a basis to exclude those with proposed investments in steel plants from consideration.44) It is also relevant to point out that Rule 35 specifies one additional factor apart from the factors set out in Section 11(3). The plain language of Rule 35 requires its application only in cases covered by Section 11(2) and not by Section 11(4). Therefore, to the extent that it is Section 11(4) that covers Notification under Rule 59(1) and not Section 11(2), in this way also, the State Government committed an error in relying on Rule 35 to exclude the appellants, i.e., MSPL and Sandur. To justify the recommendation in favour of the respondents-Jindal and Kalyani, in the proceedings of the Chief Minister, State heavily relied on Rule 35 on the premise that it is intended to give preference to those who have made existing investments in industries based on iron ore and that the respondents - Jindal and Kalyani, qualify on this consideration. However, as discussed above, Rule 35 only permits the State Government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. Moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under Section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.Issuethe Legislature had intended that it should include past investments also, the use of the word "proposed" is superfluous, which could never be the case. Learned senior counsel appearing for the respondents have not pointed out any other provision in the MMDR Act or the MC Rules permitting grant of mining lease based on past commitments or for captive purposes in existing industries.46) As observed in the earlier paragraphs, the strong reliance placed by the respondent-Jindal on the decision of this Court in TISCOs case (supra) (Paras 9,15,20,25,27,34,54,56 & 57) is misplaced. This case concerned solely on the interpretation of Section 8(3) of the MMDR Act in the context of a second renewal of a mining lease in favour of TISCO, and not a fresh grant. It is, in this context the phrase "interest on mineral development" in Section 8(3) was interpreted to include captive requirements. On the other hand, the case of fresh grant is covered by Section 11 of the MMDR Act. Paragraph 54 of the TISCOs case (supra) makes it clear that the case concerned is chromite whose known reserves were not abundant, whereas iron ore is in abundance. Even otherwise, this judgment is of no assistance even on Rule 59(1) of the MC Rules since it was a case of relaxation by the Central Government under Rule 59(2), as is clear from paragraph 15 of the judgment.47) It is useful to mention that subsequent to the decision in TISCO (supra), this Court in Indian Charge Chrome Ltd. & Anr. vs. Union of India & Ors., (2006) 12 SCC 331 (Paras 20 & 26) held that considerations of captive mining cannot be the controlling factor for grant of lease.Issueis clear that the State Government is purely a delegate of Parliament and a statutory functionary, for the purposes of Section 11(3) of the Act, hence it cannot act in a manner that is inconsistent with the provisions of Section 11(1) of the MMDR Act in the grant of mining leases. Furthermore, Section 2 of the Act clearly states that the regulation of mines and mineral development comes within the purview of the Union Government and not the State Government. As a matter of fact, the respondents have not been able to point out any other provision in the MMDR Act or MC Rules permitting grant of mining lease based on past commitments. As rightly pointed out, the State Government has no authority under the MMDR Act to make commitments to any person that it will, in future, grant a mining lease in the event that the person makes investment in any project. Assuming that the State Government had made any such commitment, it could not be possible for it to take an inconsistent position and proceed to notify a particular area. Further, having notified the area, the State Government certainly could not thereafter to honour an alleged commitment by ousting other applicants even if they are more deserving on the merit criteria as provided in Section 11(3).49) In the case of State of Assam & Ors. vs. Om Prakash Mehta & Ors., AIR 1973 SC 678 , this Court observed that the MMDR Act and MC Rules contain the complete code in respect of the grant and renewal of prospecting licences as well as mining leases in lands belonging to Government. In Quarry Owners Association (supra), this Court again reaffirmed the notion that both the Central as well as the State Government act as a mere delegates of Parliament while exercising the powers under the Act and Rules. [Vide M.A. Tulloch (supra), Baijnath Kedio (supra), Kesorams case (supra), and Bharat Cooking Coal Ltd. (supra)]. From this, it becomes amply clear that the State Government has divested of legislative and executive powers with respect to mines and minerals development. In addition to the same, Anjum M.H. Gaswala (supra), Captain Sube Singh (supra), Singhara Singhs case (supra), this Court repeatedly held that the field of granting mining leases is covered by express statute and rules and the grants must be made in accordance with the provisions of the Act and Rules and no other consideration. From a perusal of the above settled legal position, it becomes clear that the State Government cannot grant mining leases keeping in mind any considerations apart from the ones mentioned in the MMDR Act and MC Rules. In those circumstances, no extraneous considerations such as past commitments made by the State Government to Jindal and Kalyani who have already set up steel plants can be entertained by the State Government while granting mining leases and must abide by the Act and Rules.IssueThe Law of Equity cannot save the recommendation in favour of Jindal and Kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. This principle was clearly stated by this Court in the cases of Kedar Lal vs. Hari Lal Sea, (1952) SCR 179 at 186 and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is clear that where the field is covered expressly by Section 11 of the MMDR Act, equitable considerations cannot be taken into account to assess Jindal and Kalyani, when the recommendation in their favour is in violation of statute. It was pointed out that Kalyani does not have a commitment from the State Government regarding its iron ore needs. In the proceedings of the State Government, there is only a statement that it may apply for a lease. No doubt, Jindal has emphasized that it has already set up its steel plant based on the commitments made by the State Government to grant a mining lease and it is in need of iron ore for these steel plants. As observed earlier, commitments made by the State Government cannot be a relevant factor for grant of lease in the teeth of the consideration set out in Section 11(3). If that was to be the sole criterion, the State Government ought not to have notified the area vide `Held Area Notification datedreference to the allegation that MSPL has a mining lease over an area of 722.94 hectares, it was pointed out that in actual it has a lease over an area of 347.22 hectares only. On 05.06.2009, MSPL filed an affidavit before the Division Bench stating that it holds only a single mining lease granted over five decades ago and the major proportion of which has been afforestated. It is also their grievance that the iron ore reserves in this lease have almost been exhausted over a period of 58 years, since 1952. The remaining iron ore cannot support a steel plant of the size that is being set up by MSPL. Since the entire field of granting mining lease is covered by MMDR Act and MC Rules, the State Government cannot use any consideration apart from the ones mentioned in the Act and Rules.IssueIn view of our conclusion, the Division Bench has erred in concluding that the Jindals application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1).53) The Division Bench has also faulted in arriving at the conclusion that the applications made prior to Notification under Rule 59(1) which are premature and cannot be entertained under Rule 60 would revive upon issuance of the Notification which is clearly not the case. As pointed out earlier, had that been the intention of the Legislature, there was no reason for the Legislature to take pains under Rule 60(b) that an application made during the period of 30 days specified in the Notification also would be premature and could not be entertained. If the decision of the Division Bench is taken to its logical conclusion, then it would result in reading in a proviso at the end of Rule 60 to the effect that once the 30 days period specified in the Notification contemplated by Rule 59(1) sub-clause (ii) is over, premature applications would revive. After taking such pains to make it clear that the application would not be entertained until the end of 30 days period, surely the Legislature itself would not have inserted such proviso in Rule 60 if that were its intention. If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.54) The Division Bench has also accepted Jindals contention that if Rule 60 is interpreted to render applications made prior to Rule 59(1) Notification non est, in that event, it would make Rule 59(2) unworkable because persons will normally apply mining lease areas along with an application for relaxation under Rule 59(2). In view of our earlier reasons, this conclusion is clearly misplaced. It is only the request under Rule 59(2) for relaxation in respect of an area that is considered and not the application for grant. It is only after the relaxation under Rule 59(2) by the Central Government of the requirement of the Notification under Rule 59(1) that the applications could be considered for grant of mining lease.55) Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.Issuethe earlier part of our judgment, we have pointed out that the Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to bethe very same recommendation of the State Government is sent back to the Central Government on the administrative side in its role as an approving authority under Section 5(1) without setting aside the impugned judgment, it is more likely that the Central Government would simply follow its previous order. In that event, the Central Government would be influenced by the judgment passed by the Division Bench upholding the grant made in favour of Jindal and Kalyani. Such an exercise would be in the nature of post-decisional hearing which would behave already concluded that the recommendation of the State Government dated 06.12.2004 is not valid with reference to the provisions of MMDR Act and the Rules, hence the invalid recommendation cannot be looked into by the Central Government. Further, proviso to Section 5(1) itself provides only for the Central Government either to grant or reject its approval to the State Governments recommendation in the case of mining lease for a mineral such as iron ore in the First Schedule. In our view, such consideration on the administrative side does not involve consideration of all the applicants based on their mining lease applications and after giving an opportunity of hearing. Inasmuch as the Central Government does not have all relevant materials before it, it may not be in a position to substitute itself for the State Government and, if not, it would be proper, in fact, it would be inconsistent with the provisions of the MMDR Act and the Rules to frame the issue on the administrative side of the Central Government. Even otherwise, inasmuch as we have heard the matter at length and we satisfy that there is a flaw in the recommendation of the State Government which requires reconsideration, we reject the request for remitting the matter to the Central Government for its decision. | 1 | 17,911 | 4,752 | ### 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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at the end of Rule 60 to the effect that once the 30 days period specified in the Notification contemplated by Rule 59(1) sub-clause (ii) is over, premature applications would revive. After taking such pains to make it clear that the application would not be entertained until the end of 30 days period, surely the Legislature itself would not have inserted such proviso in Rule 60 if that were its intention. If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.54) The Division Bench has also accepted Jindals contention that if Rule 60 is interpreted to render applications made prior to Rule 59(1) Notification non est, in that event, it would make Rule 59(2) unworkable because persons will normally apply mining lease areas along with an application for relaxation under Rule 59(2). In view of our earlier reasons, this conclusion is clearly misplaced. It is only the request under Rule 59(2) for relaxation in respect of an area that is considered and not the application for grant. It is only after the relaxation under Rule 59(2) by the Central Government of the requirement of the Notification under Rule 59(1) that the applications could be considered for grant of mining lease.55) Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.Issue (i): Whether it is advisable to remit it to the Central Government: 56) Learned senior counsel appearing for Jindal and Kalyani requested that inasmuch as the Central Government has already given its approval under Section 5 of the MMDR Act in their favour during the pendency of the writ petition, if this Court feels that fresh decision is to be arrived, the same may be remitted to the Central Government. In the earlier part of our judgment, we have pointed out that the Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to be quashed. It is useful to refer Barnard vs. National Dock Labour Board (1953) 1 All E.R. 1113 at 1120 para 1, McFoy vs. United Africa Co. (1961) All E.R. 1169, Pavani Sridhara Rao vs. Govt. of A.P & Ors. (1996) 8 SCC 298 (para 5) and State of Kerala vs. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191 (para 9). If the very same recommendation of the State Government is sent back to the Central Government on the administrative side in its role as an approving authority under Section 5(1) without setting aside the impugned judgment, it is more likely that the Central Government would simply follow its previous order. In that event, the Central Government would be influenced by the judgment passed by the Division Bench upholding the grant made in favour of Jindal and Kalyani. Such an exercise would be in the nature of post-decisional hearing which would be impermissible. [Vide H.L. Trehan & Ors. vs. Union of India & Ors., (1989) 1 SCC 764 (paras 12 & 13) K.I. Shephard & Ors. vs. Union of India & Ors., (1987) 4 SCC 431 (para 16) and Shekhar Ghosh vs. Union of India & Anr., (2007) 1 SCC 331 ]. It is also brought to our notice that as on date the Central Government hears revision petitions through an Executive Officer and without participation of a Judicial Member. It is also pointed out that the exact procedure of the revisional Tribunal has kept changing over the last few months. It is clear that it would not be an independent and efficacious alternative forum in terms of the guidelines laid down by the Constitution Bench in Union of India vs. R. Gandhi, President, Madras Bar Association, JT 2010 (5) SC 553 . As observed by three Judge Bench of this Court in Indian Charge Chrome Ltd. (supra), when there was no valid recommendation by the State Government for the grant of lease, there cannot be any valid approval of the Central Government relying on the defective recommendation. We have already concluded that the recommendation of the State Government dated 06.12.2004 is not valid with reference to the provisions of MMDR Act and the Rules, hence the invalid recommendation cannot be looked into by the Central Government. Further, proviso to Section 5(1) itself provides only for the Central Government either to grant or reject its approval to the State Governments recommendation in the case of mining lease for a mineral such as iron ore in the First Schedule. In our view, such consideration on the administrative side does not involve consideration of all the applicants based on their mining lease applications and after giving an opportunity of hearing. Inasmuch as the Central Government does not have all relevant materials before it, it may not be in a position to substitute itself for the State Government and, if not, it would be proper, in fact, it would be inconsistent with the provisions of the MMDR Act and the Rules to frame the issue on the administrative side of the Central Government. Even otherwise, inasmuch as we have heard the matter at length and we satisfy that there is a flaw in the recommendation of the State Government which requires reconsideration, we reject the request for remitting the matter to the Central Government for its decision. Conclusion:
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mining lease granted over five decades ago and the major proportion of which has been afforestated. It is also their grievance that the iron ore reserves in this lease have almost been exhausted over a period of 58 years, since 1952. The remaining iron ore cannot support a steel plant of the size that is being set up by MSPL. Since the entire field of granting mining lease is covered by MMDR Act and MC Rules, the State Government cannot use any consideration apart from the ones mentioned in the Act and Rules.IssueIn view of our conclusion, the Division Bench has erred in concluding that the Jindals application made prior to the Notification can be entertained along with the applications made pursuant to the said Notification because it is not Section 11(4) which covers the said Notification under Rule 59(1) but the first proviso to Section 11(2). As a matter of fact, the Division Bench did not even mention Section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single Judge hinged on how Section 11(4) would be rendered otiose and redundant if the first proviso to Section 11(2) was taken as governing the consideration of applications under a Notification pursuant to Rule 59(1).53) The Division Bench has also faulted in arriving at the conclusion that the applications made prior to Notification under Rule 59(1) which are premature and cannot be entertained under Rule 60 would revive upon issuance of the Notification which is clearly not the case. As pointed out earlier, had that been the intention of the Legislature, there was no reason for the Legislature to take pains under Rule 60(b) that an application made during the period of 30 days specified in the Notification also would be premature and could not be entertained. If the decision of the Division Bench is taken to its logical conclusion, then it would result in reading in a proviso at the end of Rule 60 to the effect that once the 30 days period specified in the Notification contemplated by Rule 59(1) sub-clause (ii) is over, premature applications would revive. After taking such pains to make it clear that the application would not be entertained until the end of 30 days period, surely the Legislature itself would not have inserted such proviso in Rule 60 if that were its intention. If such premature applications are allowed to be entertained, it would result in the State Government giving out mining leases to favoured persons without notice to the general public.54) The Division Bench has also accepted Jindals contention that if Rule 60 is interpreted to render applications made prior to Rule 59(1) Notification non est, in that event, it would make Rule 59(2) unworkable because persons will normally apply mining lease areas along with an application for relaxation under Rule 59(2). In view of our earlier reasons, this conclusion is clearly misplaced. It is only the request under Rule 59(2) for relaxation in respect of an area that is considered and not the application for grant. It is only after the relaxation under Rule 59(2) by the Central Government of the requirement of the Notification under Rule 59(1) that the applications could be considered for grant of mining lease.55) Though the learned single Judge in his order dated 07.08.2008 quashed the communication/recommendation of the State Government dated 06.12.2004 proposing to grant mining lease to Jindal and Kalyani, however, the learned single Judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while approving earlier part of his order and quashing the communication/recommendation of the State Government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the Act and the Rules. The said observations/directions are deleted.Issuethe earlier part of our judgment, we have pointed out that the Central Government considers only the materials forwarded by the State Government along with its recommendation. As rightly pointed out, if the recommendation of the State Government cannot be upheld in law, all consequential orders including the subsequent approval by the Central Government are also liable to bethe very same recommendation of the State Government is sent back to the Central Government on the administrative side in its role as an approving authority under Section 5(1) without setting aside the impugned judgment, it is more likely that the Central Government would simply follow its previous order. In that event, the Central Government would be influenced by the judgment passed by the Division Bench upholding the grant made in favour of Jindal and Kalyani. Such an exercise would be in the nature of post-decisional hearing which would behave already concluded that the recommendation of the State Government dated 06.12.2004 is not valid with reference to the provisions of MMDR Act and the Rules, hence the invalid recommendation cannot be looked into by the Central Government. Further, proviso to Section 5(1) itself provides only for the Central Government either to grant or reject its approval to the State Governments recommendation in the case of mining lease for a mineral such as iron ore in the First Schedule. In our view, such consideration on the administrative side does not involve consideration of all the applicants based on their mining lease applications and after giving an opportunity of hearing. Inasmuch as the Central Government does not have all relevant materials before it, it may not be in a position to substitute itself for the State Government and, if not, it would be proper, in fact, it would be inconsistent with the provisions of the MMDR Act and the Rules to frame the issue on the administrative side of the Central Government. Even otherwise, inasmuch as we have heard the matter at length and we satisfy that there is a flaw in the recommendation of the State Government which requires reconsideration, we reject the request for remitting the matter to the Central Government for its decision.
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MUNICIPAL CORP. OF GREATER MUMBAI & ORS Vs. HIRAMAN SITARAM DEORUKHAR & ORS | plan can be permitted. 8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection. 9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. 10. This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715 had laid down that protection of environment is one of the legal duties. While setting up the industries which is essential for the economic development but measures should be taken to reduce the risk for community by taking all necessary steps for protection of environment. In M.C. Mehta v. Union of India (1987) Supp. SCC 131, certain directions were issued by this Court regarding hazardous chemicals. Relying partly on Article 21, it was observed that life, public health and ecology are priority and cannot be lost sight of over employment and loss of revenue. This Court in Subhash Kumar v. State of Bihar & Ors. (1991) 1 SCC 598 has held that right to pollution-free air falls within Article 21. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 , it was held that any disturbance to the basic environment, air or water and soil which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. Precautionary principle had been developed by this Court in M.C. Mehta v. Union of India & Ors. (1997) 3 SCC 715 which requires the State to anticipate, prevent and attack the causes of environmental degradation. 11. This Court in Municipal Council, Ratlam v. Vardhichand & Ors. (1980) 4 SCC 162 has observed that the nature of judicial process is not purely adjudicatory function. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes fragile. This Court has laid down that once directive principles have found statutory recognition, the financial or such other disability cannot exonerate the authority from statutory liability. They cannot take the defence to defy their duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. 12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act. | 1[ds]5. The Municipal Corporation had filed a Map (Annexure P-4) which indicates that the area marked with the green color is reserved for the purpose of the garden, whereas the area marked with red cross marks in the green color portion is disputed portion which is encircled by the other area reserved for the garden. The land under appeal is 3090 Sq. yard, whereas the total area reserved for the garden, is 90,500 Sq. yard. The area in question had been reserved for garden and it appears that Municipal Corporation had taken the steps which were in their hands in order to preserve the area as such. However, there was a failure on the part of the State Authorities to act timely and to issue a declaration under Section 6 of the Land Acquisition Act as required under the provisions contained in Section 126 of the MRTP Act6. It cannot be disputed that reservation made under Section 127 of the MRTP Act stands lapsed. At the same time area had been reserved for the garden.It could not have been permitted to lapse due to inexplicable reasons7. This court has laid down that public interest requires some areas to be preserved by means of open spaces of parks and play grounds, and that there cannot be any change or action contrary to legislative intent, as that would be an abuse of statutory powers vested in the authorities. Once the area had been reserved, authorities are bound to take steps to preserve it in that method and manner only. These spaces are meant for the common man, and there is a duty cast upon the authorities to preserve such spaces. Such matters are of great public concern and vital interest to be taken care of in the development scheme. The public interest requires not only reservation but also preservation of such parks and open spaces. In our opinion, such spaces cannot be permitted, by an action or inaction or otherwise, to be converted for some other purpose, and no development contrary to plan can be permitted8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act. | 1 | 3,505 | 1,124 | ### 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:
plan can be permitted. 8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection. 9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. 10. This Court in Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715 had laid down that protection of environment is one of the legal duties. While setting up the industries which is essential for the economic development but measures should be taken to reduce the risk for community by taking all necessary steps for protection of environment. In M.C. Mehta v. Union of India (1987) Supp. SCC 131, certain directions were issued by this Court regarding hazardous chemicals. Relying partly on Article 21, it was observed that life, public health and ecology are priority and cannot be lost sight of over employment and loss of revenue. This Court in Subhash Kumar v. State of Bihar & Ors. (1991) 1 SCC 598 has held that right to pollution-free air falls within Article 21. In M.C. Mehta v. Kamal Nath (2000) 6 SCC 213 , it was held that any disturbance to the basic environment, air or water and soil which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. Precautionary principle had been developed by this Court in M.C. Mehta v. Union of India & Ors. (1997) 3 SCC 715 which requires the State to anticipate, prevent and attack the causes of environmental degradation. 11. This Court in Municipal Council, Ratlam v. Vardhichand & Ors. (1980) 4 SCC 162 has observed that the nature of judicial process is not purely adjudicatory function. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes fragile. This Court has laid down that once directive principles have found statutory recognition, the financial or such other disability cannot exonerate the authority from statutory liability. They cannot take the defence to defy their duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. 12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act.
### Response:
1
### Explanation:
the garden, whereas the area marked with red cross marks in the green color portion is disputed portion which is encircled by the other area reserved for the garden. The land under appeal is 3090 Sq. yard, whereas the total area reserved for the garden, is 90,500 Sq. yard. The area in question had been reserved for garden and it appears that Municipal Corporation had taken the steps which were in their hands in order to preserve the area as such. However, there was a failure on the part of the State Authorities to act timely and to issue a declaration under Section 6 of the Land Acquisition Act as required under the provisions contained in Section 126 of the MRTP Act6. It cannot be disputed that reservation made under Section 127 of the MRTP Act stands lapsed. At the same time area had been reserved for the garden.It could not have been permitted to lapse due to inexplicable reasons7. This court has laid down that public interest requires some areas to be preserved by means of open spaces of parks and play grounds, and that there cannot be any change or action contrary to legislative intent, as that would be an abuse of statutory powers vested in the authorities. Once the area had been reserved, authorities are bound to take steps to preserve it in that method and manner only. These spaces are meant for the common man, and there is a duty cast upon the authorities to preserve such spaces. Such matters are of great public concern and vital interest to be taken care of in the development scheme. The public interest requires not only reservation but also preservation of such parks and open spaces. In our opinion, such spaces cannot be permitted, by an action or inaction or otherwise, to be converted for some other purpose, and no development contrary to plan can be permitted8. The importance of open spaces for parks and play grounds is of universal recognition, and reservation for such places in development scheme is a legitimate exercise of statutory power, with the rationale of protection of the environment and of reducing ill effects of urbanisation. It is in the public interest to avoid unnecessary conversion of ‘open spaces land? to strictly urban uses, for gardens provide fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. Once such a scheme had been prepared in accordance with the provisions of the MRTP Act, by inaction legislative intent could not be permitted to become a statutory mockery. Government authorities and officers were bound to preserve it and to take all steps envisaged for protection9. It could be legitimately expected of the authority to take timely steps in which they have failed. Their inaction tantamount to wrongful deprivation of open spaces/garden to public. This Court in Animal and Environment Legal Defence Fund v. Union of India & Ors. (1997) 3 SCC 549 has laid down that there is duty to preserve the ecology of the forest area. This Court has enunciated the doctrine of the public trust based on ancient theory of Roman Empire. Idea of this theory was that certain common property such as lands, waters and airs were held by the Government in trusteeship for smooth and unimpaired use of public. Air, sea, waters and the forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. The American courts in recent cases expanded the concept of this doctrine. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The aforesaid concept laid down by this Court in M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 and this Court held that the State Government has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management12. In the light of aforesaid principles, it is shocking in the instant case that in spite of prayer having been made on behalf of the Municipal Corporation, the State Government did not issue a declaration under Section 126 of the MRTP Act. Thus the provisions for open spaces in the statutory scheme were in effect made a statutory mockery. The authorities were bound to act with circumspection and to act timely to take steps to issue the requisite declaration as per development plan. They were well aware of the consequences. The inaction was impermissible in such an issue of great public importance, having constitutional imperative under Article 21 read with Article 48A and further it was in breach of fundamental duty imposed under Article 51A(g) to protect natural environment, and having the potential to lead to the derogation of the public interest. Such inaction is intolerable, and the area ought to be preserved for park only. More so, considering its situation that it is encircled by garden area, the court cannot be a moot spectator and permit statutory provisions to become a mockery by inaction or lethargy on the part of the unscrupulous authorities. No reason is coming forth as to why steps were not taken by the concerned authorities to act in the public interest, as per the statutory mandate, and as per development plan. The duty is cast upon the authorities to act as cestui que trust with respect to the public park. As a matter of fact, Authorities ought to have issued forthwith a requisite declaration and ought to have completed the proceedings. Be that as it may, since there is lapse of reservation, and the land is still required for public park, and since now the provisions of Right to Fare Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short the 2013 Act) have come into force, obviously the compensation has to be paid in accordance with the provisions contained in the said Act.
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Caltex (India) Limited Vs. E. Fernandes & Another | whole petroleum industry and the safety of life and property for which it was necessary to maintain discipline rigidly did not agree to a punishment less than dismissal in view of such gross and wilful misconduct as had been proved. The Industrial Tribunal in the result rejected the application of the appellants.3. The appellants preferred an appeal to the Labour Appellate Tribunal for having the said order of the Industrial Tribunal set aside and for grant to the appellants of permission to dismiss the first respondent from their employ. The Labour Appellate Tribunal by its decision dated the 1st April, 1953, set aside the said order of the Industrial Tribunal and granted such permission to the appellants. The Labour Appellate Tribunal was of opinion that there was a substantial question of law involved and that there had been a perverse exercise of jurisdiction by the Industrial Tribunal. It held that in a case of this kind where the offence was prima facie proved and there was not even an allegation of want of bona fides, unfair labour practice or victimization on the part of the appellants, much less any proof thereof, the Industrial Tribunal had no. jurisdiction to refuse the permission sought for.4. The first respondent thereupon presented a petition to the High Court of Judicature at Bombay, being Miscellaneous No. 167 of 1953, for issue of a writ of certiorari or any other appropriate writ or directions under Art. 226 of the Constitution on the ground, inter alia, that the said decision of the Labour Appellate Tribunal was without jurisdiction inasmuch as the said appeal before the Labour Appellate Tribunal did not involve any substantial question of law.5. Mr. Justice Desai issued a rule nisi on the 29th April, 1953, to show cause why the writ prayed for should not be issued. The said petition came on for hearing before the said learned judge who delivered a considered judgement on the 14th July, 1953, dismissing the said petition and discharging the said rule nisi. The first respondent then preferred an appeal in the High Court of Bombay, being Appeal No. 77 of 1953, on the ground, inter alia, that the Industrial Tribunal hearing even an application under section 33 of the Industrial Disputes Act, was meant to function as an arbitrator with a wide and unfettered discretion and that, in the circumstances, the learned judge, Mr. Justice Desai, had erred in holding that the first respondents contention that the discretion of the Industrial Tribunal under section 33 of the Act was unfettered raised a substantial question of law.6. The said appeal was heard by the Division Bench of the High Court of Bombay consisting of Chagla, C.J. and Shah, J., and the learned Judges allowed the said appeal and issued a writ against the 2nd respondent, the Labour Appellate Tribunal of India, Bombay, holding that the Labour Appellate Tribunal had no. jurisdiction to entertain the appeal as it did not involve any substantial question of law. A petition filed by the appellants before the High Court for the grant of a certificate under Art. 133 (1) (c) of the Constitution was also dismissed with the result that the appellants applied for and obtained from this Court Special Leave to Appeal under Art. 136 of the Constitution.7. This appeal raises the identical question which has been the subject-matter of our decision in Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union, 1953 SCR 780 : (AIR 1953 SC 241 ) (A), The Automobile Products of India Ltd. v. Rukmani Bala, 1955-1 SCR 1241 : ( (S) AIR 1955 SC 258 )(B) as also Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup, Civil Appeal No. 244 of 1954 : ( (S) AIR 1957 SC 82 ) (C). We have clearly laid down there that the Industrial Tribunal has no. jurisdiction while entertaining an application under section 33 of the Industrial Disputes Act, 1947, to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with the offence which has been proved against the workmen. The only jurisdiction which the Industrial Tribunal has under section 33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or victimization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no. principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fides came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no. power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal was wrong, and in so far as the Industrial Tribunal had sought to impose on the appellants the conditions set out hereinabove before the requisite permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour Appellate Tribunal. That beinng so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal, and the decision of the Division Bench of the High Court at Bombay in exercise of its appellant jurisdiction holding that the Labour Appellate Tribunal had no. jurisdiction to entertain such appeal was clearly wrong. | 1[ds]We have clearly laid down there that the Industrial Tribunal has no. jurisdiction while entertaining an application under section 33 of the Industrial Disputes Act, 1947, to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with the offence which has been proved against the workmen. The only jurisdiction which the Industrial Tribunal has under section 33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or victimization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no. principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fides came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no. power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal was wrong, and in so far as the Industrial Tribunal had sought to impose on the appellants the conditions set out hereinabove before the requisite permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour Appellate Tribunal. That beinng so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal, and the decision of the Division Bench of the High Court at Bombay in exercise of its appellant jurisdiction holding that the Labour Appellate Tribunal had no. jurisdiction to entertain such appeal was clearly wrong. | 1 | 1,654 | 394 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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whole petroleum industry and the safety of life and property for which it was necessary to maintain discipline rigidly did not agree to a punishment less than dismissal in view of such gross and wilful misconduct as had been proved. The Industrial Tribunal in the result rejected the application of the appellants.3. The appellants preferred an appeal to the Labour Appellate Tribunal for having the said order of the Industrial Tribunal set aside and for grant to the appellants of permission to dismiss the first respondent from their employ. The Labour Appellate Tribunal by its decision dated the 1st April, 1953, set aside the said order of the Industrial Tribunal and granted such permission to the appellants. The Labour Appellate Tribunal was of opinion that there was a substantial question of law involved and that there had been a perverse exercise of jurisdiction by the Industrial Tribunal. It held that in a case of this kind where the offence was prima facie proved and there was not even an allegation of want of bona fides, unfair labour practice or victimization on the part of the appellants, much less any proof thereof, the Industrial Tribunal had no. jurisdiction to refuse the permission sought for.4. The first respondent thereupon presented a petition to the High Court of Judicature at Bombay, being Miscellaneous No. 167 of 1953, for issue of a writ of certiorari or any other appropriate writ or directions under Art. 226 of the Constitution on the ground, inter alia, that the said decision of the Labour Appellate Tribunal was without jurisdiction inasmuch as the said appeal before the Labour Appellate Tribunal did not involve any substantial question of law.5. Mr. Justice Desai issued a rule nisi on the 29th April, 1953, to show cause why the writ prayed for should not be issued. The said petition came on for hearing before the said learned judge who delivered a considered judgement on the 14th July, 1953, dismissing the said petition and discharging the said rule nisi. The first respondent then preferred an appeal in the High Court of Bombay, being Appeal No. 77 of 1953, on the ground, inter alia, that the Industrial Tribunal hearing even an application under section 33 of the Industrial Disputes Act, was meant to function as an arbitrator with a wide and unfettered discretion and that, in the circumstances, the learned judge, Mr. Justice Desai, had erred in holding that the first respondents contention that the discretion of the Industrial Tribunal under section 33 of the Act was unfettered raised a substantial question of law.6. The said appeal was heard by the Division Bench of the High Court of Bombay consisting of Chagla, C.J. and Shah, J., and the learned Judges allowed the said appeal and issued a writ against the 2nd respondent, the Labour Appellate Tribunal of India, Bombay, holding that the Labour Appellate Tribunal had no. jurisdiction to entertain the appeal as it did not involve any substantial question of law. A petition filed by the appellants before the High Court for the grant of a certificate under Art. 133 (1) (c) of the Constitution was also dismissed with the result that the appellants applied for and obtained from this Court Special Leave to Appeal under Art. 136 of the Constitution.7. This appeal raises the identical question which has been the subject-matter of our decision in Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union, 1953 SCR 780 : (AIR 1953 SC 241 ) (A), The Automobile Products of India Ltd. v. Rukmani Bala, 1955-1 SCR 1241 : ( (S) AIR 1955 SC 258 )(B) as also Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup, Civil Appeal No. 244 of 1954 : ( (S) AIR 1957 SC 82 ) (C). We have clearly laid down there that the Industrial Tribunal has no. jurisdiction while entertaining an application under section 33 of the Industrial Disputes Act, 1947, to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with the offence which has been proved against the workmen. The only jurisdiction which the Industrial Tribunal has under section 33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or victimization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no. principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fides came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no. power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal was wrong, and in so far as the Industrial Tribunal had sought to impose on the appellants the conditions set out hereinabove before the requisite permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour Appellate Tribunal. That beinng so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal, and the decision of the Division Bench of the High Court at Bombay in exercise of its appellant jurisdiction holding that the Labour Appellate Tribunal had no. jurisdiction to entertain such appeal was clearly wrong.
### Response:
1
### Explanation:
We have clearly laid down there that the Industrial Tribunal has no. jurisdiction while entertaining an application under section 33 of the Industrial Disputes Act, 1947, to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with the offence which has been proved against the workmen. The only jurisdiction which the Industrial Tribunal has under section 33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or victimization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no. principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fides came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no. power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal was wrong, and in so far as the Industrial Tribunal had sought to impose on the appellants the conditions set out hereinabove before the requisite permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour Appellate Tribunal. That beinng so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal, and the decision of the Division Bench of the High Court at Bombay in exercise of its appellant jurisdiction holding that the Labour Appellate Tribunal had no. jurisdiction to entertain such appeal was clearly wrong.
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Alok Kaushik Vs. Mrs Bhuvaneshwari Ramanathan and Others | professional and the expenses shall constitute insolvency resolution process costs. Explanation.– For the purposes of this regulation, expenses include the fee to be paid to the resolution professional, fee to be paid to insolvency professional entity, if any, and fee to be paid to professionals, if any, and other expenses to be incurred by the resolution professional. 16. Where an application for withdrawal is filed under Section 12A of the IBC, a provision has been made in Regulation 30A(7) in regard to the deposit of expenses. Regulation 30A(7) provides as follows: 30A . Withdrawal of application. […] (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code. 17. Clause 2 of Regulation 30A, which is referred to in clause 7, is as follows: (2) The application under sub-regulation (1) shall be made in formFA of the Schedule accompanied by a bank guarantee– (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of subregulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of subregulation (1). 18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms: 71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist. (emphasis supplied) 19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority. 20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs. | 1[ds]18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms:71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority.20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs. | 1 | 2,785 | 793 | ### 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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professional and the expenses shall constitute insolvency resolution process costs. Explanation.– For the purposes of this regulation, expenses include the fee to be paid to the resolution professional, fee to be paid to insolvency professional entity, if any, and fee to be paid to professionals, if any, and other expenses to be incurred by the resolution professional. 16. Where an application for withdrawal is filed under Section 12A of the IBC, a provision has been made in Regulation 30A(7) in regard to the deposit of expenses. Regulation 30A(7) provides as follows: 30A . Withdrawal of application. […] (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code. 17. Clause 2 of Regulation 30A, which is referred to in clause 7, is as follows: (2) The application under sub-regulation (1) shall be made in formFA of the Schedule accompanied by a bank guarantee– (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of subregulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of subregulation (1). 18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms: 71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist. (emphasis supplied) 19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority. 20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs.
### Response:
1
### Explanation:
18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms:71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority.20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs.
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Director Aryabhatta Research Institute of Observational Sciences (ARIES) Vs. Devendra Joshi and Ors | Respondent No. 1 pertaining to his unsatisfactory work. The said letters were issued prior to the representations made by Respondent No. 1 against the appointment of Respondent No. 4. A perusal of the Memorandum dated 23rd December, 2008 would show that there is a prima facie finding recorded in the preliminary inquiry against Respondent No. 1 which cannot be attributed to the representation made by Respondent No. 1 against the appointment of Respondent No. 4. We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No. 4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to indicate that Respondent No. 1 was informed about his unsatisfactory performance during the period of his probation.12. A plain reading of the Order dated 31st December, 2008 would show that it is an innocuous order terminating the services of Respondent No. 1 at the end of the probation period. As no allegations of misconduct are made in the Order, there is no stigma. Even the High Court is of the opinion that there is no stigma. The fact remains that there was a preliminary inquiry conducted by the Management in which there was a prima facie finding recorded against the Respondent No. 1 of his involvement in an act of misconduct. The Appellants decided not to proceed further and hold a detailed inquiry to prove the misconduct of Respondent No. 1. However, the service of Respondent No. 1 was terminated at the end of the period of probation which cannot be said punitive. Therefore, the Order dated 31st December, 2008 is an order of termination simpliciter. In view of the above it cannot be said that misconduct was the foundation for the order of termination.13. It will be useful to refer to the relevant portion of a judgment of this Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd.1, wherein it was held as follows:33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the Rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases. | 1[ds]11. We do not agree with the findings of the High Court that the Order dated 31st December, 2008 was passed only to punish Respondent No. 1 for his objection to the appointment of Respondent No. 4 to the post of Engineer-C (Civil). As the appointment of Respondent No. 4 was not assailed by Respondent No. 1 in the Writ Petition, the High Court ought not to have adjudicated the issue of validity of the appointment of Respondent No. 4. The High Court committed an error in ignoring the letters dated 24th July, 2008 and 18th August, 2008 written by the Management to Respondent No. 1 pertaining to his unsatisfactory work. The said letters were issued prior to the representations made by Respondent No. 1 against the appointment of Respondent No. 4. A perusal of the Memorandum dated 23rd December, 2008 would show that there is a prima facie finding recorded in the preliminary inquiry against Respondent No. 1 which cannot be attributed to the representation made by Respondent No. 1 against the appointment of Respondent No. 4. We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No. 4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to indicate that Respondent No. 1 was informed about his unsatisfactory performance during the period of his probation12. A plain reading of the Order dated 31st December, 2008 would show that it is an innocuous order terminating the services of Respondent No. 1 at the end of the probation period. As no allegations of misconduct are made in the Order, there is no stigma. Even the High Court is of the opinion that there is no stigma. The fact remains that there was a preliminary inquiry conducted by the Management in which there was a prima facie finding recorded against the Respondent No. 1 of his involvement in an act of misconduct. The Appellants decided not to proceed further and hold a detailed inquiry to prove the misconduct of Respondent No. 1. However, the service of Respondent No. 1 was terminated at the end of the period of probation which cannot be said punitive. Therefore, the Order dated 31st December, 2008 is an order of termination simpliciter. In view of the above it cannot be said that misconduct was the foundation for the order of termination. | 1 | 2,710 | 500 | ### 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:
Respondent No. 1 pertaining to his unsatisfactory work. The said letters were issued prior to the representations made by Respondent No. 1 against the appointment of Respondent No. 4. A perusal of the Memorandum dated 23rd December, 2008 would show that there is a prima facie finding recorded in the preliminary inquiry against Respondent No. 1 which cannot be attributed to the representation made by Respondent No. 1 against the appointment of Respondent No. 4. We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No. 4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to indicate that Respondent No. 1 was informed about his unsatisfactory performance during the period of his probation.12. A plain reading of the Order dated 31st December, 2008 would show that it is an innocuous order terminating the services of Respondent No. 1 at the end of the probation period. As no allegations of misconduct are made in the Order, there is no stigma. Even the High Court is of the opinion that there is no stigma. The fact remains that there was a preliminary inquiry conducted by the Management in which there was a prima facie finding recorded against the Respondent No. 1 of his involvement in an act of misconduct. The Appellants decided not to proceed further and hold a detailed inquiry to prove the misconduct of Respondent No. 1. However, the service of Respondent No. 1 was terminated at the end of the period of probation which cannot be said punitive. Therefore, the Order dated 31st December, 2008 is an order of termination simpliciter. In view of the above it cannot be said that misconduct was the foundation for the order of termination.13. It will be useful to refer to the relevant portion of a judgment of this Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd.1, wherein it was held as follows:33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the Rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.
### Response:
1
### Explanation:
11. We do not agree with the findings of the High Court that the Order dated 31st December, 2008 was passed only to punish Respondent No. 1 for his objection to the appointment of Respondent No. 4 to the post of Engineer-C (Civil). As the appointment of Respondent No. 4 was not assailed by Respondent No. 1 in the Writ Petition, the High Court ought not to have adjudicated the issue of validity of the appointment of Respondent No. 4. The High Court committed an error in ignoring the letters dated 24th July, 2008 and 18th August, 2008 written by the Management to Respondent No. 1 pertaining to his unsatisfactory work. The said letters were issued prior to the representations made by Respondent No. 1 against the appointment of Respondent No. 4. A perusal of the Memorandum dated 23rd December, 2008 would show that there is a prima facie finding recorded in the preliminary inquiry against Respondent No. 1 which cannot be attributed to the representation made by Respondent No. 1 against the appointment of Respondent No. 4. We are constrained to hold that there is no basis for the finding of the High Court that the real reason for the Order dated 31st December, 2008 was to ensure that the manner in which Respondent No. 4 was appointed to the post of Engineer-C (Civil) remained concealed. We are satisfied that the Order dated 31st December, 2008 does not suffer from any infirmity and it is an Order of termination simpliciter. There is sufficient material on record to indicate that Respondent No. 1 was informed about his unsatisfactory performance during the period of his probation12. A plain reading of the Order dated 31st December, 2008 would show that it is an innocuous order terminating the services of Respondent No. 1 at the end of the probation period. As no allegations of misconduct are made in the Order, there is no stigma. Even the High Court is of the opinion that there is no stigma. The fact remains that there was a preliminary inquiry conducted by the Management in which there was a prima facie finding recorded against the Respondent No. 1 of his involvement in an act of misconduct. The Appellants decided not to proceed further and hold a detailed inquiry to prove the misconduct of Respondent No. 1. However, the service of Respondent No. 1 was terminated at the end of the period of probation which cannot be said punitive. Therefore, the Order dated 31st December, 2008 is an order of termination simpliciter. In view of the above it cannot be said that misconduct was the foundation for the order of termination.
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Indian & General Investment Trust Ltd Vs. Shri Purna Chandra Mardaraj & Co | principles in Cls. (a) to (f) of sub-s. (2) of S. 20, as to how exactly the calculation has to be made. There is a1so a slight difference in the method of calculation adopted by the Money-Lenders Act and the Abolition Act. But notwithstanding these circumstances, we are of opinion that, in order to determine the principal amount legally and justly due to each creditor as laid down in S. 20 (1) of the Abolition Act, it is the duty of the Claims Officer to find out whether, in respect of a Claim that is made by a creditor, there is a legal impediment for recognising the same, i.e., whether the claim is such which will be recognised by a Judicial Tribunal. 25. The legislature emphasises upon this aspect even in S. 18 (1) (a) of the Abolition Act. The purpose of a claim being made by a secured creditor, under S 18 (1) (a) is, as we have already, pointed out, for the purpose of determining the amount of debt legally and justly payable to each creditor in respect of his claim. The same idea again, reiterated by the legislature in Section 20 (1) of the Abolition Act when it makes it obligatory on the Claims Officer to determine the principal amount, legally and justly due to each creditor. No rules, as contemplated under S. 20 (1) of the Abolition Act, have been brought to our notice. The expression legally and justly due must, certainly, in our opinion, mean that before a claim is recognized by the Claims Officer he must be satisfied that the principal amount covered by that claim is legally and justly due, i.e., that such a claim, if sought to be enforced in a Court or Judicial Tribunal, will find recognition on the basis that it does not suffer from any legal infirmity. 26. In this case, even according to the appellant, in respect of the principal amount of Rs. 77,500 advanced under the mortgage of December 18, 1906, admittedly, a sum of Rs. 1,77,349-18-0 has been received by him as interest. This amount is more than two times the principal amount advanced under this mortgage. If, in spite of this, the present claim had been made for recovery of further amounts, on the basis of this mortgage, by the appellant, in any Court, it is needless to state that the Court would have applied the provisions of the Money-Lenders Act. By applying Ss. 10 and 11 of this Act, the Court would have dome to the conclusion that the appellant is not entitled to recover any more amounts inasmuch as the entire claim must be considered to have been satisfied by the respondent, having paid a sum of Rs. 1,77,349-18-0 by way of interest. That means, the Court would have come to the conclusion that no further amounts, by way of principal, are legally and justly due to the appellant, and, quite naturally, the further finding would be that no interest at all is due. If no Court would have recognized the present claim of the appellant, the same principles must be applicable when the Claims Officer is also called upon, under S. 20 (1) of the Abolition Act, to determine the principal amount legally and justly due. For the purpose of determining whether the principal amount is legally and justly due, he would be perfectly justified in relying on any provisions of other statutes bearing upon that subject - in this particular case, the provisions of the Money-Lenders Act. 27. Mr. B. Sen, learned counsel, has urged that in order to consider a claim made by the creditor, the jurisdiction of the Claims Officer is restricted, by the various provisions contained in Cls. (a) to (f) of Section 20 (2) of the Abolition Act. We are not inclined to accept this large contention of the learned counsel for the appellant. For instance, if a plea of discharge is raised by debtor in a claim proceeding, or, if a plea is raised by a debtor that the claim is barred by the law of Limitation, no provision is made in Cls. (a) to (f) of S. 20 (2) giving jurisdiction to the Claims Officer either to entertain such objection or to investigate the same. Acceptance of the contentions of the learned counse1 for the appellant will lead to this conclusion that when a claim is made under the Abolition Act, the Claims Officer will have, straightway to determine the principal amount and interest under sub-s. (2) of S. 20 without considering the question as to whether the claim is true or whether it is barred by any other law, or whether the claim is still subsisting. These are all matters which, in our opinion, properly arise for consideration when a Claims Officer has to determine the principal amount under S. 20 (1) of the Abolition Act. The expression legally and justly due, occurring in S. 20 (1), clearly indicates that the first and initial duty of the Claims Officer is to find out whether any principal amount is at all due to the creditor which he is entitled to recover either in law or justly. It may be that, after arriving on this aspect, at a conclusion, one way or the other, and depending upon that decision, the Claims Officer will have to adjudicate upon the rights of the parties, having due regard to the various matters mentioned in Cls. (a) to (f) of sub-s. (2) of S. 20.We are, therefore, satisfied that the Board is correct when it held that the provisions of the Money-Lenders Act can be taken into account by the Claims Officer, under S. 20 (1) of the Abolition Act. If the provisions of the Money-Lenders Act apply, as they have been applied by the Board, there is no controversy that the claim under the mortgage of December 18, 1906, must be considered to have been extinguished and that no further amounts will be due, as held by the Board. | 0[ds]We do, no doubt, see force in the contention of the learned counsel, for the appellant, that there is no specific provision in the Abolition Act making any reference to the Money-Lenders Act. We are also conscious that the Abolition Act does lay down some principles in Cls. (a) to (f) of sub-s. (2) of S. 20, as to how exactly the calculation has to be made. There is a1so a slight difference in the method of calculation adopted by the Money-Lenders Act and the Abolition Act. But notwithstanding these circumstances, we are of opinion that, in order to determine the principal amount legally and justly due to each creditor as laid down in S. 20 (1) of the Abolition Act, it is the duty of the Claims Officer to find out whether, in respect of a Claim that is made by a creditor, there is a legal impediment for recognising the same, i.e., whether the claim is such which will be recognised by a Judicial TribunalWe are not inclined to accept this large contention of the learned counsel for the appellant. For instance, if a plea of discharge is raised by debtor in a claim proceeding, or, if a plea is raised by a debtor that the claim is barred by the law of Limitation, no provision is made in Cls. (a) to (f) of S. 20 (2) giving jurisdiction to the Claims Officer either to entertain such objection or to investigate the same. Acceptance of the contentions of the learned counse1 for the appellant will lead to this conclusion that when a claim is made under the Abolition Act, the Claims Officer will have, straightway to determine the principal amount and interest under sub-s. (2) of S. 20 without considering the question as to whether the claim is true or whether it is barred by any other law, or whether the claim is still subsisting. These are all matters which, in our opinion, properly arise for consideration when a Claims Officer has to determine the principal amount under S. 20 (1) of the Abolition Act. The expression legally and justly due, occurring in S. 20 (1), clearly indicates that the first and initial duty of the Claims Officer is to find out whether any principal amount is at all due to the creditor which he is entitled to recover either in law or justly. It may be that, after arriving on this aspect, at a conclusion, one way or the other, and depending upon that decision, the Claims Officer will have to adjudicate upon the rights of the parties, having due regard to the various matters mentioned in Cls. (a) to (f) of sub-s. (2) of S. 20.We are, therefore, satisfied that the Board is correct when it held that the provisions of the Money-Lenders Act can be taken into account by the Claims Officer, under S. 20 (1) of the Abolition Act. If the provisions of the Money-Lenders Act apply, as they have been applied by the Board, there is no controversy that the claim under the mortgage of December 18, 1906, must be considered to have been extinguished and that no further amounts will be due, as held by the Board6. Under S. 18 (1) (a) of the Abolition Act, every creditor, whose debt is secured by the mortgage of or is a charge on, any estate or part thereof, which has vested in the State Government under S. 3, has to file a claim within the period mentioned therein, to the Claims Officer, for the purpose of determining the amount of debt legally and justly payable to each such creditor in respect of his claim. Though the Claim included the third mortgage dated October 21, 1935, also, there does not appear to have been much of a serious contest about the liability under that mortgage and, there both the Claims Officer, as well as the High Court, on appeal, have substantially accepted the claim of the appellant. Therefore, the rights of the parties under that mortgage do not also arise for consideration, in this appeal17. Though, in this Court, on beha1f of the. Mr. G. L. Sanghi, learned counsel, has challenged the correctness of the decision of the Board about they of S. 17 of thes Act, we do not think it necessary to go into that aspect, because we are accepting his contention that the Board was justified in holding that the mortgage has been extinguished under Ss. 10 and 11 of the | 0 | 5,224 | 862 | ### 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:
principles in Cls. (a) to (f) of sub-s. (2) of S. 20, as to how exactly the calculation has to be made. There is a1so a slight difference in the method of calculation adopted by the Money-Lenders Act and the Abolition Act. But notwithstanding these circumstances, we are of opinion that, in order to determine the principal amount legally and justly due to each creditor as laid down in S. 20 (1) of the Abolition Act, it is the duty of the Claims Officer to find out whether, in respect of a Claim that is made by a creditor, there is a legal impediment for recognising the same, i.e., whether the claim is such which will be recognised by a Judicial Tribunal. 25. The legislature emphasises upon this aspect even in S. 18 (1) (a) of the Abolition Act. The purpose of a claim being made by a secured creditor, under S 18 (1) (a) is, as we have already, pointed out, for the purpose of determining the amount of debt legally and justly payable to each creditor in respect of his claim. The same idea again, reiterated by the legislature in Section 20 (1) of the Abolition Act when it makes it obligatory on the Claims Officer to determine the principal amount, legally and justly due to each creditor. No rules, as contemplated under S. 20 (1) of the Abolition Act, have been brought to our notice. The expression legally and justly due must, certainly, in our opinion, mean that before a claim is recognized by the Claims Officer he must be satisfied that the principal amount covered by that claim is legally and justly due, i.e., that such a claim, if sought to be enforced in a Court or Judicial Tribunal, will find recognition on the basis that it does not suffer from any legal infirmity. 26. In this case, even according to the appellant, in respect of the principal amount of Rs. 77,500 advanced under the mortgage of December 18, 1906, admittedly, a sum of Rs. 1,77,349-18-0 has been received by him as interest. This amount is more than two times the principal amount advanced under this mortgage. If, in spite of this, the present claim had been made for recovery of further amounts, on the basis of this mortgage, by the appellant, in any Court, it is needless to state that the Court would have applied the provisions of the Money-Lenders Act. By applying Ss. 10 and 11 of this Act, the Court would have dome to the conclusion that the appellant is not entitled to recover any more amounts inasmuch as the entire claim must be considered to have been satisfied by the respondent, having paid a sum of Rs. 1,77,349-18-0 by way of interest. That means, the Court would have come to the conclusion that no further amounts, by way of principal, are legally and justly due to the appellant, and, quite naturally, the further finding would be that no interest at all is due. If no Court would have recognized the present claim of the appellant, the same principles must be applicable when the Claims Officer is also called upon, under S. 20 (1) of the Abolition Act, to determine the principal amount legally and justly due. For the purpose of determining whether the principal amount is legally and justly due, he would be perfectly justified in relying on any provisions of other statutes bearing upon that subject - in this particular case, the provisions of the Money-Lenders Act. 27. Mr. B. Sen, learned counsel, has urged that in order to consider a claim made by the creditor, the jurisdiction of the Claims Officer is restricted, by the various provisions contained in Cls. (a) to (f) of Section 20 (2) of the Abolition Act. We are not inclined to accept this large contention of the learned counsel for the appellant. For instance, if a plea of discharge is raised by debtor in a claim proceeding, or, if a plea is raised by a debtor that the claim is barred by the law of Limitation, no provision is made in Cls. (a) to (f) of S. 20 (2) giving jurisdiction to the Claims Officer either to entertain such objection or to investigate the same. Acceptance of the contentions of the learned counse1 for the appellant will lead to this conclusion that when a claim is made under the Abolition Act, the Claims Officer will have, straightway to determine the principal amount and interest under sub-s. (2) of S. 20 without considering the question as to whether the claim is true or whether it is barred by any other law, or whether the claim is still subsisting. These are all matters which, in our opinion, properly arise for consideration when a Claims Officer has to determine the principal amount under S. 20 (1) of the Abolition Act. The expression legally and justly due, occurring in S. 20 (1), clearly indicates that the first and initial duty of the Claims Officer is to find out whether any principal amount is at all due to the creditor which he is entitled to recover either in law or justly. It may be that, after arriving on this aspect, at a conclusion, one way or the other, and depending upon that decision, the Claims Officer will have to adjudicate upon the rights of the parties, having due regard to the various matters mentioned in Cls. (a) to (f) of sub-s. (2) of S. 20.We are, therefore, satisfied that the Board is correct when it held that the provisions of the Money-Lenders Act can be taken into account by the Claims Officer, under S. 20 (1) of the Abolition Act. If the provisions of the Money-Lenders Act apply, as they have been applied by the Board, there is no controversy that the claim under the mortgage of December 18, 1906, must be considered to have been extinguished and that no further amounts will be due, as held by the Board.
### Response:
0
### Explanation:
We do, no doubt, see force in the contention of the learned counsel, for the appellant, that there is no specific provision in the Abolition Act making any reference to the Money-Lenders Act. We are also conscious that the Abolition Act does lay down some principles in Cls. (a) to (f) of sub-s. (2) of S. 20, as to how exactly the calculation has to be made. There is a1so a slight difference in the method of calculation adopted by the Money-Lenders Act and the Abolition Act. But notwithstanding these circumstances, we are of opinion that, in order to determine the principal amount legally and justly due to each creditor as laid down in S. 20 (1) of the Abolition Act, it is the duty of the Claims Officer to find out whether, in respect of a Claim that is made by a creditor, there is a legal impediment for recognising the same, i.e., whether the claim is such which will be recognised by a Judicial TribunalWe are not inclined to accept this large contention of the learned counsel for the appellant. For instance, if a plea of discharge is raised by debtor in a claim proceeding, or, if a plea is raised by a debtor that the claim is barred by the law of Limitation, no provision is made in Cls. (a) to (f) of S. 20 (2) giving jurisdiction to the Claims Officer either to entertain such objection or to investigate the same. Acceptance of the contentions of the learned counse1 for the appellant will lead to this conclusion that when a claim is made under the Abolition Act, the Claims Officer will have, straightway to determine the principal amount and interest under sub-s. (2) of S. 20 without considering the question as to whether the claim is true or whether it is barred by any other law, or whether the claim is still subsisting. These are all matters which, in our opinion, properly arise for consideration when a Claims Officer has to determine the principal amount under S. 20 (1) of the Abolition Act. The expression legally and justly due, occurring in S. 20 (1), clearly indicates that the first and initial duty of the Claims Officer is to find out whether any principal amount is at all due to the creditor which he is entitled to recover either in law or justly. It may be that, after arriving on this aspect, at a conclusion, one way or the other, and depending upon that decision, the Claims Officer will have to adjudicate upon the rights of the parties, having due regard to the various matters mentioned in Cls. (a) to (f) of sub-s. (2) of S. 20.We are, therefore, satisfied that the Board is correct when it held that the provisions of the Money-Lenders Act can be taken into account by the Claims Officer, under S. 20 (1) of the Abolition Act. If the provisions of the Money-Lenders Act apply, as they have been applied by the Board, there is no controversy that the claim under the mortgage of December 18, 1906, must be considered to have been extinguished and that no further amounts will be due, as held by the Board6. Under S. 18 (1) (a) of the Abolition Act, every creditor, whose debt is secured by the mortgage of or is a charge on, any estate or part thereof, which has vested in the State Government under S. 3, has to file a claim within the period mentioned therein, to the Claims Officer, for the purpose of determining the amount of debt legally and justly payable to each such creditor in respect of his claim. Though the Claim included the third mortgage dated October 21, 1935, also, there does not appear to have been much of a serious contest about the liability under that mortgage and, there both the Claims Officer, as well as the High Court, on appeal, have substantially accepted the claim of the appellant. Therefore, the rights of the parties under that mortgage do not also arise for consideration, in this appeal17. Though, in this Court, on beha1f of the. Mr. G. L. Sanghi, learned counsel, has challenged the correctness of the decision of the Board about they of S. 17 of thes Act, we do not think it necessary to go into that aspect, because we are accepting his contention that the Board was justified in holding that the mortgage has been extinguished under Ss. 10 and 11 of the
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Strawboard Manufacturing Co Vs. Gobind | If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the tribunal not approving of the action of the employer, the dismiss or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33(2). 9. The next question is as to when should an application be made. In this connection our attention was drawn to Section 33-A of the Act which gives a right to the employee to apply for redress in case an employer contravenes the provision of S. 33 an there is no doubt that the proviso to S. 33(2)(b) should be so interpreted as not to whittle down the protection provided by S. 33-A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes the action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case. 10. We may now refer to certain cases which have been relied upon by either side. The main case on which learned counsel for the respondents relies is Premier Automobiles Ltd. v. Ramchandra Bhimayya, ILR (1960) Bom 289 : (AIR 1960 Bom 390 ). In that case the Bombay High Court had that the application should be made before the action as been taken by the employer and that it was not correct to infer from the use of the word "approval" in the proviso that the legislature intended that such an application should be made after the action had been taken. The High Court has pointed out that there is apparent conflict between the first and last part of the proviso and the view it took was with the object of harmonising the two parts. This view has been followed by the Gujarat High Court in Indian Extractions Private Ltd. v. A. V. Vyas, Conciliation Officer, AIR 1961 Guj 22 though with some hesitation. With respect we feel that it is not necessary to read the words action taken" in the proviso as equal to "action proposed to be taken," as the Bombay High Court has done and that the apparent conflict between the two parts of the proviso can be harmonised, as we have indicated above leaving it open to the employer to dismiss or discharge the employee an at the same time pay him the necessary wages and make an application to the authority concerned for approval of the action taken. The contrary view has been taken by the Calcutta High Court in Metal Press Works Ltd. v. H. R. Deb, (1962) 1 Lab LJ 75: (AIR 1962 Cal 123 ) where it has been held that payment of wages and the making of the application shout be simultaneous with the order of discharge or dismissal. It has further been pointed out that nine word simultaneously must of course be taken reasonably and a notion of split-second timing should not be imported. It should be done at once and without delay", and it will depend upon the facts of each case whether the application has been made at once or without delay. This, we think, is the correct view to take. 11. Let us therefore see what has happened in this case. The appellant-concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on February 1, 1960. On the same day he sent two applications by post addressed do the two tribunals. The application at Meerut was received on February 3 and the application at Allahabad on February 4, 1960. In these circumstances we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was therefore in accordance with the proviso. The view taken by the labour court that the application must be made before dismissing the respondent is not correct. The appellant in this case had complied with the proviso to S. 33 (2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it. | 1[ds]The proviso lays down that no workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. It will be clear that two kinds of punishment are subject to the conditions of the proviso, namely, discharge or dismissal. Any other kind of punishment is not within the proviso. Further the proviso lays down two conditions, namely, (i) payment of wages for one month and (ii) making of an application by the employer to the authority before which the proceeding is pending, for approval of the action taken. It is not disputed before us that when the proviso lays down the conditions as to payment of the months wages, all that the employer is required to do in order to carry out that condition is to tender the wages to the employee. But if the employee chooses not to accept the wages, he cannot come forward and say that there has been no payment of wages to him by the employer. Therefore, though S. 18 speaks of payment of one months wages it can only mean that the employer has tendered the wages and that would amount to payment for otherwise a workman could always make the section unworkable by refusing to take the wages so far as the second condition about the making of the application is concerned the proviso requires that the application should be made for approval of the action taken by the employer. It has been urged on behalf of the respondent that the words "action liken" in this part of the proviso mean the action proposed to be taken and therefore all that the employer can do is to make an application to the tribunal asking it to approve the action proposed to be taken by it and it is only after the approval that the employer can proceed to dismiss or discharge the workman. We are however of opinion that on this interpretation there would really be no difference between subs. (2) and sub-s. (1) of S. 33 and the intention of the legislature in making the amendment in 1956 would be rendered nugatory. Moreover, it is against the rules of interpretation to add words to a provision, when the provision, as it stands, is capable of a reasonable meaning which will give effect to the intention of the legislature even on the words as they stand. On the plain meaning of the proviso, it is clear that it gives the employer the power to discharge or dismiss the employee before obtaining the approval of the tribunal concerned; but at the same time the protection afforded to the employee by the proviso has to remain effective, it seems to us therefore that when the proviso speaks of an application for approval of the action taken, the action taken there is the order of actual discharge or dismissal made by the employer and it is for the approval of this order that the application is to be made. This is borne out by Form K under R. 60 of the Rules framed under the Act which corresponds to Form XV under F. 31 of the U. P. Rules. Further the use of the word "approval" in the proviso also suggests that something has been done by the employer who seeks, approval of that from the tribunal. If the intention was that in view of the proviso the employer could not pass the order of dismissal or discharge without first obtaining the approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those in sub-ss. (1) and (3), namely that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. The change therefore in the language used in the proviso to sub-s. (2)(b) clearly shows in our opinion that the legislature intended that employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely, (i) payment of wages for one month and (ii) making of an application to the authority concerned for approval of the action taken. The use of the word "approval" also suggests that what has to be approved has already taken place, though sometimes approval may also be bought of a proposed action. But it seems to us in the context that the approval here is of something done, as otherwise it would have been quite easy for the legislature to use the words "for approval of the action proposed to be taken" in the proviso. Further sub-s. (5) also suggests when it uses the words "approval of the action taken" that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between sub-s. (1) and sub-s. (2) is therefore that under sub-s. (1) the employer proposes what he intends to do and asks or the express permission of the authority concerned to do it; in sub-s. (2) the employer takes the action and merely asks for the approval of the action taken from the authority concerned by his application. There can therefore be no doubt that sub-s. 2(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him. It is however urged on behalf of the respondent that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the tribunal refuses to approve of the action the workman would be left with no remedy as there is no provision for reinstatement in S. 33(2). We however see no difficulty on this score. If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the tribunal not approving of the action of the employer, the dismiss or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33(2)In this connection our attention was drawn to Section 33-A of the Act which gives a right to the employee to apply for redress in case an employer contravenes the provision of S. 33 an there is no doubt that the proviso to S. 33(2)(b) should be so interpreted as not to whittle down the protection provided by S. 33-A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes the action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case11. Let us therefore see what has happened in this case. The appellant-concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on February 1, 1960. On the same day he sent two applications by post addressed do the two tribunals. The application at Meerut was received on February 3 and the application at Allahabad on February 4, 1960. In these circumstances we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was therefore in accordance with the proviso. The view taken by the labour court that the application must be made before dismissing the respondent is not correct. The appellant in this case had complied with the proviso to S. 33 (2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it. | 1 | 4,422 | 1,772 | ### Instruction:
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If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the tribunal not approving of the action of the employer, the dismiss or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33(2). 9. The next question is as to when should an application be made. In this connection our attention was drawn to Section 33-A of the Act which gives a right to the employee to apply for redress in case an employer contravenes the provision of S. 33 an there is no doubt that the proviso to S. 33(2)(b) should be so interpreted as not to whittle down the protection provided by S. 33-A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes the action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case. 10. We may now refer to certain cases which have been relied upon by either side. The main case on which learned counsel for the respondents relies is Premier Automobiles Ltd. v. Ramchandra Bhimayya, ILR (1960) Bom 289 : (AIR 1960 Bom 390 ). In that case the Bombay High Court had that the application should be made before the action as been taken by the employer and that it was not correct to infer from the use of the word "approval" in the proviso that the legislature intended that such an application should be made after the action had been taken. The High Court has pointed out that there is apparent conflict between the first and last part of the proviso and the view it took was with the object of harmonising the two parts. This view has been followed by the Gujarat High Court in Indian Extractions Private Ltd. v. A. V. Vyas, Conciliation Officer, AIR 1961 Guj 22 though with some hesitation. With respect we feel that it is not necessary to read the words action taken" in the proviso as equal to "action proposed to be taken," as the Bombay High Court has done and that the apparent conflict between the two parts of the proviso can be harmonised, as we have indicated above leaving it open to the employer to dismiss or discharge the employee an at the same time pay him the necessary wages and make an application to the authority concerned for approval of the action taken. The contrary view has been taken by the Calcutta High Court in Metal Press Works Ltd. v. H. R. Deb, (1962) 1 Lab LJ 75: (AIR 1962 Cal 123 ) where it has been held that payment of wages and the making of the application shout be simultaneous with the order of discharge or dismissal. It has further been pointed out that nine word simultaneously must of course be taken reasonably and a notion of split-second timing should not be imported. It should be done at once and without delay", and it will depend upon the facts of each case whether the application has been made at once or without delay. This, we think, is the correct view to take. 11. Let us therefore see what has happened in this case. The appellant-concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on February 1, 1960. On the same day he sent two applications by post addressed do the two tribunals. The application at Meerut was received on February 3 and the application at Allahabad on February 4, 1960. In these circumstances we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was therefore in accordance with the proviso. The view taken by the labour court that the application must be made before dismissing the respondent is not correct. The appellant in this case had complied with the proviso to S. 33 (2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it.
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approval of the tribunal, we see no reason why the words in the proviso should not have been similar to those in sub-ss. (1) and (3), namely that no workman shall be discharged or dismissed without the express permission in writing of the authority concerned. The change therefore in the language used in the proviso to sub-s. (2)(b) clearly shows in our opinion that the legislature intended that employer would have the right to pass an order of discharge or dismissal subject to two conditions, namely, (i) payment of wages for one month and (ii) making of an application to the authority concerned for approval of the action taken. The use of the word "approval" also suggests that what has to be approved has already taken place, though sometimes approval may also be bought of a proposed action. But it seems to us in the context that the approval here is of something done, as otherwise it would have been quite easy for the legislature to use the words "for approval of the action proposed to be taken" in the proviso. Further sub-s. (5) also suggests when it uses the words "approval of the action taken" that some action has been taken and it is that action which the employer wants to be approved by his application. The difference between sub-s. (1) and sub-s. (2) is therefore that under sub-s. (1) the employer proposes what he intends to do and asks or the express permission of the authority concerned to do it; in sub-s. (2) the employer takes the action and merely asks for the approval of the action taken from the authority concerned by his application. There can therefore be no doubt that sub-s. 2(b) read together with the proviso contemplates that the employer may pass an order of dismissal or discharge before obtaining the approval of the authority concerned and at the same time make an application for approval of the action taken by him. It is however urged on behalf of the respondent that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the tribunal refuses to approve of the action the workman would be left with no remedy as there is no provision for reinstatement in S. 33(2). We however see no difficulty on this score. If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the tribunal not approving of the action of the employer, the dismiss or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33(2)In this connection our attention was drawn to Section 33-A of the Act which gives a right to the employee to apply for redress in case an employer contravenes the provision of S. 33 an there is no doubt that the proviso to S. 33(2)(b) should be so interpreted as not to whittle down the protection provided by S. 33-A. As we read the proviso, we are of opinion that it contemplates the three things mentioned therein, namely, (i) dismissal or discharge, (ii) payment of wages and (iii) making of an application for approval, to be simultaneous and to be part of the same transaction, so that the employer when he takes the action under S. 33(2) by dismissing or discharging an employee, should immediately pay him or offer to pay him wages for one month and also make an application to the tribunal for approval at the same time. When however we say that the employer must take action simultaneously or immediately we do not mean that literally, for when three things are to be done they cannot be done simultaneously but can only be done one after the other. What we mean is that the employers conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge, (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employees right under S. 33-A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case11. Let us therefore see what has happened in this case. The appellant-concern is situate at Saharanpur while one tribunal was at Meerut and the other at Allahabad. What the appellant did was to pass an order of dismissal on February 1, 1960. On the same day he sent two applications by post addressed do the two tribunals. The application at Meerut was received on February 3 and the application at Allahabad on February 4, 1960. In these circumstances we are of opinion that the appellant had made the application to the tribunal simultaneously and without delay on its passing the order of dismissal and its action was therefore in accordance with the proviso. The view taken by the labour court that the application must be made before dismissing the respondent is not correct. The appellant in this case had complied with the proviso to S. 33 (2)(b) when it dismissed the workman, paid him or offered to pay the necessary wages and at the same time sent the application by post to the tribunal concerned for approval of the action taken by it.
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The Indian Aluminium Co. Ltd Vs. The Commissioner of Income Tax, West Bengal, Calcutta | (1911) 5 Tax Cas 568 case he observed: "It appears to me that these two decisions of the House of Lords are not only quite inconsistent with the principal submission put forward on behalf of the Crown in the present case but that the ratio decidendi of both cases as stated by Lord Atkinson, is really decisive in favour of the Company. Dancwerts, L. J., observed: "In Rushden Heel Co., Ltd. v. Keene, (1949) 30 Tax Cas 298, to which I have referred, Lord Greene, M. R., in 30 T. C. page 316-7, introduced a test of a different kind from that to which I have referred. He seems to draw a distinction between payments made by a trader in the character of taxpayer and not, or not wholly, as trader. I find this idea difficult to follow and not very helpful in discussing the subject in issue. It seems to me very difficulty to say where to draw the line between the two capacities, and not as satisfactory as the test which has been adopted in the cases to which I have referred. Everyone who pays taxes pays because he is taxed and is a taxpayer. 21. Diplock, L. J., also criticized the test in these words: "It is contended for the Crown that the Company paid the tax in its capacity as a taxpayer, not in its capacity as a trader. But with great respect to Lord Greenem, M. R.s judgment in the Rushden Heel Cos case, (1949) 30 Tax Cas 298 on which this contention was mainly based, this is merely playing with words. As pointed out by Willmer, L. J., this ratio decidendi was not adopted by the House of Lords in the same case and cannot, in my view, survive Lord Atkinsons earlier criticism of a similar argument in the Lion Brewery case, (1911) 5 Tax Cas 568 which Willmer, L. J., has already cited. You can always find some label other than "trader to describe the capacity in which a trader makes any disbursement for the purposes of his trade. He pays rent for his business premises in the capacity of "tenant", rates in the capacity of "Occupier wages in the capacity of "employer, the price of goods in the capacity of "buyer. But if he has become tenant or occupier of those particular premises, employer of those particular servants or buyer of those particular goods solely for the purposes of his trade, the money which he has expended in any of the capacities so labelled is a deductible expense in computing the profits of his trade. 22. The learned counsel for the Revenue did not say that these cases had been wrongly decided. What he said was that if the real nature of wealth tax is appreciated, it is impossible to equate the "net wealth with "land used by grazier in (1913) 16 CLR 120 or with "tied houses in (1911) 5 Tax Cas 568 or with the "Companys Capital in 41 Tax Cas 450. He said that in all these cases the tax was being levied on the asset of the business which was being used for the purpose of business. In the present case, according to him, the net wealth could not be likened to an asset owned by the trading company. To this the learned counsel for the appellant retorted that in the case especially of a trading company all the assets are owned and liabilities incurred for the purposes of trading, as outlined in its memorandum of Association; if, all the assets are owned and used for the purpose of the trade, the net wealth would also be owned and used for the purpose of trade. He said that it would be possible for a company to mortgage its net assets to a bank and if a company did that, it could not be said that the net wealth or net assets had not been used for the purposes of business. If tax was levied on the capital value of assets without allowing deduction of debts it is clear that the tax would be deductible. What difference does it make if debts are deducted from the capital value of assets? The net wealth is as much an instrument to trade as the capital value of assets. We find it very difficult to distinguish the case of a trading Company like the assessee, on principle, from that of the grazier or the brewery company, in the cases referred to above. 23. In our view, the test adopted by this Court in Travancore Titanium case, (1966) 3 SCR 321 = (AIR 1966 SC 1250 ) that "to be a permissible deduction, there must be a direct and intimate connection between the expenditure and the business, i.e., between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of the business heeds to be qualified by stating that if the expenditure is laid out by the assessee as owner-cum-trader, and the expenditure is really incidental to the carrying on of his business, it must be treated to have been laid out by him as a trader and as incidental to his business. 24. It was pointed out by the learned counsel for the Revenue that it would be difficult to allow the deduction of wealth tax in respect of individuals who have both business assets and debts and non-business assets and debts. But the Wealth Tax Return form itself requires the assessee to show what are the business assets and liabilities and what are non-business assets and liabilities. 25. At any rate it should not be difficult to evolve a principle or frame statutory rules to find out the proportion of the tax which is really incidental to the carrying on of the trade. On the facts of this case it is clear that payment of wealth tax was really incidental to the carrying on of the assessee companys trade. | 1[ds]15. It may be mentioned that there was no express statutory provision for deduction of rates and taxes in the English Income Tax Act and yet they were allowed as a necessary deduction for the purpose of carrying on trade. There is no doubt that in one sense when rates and taxes on property are paid by a trader he pays them as owner or occupier because taxes are either on possession of property or on its ownership. But when the assessee has a dual capacity, i.e., he is owner-cum-trader, why should it be not deductible when according to ordinary commercial principles he would be treated as paying it as a trader15A. Take the case of taxation on a motor vehicle. The tax is levied under the Motor Vehicles Act on the possession or ownership of a motor car. When a owner-cum-trader pays the tax in respect of a vehicle used solely for the purpose of trade, nobody doubts, and the learned counsel for the Revenue did not contest the position, that the tax would be deductible as an expense. Now, why is it deductible? The only rational explanation seems to us to be that when a person has a dual capacity, of a trader-cum-owner, and he pays tax in respect of property which is used for the purpose of trade, the payment must be taken to be in the capacity of a trader according to ordinary commercial principles16. This aspect is also clearly brought out in Moffatt v. Webb, (1913) 16 CLR 120 (AUS) which was not cited before this Court then. The taxpayer was a grazier, and during the year 1911, carried on business and was still carrying on business as such in Victoria upon lands of the fee simple of which he was during the said year and still was the owner. The said lands comprised 17,970 acres or thereabouts, and their unimproved value had for the purposes of the Land Tax Assessment Act 1910 of the Commonwealth of Australia been assessed at Rs. 44,924. He paid Commonwealth Land Tax amounting to Rs. 387 on the unimproved value of the said lands. The taxpayer claimed to deduct this Tax from his income as an outgoing incurred by him "as a disbursement" or expenditure being wholly and exclusively laid out or expended for the purpose of his trade. The High Court of Australia held that the tax was properly deductible either as an outgoing actually incurred by him in production of income or a disbursement of money wholly and exclusively laid out or expended for the purpose of trade. Griffith, C. J. summed up the argument as follows :"The possession of land is necessarily incident to carrying on the business of a grazier; the payment of land tax is necessary consequence of the possession of land of taxable value whether the land is freehold or leasehold the payment of land tax is therefore a necessary incident of carrying on the business of grazing. The case therefore seems to me to come within the exact words of the first paragraph of Section 9". (Section 9 is substantially similar to Section 10 (2) (xv) of the Indian Income Tax Act, 1922)19. The unsoundness of the test of the capacity in which payment is made was commented upon in Harrods (Buenos Aires) Ltd. Taylor-Gooby 41 Tax Cas 450 by the Court of Appeal. The facts can be conveniently taken from the head note"The Appellant Company, which was incorporated and resident in the United Kingdom, carried on the business of a large retail store at Buenos Aires. In consequence the Company was liable in Argentine to a tax known as the substitute tax, which was levied on joint stock companies incorporated in Argentine, and on companies incorporated outside Argentina which carried on business there, as did the Appellant Company through an "empresa estable. The tax was charged annualy at the rate one percent on the Companys capital and was payable whether or not there were profits liable to Argentine Income-tax. Under Argentine law there were sanctions available to remedy non-payment of the taxOn appeal against an assessment to Income-tax under Schedule D for the year 1959-60 it was contended on behalf of the Company that it paid the substitute tax solely for the purpose of enabling it to carry on business in the Argentine since, if it had not paid it, it would have been unable to carry on its business there, and that the tax was therefore deductible as "money wholly and exclusively laid out or expended for the purposes of (its) trade within the meaning of Section 137 (a) Income-tax Act, 1952. For the Crown, it was contended (inter alia) that the Company paid the tax in the capacity of a taxpayer rather than trader.20. Willmer, L. J., referred to Commissioners of Inland Revenue v. Dowdall OMahoney and Co., (1952) 33 Tax Cas 259 and observed:"I can find no support whatever in this case for the proposition that the question depends on the capacity in which the taxpayer pays the taxes. After referring to (1911) 5 Tax Cas 568 case he observed:"It appears to me that these two decisions of the House of Lords are not only quite inconsistent with the principal submission put forward on behalf of the Crown in the present case but that the ratio decidendi of both cases as stated by Lord Atkinson, is really decisive in favour of the Company. Dancwerts, L. J., observed:"In Rushden Heel Co., Ltd. v. Keene, (1949) 30 Tax Cas 298, to which I have referred, Lord Greene, M. R., in 30 T. C. page 316-7, introduced a test of a different kind from that to which I have referred. He seems to draw a distinction between payments made by a trader in the character of taxpayer and not, or not wholly, as trader. I find this idea difficult to follow and not very helpful in discussing the subject in issue. It seems to me very difficulty to say where to draw the line between the two capacities, and not as satisfactory as the test which has been adopted in the cases to which I have referred. Everyone who pays taxes pays because he is taxed and is a taxpayer.21. Diplock, L. J., also criticized the test in these words:"It is contended for the Crown that the Company paid the tax in its capacity as a taxpayer, not in its capacity as a trader. But with great respect to Lord Greenem, M. R.s judgment in the Rushden Heel Cos case, (1949) 30 Tax Cas 298 on which this contention was mainly based, this is merely playing with words. As pointed out by Willmer, L. J., this ratio decidendi was not adopted by the House of Lords in the same case and cannot, in my view, survive Lord Atkinsons earlier criticism of a similar argument in the Lion Brewery case, (1911) 5 Tax Cas 568 which Willmer, L. J., has already cited. You can always find some label other than "trader to describe the capacity in which a trader makes any disbursement for the purposes of his trade. He pays rent for his business premises in the capacity of "tenant", rates in the capacity of "Occupier wages in the capacity of "employer, the price of goods in the capacity of "buyer. But if he has become tenant or occupier of those particular premises, employer of those particular servants or buyer of those particular goods solely for the purposes of his trade, the money which he has expended in any of the capacities so labelled is a deductible expense in computing the profits of his trade.We find it very difficult to distinguish the case of a trading Company like the assessee, on principle, from that of the grazier or the brewery company, in the cases referred to above23. In our view, the test adopted by this Court in Travancore Titanium case, (1966) 3 SCR 321 = (AIR 1966 SC 1250 ) that "to be a permissible deduction, there must be a direct and intimate connection between the expenditure and the business, i.e., between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of the business heeds to be qualified by stating that if the expenditure is laid out by the assessee as owner-cum-trader, and the expenditure is really incidental to the carrying on of his business, it must be treated to have been laid out by him as a trader and as incidental to his businessBut the Wealth Tax Return form itself requires the assessee to show what are the business assets and liabilities and what are non-business assets and liabilities25. At any rate it should not be difficult to evolve a principle or frame statutory rules to find out the proportion of the tax which is really incidental to the carrying on of the trade. On the facts of this case it is clear that payment of wealth tax was really incidental to the carrying on of the assessee companys trade5. The language seems to be simple enough but it has engendered judicial conflict not only in India but also in England. Eminent Judges have striven to formulate correct tests to determine whether an expenditure has been laid out or expended wholly and exclusively for the purposes of business or not, but no one has been able to find a test in the application of which differences of opinion do not arise. It seems to us therefore essential that in each case, the Courts must always keep in mind the language of the section. | 1 | 5,615 | 1,789 | ### 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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(1911) 5 Tax Cas 568 case he observed: "It appears to me that these two decisions of the House of Lords are not only quite inconsistent with the principal submission put forward on behalf of the Crown in the present case but that the ratio decidendi of both cases as stated by Lord Atkinson, is really decisive in favour of the Company. Dancwerts, L. J., observed: "In Rushden Heel Co., Ltd. v. Keene, (1949) 30 Tax Cas 298, to which I have referred, Lord Greene, M. R., in 30 T. C. page 316-7, introduced a test of a different kind from that to which I have referred. He seems to draw a distinction between payments made by a trader in the character of taxpayer and not, or not wholly, as trader. I find this idea difficult to follow and not very helpful in discussing the subject in issue. It seems to me very difficulty to say where to draw the line between the two capacities, and not as satisfactory as the test which has been adopted in the cases to which I have referred. Everyone who pays taxes pays because he is taxed and is a taxpayer. 21. Diplock, L. J., also criticized the test in these words: "It is contended for the Crown that the Company paid the tax in its capacity as a taxpayer, not in its capacity as a trader. But with great respect to Lord Greenem, M. R.s judgment in the Rushden Heel Cos case, (1949) 30 Tax Cas 298 on which this contention was mainly based, this is merely playing with words. As pointed out by Willmer, L. J., this ratio decidendi was not adopted by the House of Lords in the same case and cannot, in my view, survive Lord Atkinsons earlier criticism of a similar argument in the Lion Brewery case, (1911) 5 Tax Cas 568 which Willmer, L. J., has already cited. You can always find some label other than "trader to describe the capacity in which a trader makes any disbursement for the purposes of his trade. He pays rent for his business premises in the capacity of "tenant", rates in the capacity of "Occupier wages in the capacity of "employer, the price of goods in the capacity of "buyer. But if he has become tenant or occupier of those particular premises, employer of those particular servants or buyer of those particular goods solely for the purposes of his trade, the money which he has expended in any of the capacities so labelled is a deductible expense in computing the profits of his trade. 22. The learned counsel for the Revenue did not say that these cases had been wrongly decided. What he said was that if the real nature of wealth tax is appreciated, it is impossible to equate the "net wealth with "land used by grazier in (1913) 16 CLR 120 or with "tied houses in (1911) 5 Tax Cas 568 or with the "Companys Capital in 41 Tax Cas 450. He said that in all these cases the tax was being levied on the asset of the business which was being used for the purpose of business. In the present case, according to him, the net wealth could not be likened to an asset owned by the trading company. To this the learned counsel for the appellant retorted that in the case especially of a trading company all the assets are owned and liabilities incurred for the purposes of trading, as outlined in its memorandum of Association; if, all the assets are owned and used for the purpose of the trade, the net wealth would also be owned and used for the purpose of trade. He said that it would be possible for a company to mortgage its net assets to a bank and if a company did that, it could not be said that the net wealth or net assets had not been used for the purposes of business. If tax was levied on the capital value of assets without allowing deduction of debts it is clear that the tax would be deductible. What difference does it make if debts are deducted from the capital value of assets? The net wealth is as much an instrument to trade as the capital value of assets. We find it very difficult to distinguish the case of a trading Company like the assessee, on principle, from that of the grazier or the brewery company, in the cases referred to above. 23. In our view, the test adopted by this Court in Travancore Titanium case, (1966) 3 SCR 321 = (AIR 1966 SC 1250 ) that "to be a permissible deduction, there must be a direct and intimate connection between the expenditure and the business, i.e., between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of the business heeds to be qualified by stating that if the expenditure is laid out by the assessee as owner-cum-trader, and the expenditure is really incidental to the carrying on of his business, it must be treated to have been laid out by him as a trader and as incidental to his business. 24. It was pointed out by the learned counsel for the Revenue that it would be difficult to allow the deduction of wealth tax in respect of individuals who have both business assets and debts and non-business assets and debts. But the Wealth Tax Return form itself requires the assessee to show what are the business assets and liabilities and what are non-business assets and liabilities. 25. At any rate it should not be difficult to evolve a principle or frame statutory rules to find out the proportion of the tax which is really incidental to the carrying on of the trade. On the facts of this case it is clear that payment of wealth tax was really incidental to the carrying on of the assessee companys trade.
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the substitute tax, which was levied on joint stock companies incorporated in Argentine, and on companies incorporated outside Argentina which carried on business there, as did the Appellant Company through an "empresa estable. The tax was charged annualy at the rate one percent on the Companys capital and was payable whether or not there were profits liable to Argentine Income-tax. Under Argentine law there were sanctions available to remedy non-payment of the taxOn appeal against an assessment to Income-tax under Schedule D for the year 1959-60 it was contended on behalf of the Company that it paid the substitute tax solely for the purpose of enabling it to carry on business in the Argentine since, if it had not paid it, it would have been unable to carry on its business there, and that the tax was therefore deductible as "money wholly and exclusively laid out or expended for the purposes of (its) trade within the meaning of Section 137 (a) Income-tax Act, 1952. For the Crown, it was contended (inter alia) that the Company paid the tax in the capacity of a taxpayer rather than trader.20. Willmer, L. J., referred to Commissioners of Inland Revenue v. Dowdall OMahoney and Co., (1952) 33 Tax Cas 259 and observed:"I can find no support whatever in this case for the proposition that the question depends on the capacity in which the taxpayer pays the taxes. After referring to (1911) 5 Tax Cas 568 case he observed:"It appears to me that these two decisions of the House of Lords are not only quite inconsistent with the principal submission put forward on behalf of the Crown in the present case but that the ratio decidendi of both cases as stated by Lord Atkinson, is really decisive in favour of the Company. Dancwerts, L. J., observed:"In Rushden Heel Co., Ltd. v. Keene, (1949) 30 Tax Cas 298, to which I have referred, Lord Greene, M. R., in 30 T. C. page 316-7, introduced a test of a different kind from that to which I have referred. He seems to draw a distinction between payments made by a trader in the character of taxpayer and not, or not wholly, as trader. I find this idea difficult to follow and not very helpful in discussing the subject in issue. It seems to me very difficulty to say where to draw the line between the two capacities, and not as satisfactory as the test which has been adopted in the cases to which I have referred. Everyone who pays taxes pays because he is taxed and is a taxpayer.21. Diplock, L. J., also criticized the test in these words:"It is contended for the Crown that the Company paid the tax in its capacity as a taxpayer, not in its capacity as a trader. But with great respect to Lord Greenem, M. R.s judgment in the Rushden Heel Cos case, (1949) 30 Tax Cas 298 on which this contention was mainly based, this is merely playing with words. As pointed out by Willmer, L. J., this ratio decidendi was not adopted by the House of Lords in the same case and cannot, in my view, survive Lord Atkinsons earlier criticism of a similar argument in the Lion Brewery case, (1911) 5 Tax Cas 568 which Willmer, L. J., has already cited. You can always find some label other than "trader to describe the capacity in which a trader makes any disbursement for the purposes of his trade. He pays rent for his business premises in the capacity of "tenant", rates in the capacity of "Occupier wages in the capacity of "employer, the price of goods in the capacity of "buyer. But if he has become tenant or occupier of those particular premises, employer of those particular servants or buyer of those particular goods solely for the purposes of his trade, the money which he has expended in any of the capacities so labelled is a deductible expense in computing the profits of his trade.We find it very difficult to distinguish the case of a trading Company like the assessee, on principle, from that of the grazier or the brewery company, in the cases referred to above23. In our view, the test adopted by this Court in Travancore Titanium case, (1966) 3 SCR 321 = (AIR 1966 SC 1250 ) that "to be a permissible deduction, there must be a direct and intimate connection between the expenditure and the business, i.e., between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of the business heeds to be qualified by stating that if the expenditure is laid out by the assessee as owner-cum-trader, and the expenditure is really incidental to the carrying on of his business, it must be treated to have been laid out by him as a trader and as incidental to his businessBut the Wealth Tax Return form itself requires the assessee to show what are the business assets and liabilities and what are non-business assets and liabilities25. At any rate it should not be difficult to evolve a principle or frame statutory rules to find out the proportion of the tax which is really incidental to the carrying on of the trade. On the facts of this case it is clear that payment of wealth tax was really incidental to the carrying on of the assessee companys trade5. The language seems to be simple enough but it has engendered judicial conflict not only in India but also in England. Eminent Judges have striven to formulate correct tests to determine whether an expenditure has been laid out or expended wholly and exclusively for the purposes of business or not, but no one has been able to find a test in the application of which differences of opinion do not arise. It seems to us therefore essential that in each case, the Courts must always keep in mind the language of the section.
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Abubucker Siqqique & Others Vs. The State represented by The Deputy Superintendent of Police, CBI/SCB/Chennai, Tamil Nadu & Others | explosive substance as gelatin as opposed to RDX would not be fatal. According to him, the confessional statements should be read from the point of view of a layman. We may refer to certain extracts from the confessional statement of A5 Abubucker Siddique, which is as follows:- "Afterwards, we four went to see Mustaq of Vaniyampadi to purchase gun powder for the preparation of bomb. They went to Gudiyatham and bought 8 Kgs. of Gelatin and some detonators. Imam Ali and Mustaq went outside and bought an iron box to be suitable for fitting in a two wheeler. At the house of Mustaq, Imam Ali conducted a Trial of blasting the gun powders by setting a timer. On the same day, we all of us along with Mustaq and his friend Shakil went to a theatre at Vaniyambadi and saw an English Film called "Armour for the action". While going to the cinema, Mustaq and Shakil kept the gun powder and other items in a house near the Theatre and after seeing the cinema, we took the items from that house and left for Chennai in the night and reached Chennai in the next day morning i.e., 30.07.93." "On the next day after our return from Vaniyambadi, we went to Riche Street and bought the following items: some pen torch cells, one battery box, quartx timer, switch and some items which are required for blasting the bomb from a box/ suitcase." "On 1.8.93, Imam Ali sent me to purchase 5 kgs of gun powder, a box made of iron for the purpose of making the second bomb and also told me to meet Mustaq at Jafrabad. He gave me Rs.275 for this purpose. He also told me to bring the gun powder from Mustaqs house which was bought form Mustaqs house which was bought for planting bombs at Hindu Munnani meeting at Vadacherry." 26. We are of the considered opinion that the observations of the trial court that `other materials could have been RDX and PETN is perverse. In our opinion, Mr. Natarajan had correctly submitted that the other items in addition to gun powder were the iron box, suit case, battery box, quartz timer, switch etc. The confessional statement of A5 Abubucker Siddique reveals that they had gone to Vaniyampadi to purchase "gun powder" for the preparation of the bomb. Then they went to Gudiyatham and procured 8 kgs of gelatine on 29.7.93. Later they had procured 5 kgs of "gunpowder" on 1.8.93. We are of the considered opinion that the confessional statement of A5 Abubucker Siddique only reveals that they had procured gelatine, gunpowder and certain other accessories required for blasting a bomb viz. detonators, switch, battery box, pen torch cells, quartz timer etc. It is not mentioned in the confessional statement as to how and when the appellants had procured RDX and PETN i.e. the materials with which the bomb made for blasting the RSS building situated at No.1 M.V. Naidu Street was made. 27. It was vehemently argued before us by Mr. Malhotra that the charge has to be read along with the confessional statements. We may notice an extract of the charge relied upon by him. It reads as follows: "Fifthly: that you A-1, A-2, A-5, A-5 and A-8 in pursuance of the said criminal conspiracy during the said period and in the course of the same transaction and in the furtherance of the common intention of you A-1, A-2, A-5 and A- 8 and the absconding accused Imam Ali, Hyder Ali and Kaja Nizamuddin to commit murders and cause injuries to RSS and Hindu Munnani leaders and others who were likely to be present on 8.8.93 at about 1.45 pm at the RSS Headquarters building procured explosives and other materials required for preparing the two suitcase-bombs at godown no 21, Subaiah Street, Periamet, Madras belonging to A1......... ......... " We are of the considered opinion that the most important portion of the aforesaid charge is "procured explosives and other materials". We have considered the confessional statements in extenso. It is not in dispute that explosives were procured from Gudiyatham. The confessional statement of A1 Rafiq Ahmed and A5 Abubucker Siddique are unequivocal that only gelatin sticks and detonators were bought from Gudiyatham form a licensed shop owner PW 112 Kamalnathan (declared hostile). The prosecution has not been able to ascertain as to how the appellants had access to RDX. The Trial Court had accepted that as only two persons namely A15 Imam Ali (died) and absconding accused Mustaq Ahamed knew about the source from where RDX was procured, the other three accused namely A5 Abubucker Siddique, A14 Hyder Ali and A17 Kaja Nizamuddin who were closely associated with them also knew about it. The observation of the Trial Court is merely conjectural. In our opinion, the conclusion of the Trial Court that the "other materials" as mentioned in the charge sheet brings in its sweep other explosives like RDX and PETN is wholly without any basis. The evidence on the record clearly militates against such a conclusion. Thus even if the charges are read along with the confessional statement, it would not, in any manner, improve the intrinsic value of the evidence led by the prosecution. Suspicion no matter how strong cannot take the place of legal proof. 28. As submitted by Mr. Malhotra, it is true that the prosecution case was that explosive substances were used to make bombs. It is not in dispute that the present case was registered against the 18 persons for blasting the RSS building situated at No. 1 M.V. Naidu Street. As noticed hereinabove the bomb was made of RDX and PETN but no trace of gelatin was found form the scene of crime. The prosecution could only prove that the appellant had procured gelatin sticks and detonators form Gudiyatham but the traces of said explosives could not be found from the scene of occurrence. Thus there is clearly no evidence to link the appellants with the explosion. | 1[ds]14. In our opinion, the contents of the confessional statements if true, would indicate that all the accused mentioned above and the appellants, in particular, had entered into a conspiracy for committing the violent and terrorist acts against a particular Hindu organization and Hindu places of religious worships, religious institutions and places frequented by Hindus in general. In order to strike terror in the minds of the Hindus, they had decided to cause explosions and commit crimes of violence, such as murder. They were also intent to cause destruction to the property belonging to the Hindu community. In furtherance of this aim, the participants in the conspiracy, the appellants in particular, and their accomplices had been charged with the task of procuring high explosives. For that purpose, they went to Gudiyatham and procured 13 kgs of gelatin as narrated herein above. From the explosive material collected by the conspirators, two dangerously explosive bombs had been assembled. The first attempt to explode such a bomb did not fructify as the intended target had already left the premises in which the bomb was to be exploded. The bomb was dismantled and kept in the house of A18 Mushtaq Ahmed (absconding). The second attempt for exploding these bombs also failed as the detonator was short circuited. It was the third attempt in which the conspirators succeeded. This attempt took place on 8th August, 1993 when A15 Imam Ali and A17 Kaja Nizamuddin carried the two bombs into the building. They deposited the bombs in the building and exited there from. They waited outside for half an hour till the bomb exploded. This is the sum total of the sequence of events leading upto the explosion that destroyed the RSS, Headquarters on 8th August, 199315. Quite some time after the explosion, upon investigation, certain arrests were made. A5 Abubucker Siddique was arrested on 24th October, 1993. A14 Hyder Ali was arrested in some other case but was produced before the Trial Court on PT warrant on 16th August, 1995. A15 has died. A17 Kaja Nizamuddin was arrested in some other case and produced before the Trial Court on 13th March, 2000 on PT warrant. We may notice here that A14 Hyder Ali and A17 Kaja Nizamuddin were also arrested in some other case and that too after two years and 7 years respectively. On interrogation, they made confessional statements16. Excepting for the confessional statements, admittedly, there is no other independent evidence with regard to the participation of the accused in the conspiracy and the particular role played by them. According to these confessions, A15 Imam Ali and A17 Kaja Nizamuddin had carried the two suitcases inside the building. Therefore, it is apparent that even according to the prosecution version, they could have only carried bombs made from gelatin. The lid on the prosecution case is blown away by the report of forensic experts and the traces of the explosive material collected at the Bomb site17. Upon investigation and according to the evidence, which has been recorded in the trial court itself, it has been established that the bomb which caused the damage consisted only of RDX and PETN. This is also the conclusion in the `Report on the Investigation of the Bomb blast which occurred at Chetput, Madras on August 8th, 1993 submitted by T.R. Baggi, Director, CFSL, Hyderabad20. Having recorded the aforesaid conclusion, the trial court, without any cogent evidence, accepted the submission of the prosecution that only two persons knew about the procurement of RDX, PETN etc, namely A15 Imam Ali and A18 Mushtaq Ahmed (absconding accused). Thereafter, the trial court quite erroneously observed that A5 Abubucker Siddique in his confessional statement had indicated that gelatin sticks, detonators and "other explosives" were procured. Having said so, the trial court without any basis goes on to accept the contention of the prosecution that other explosives could have been RDX, PETN and merely because the source could not be proved it cannot be said that such explosives were not used22. The aforesaid conclusion does not explain as to what happened to 13 Kgs of Gelatin, which was procured from Gudiyatham. It also does not explain as to why only traces of RDX were found in dead bodies, clothes and parts of the building. Not a trace of Gelatin was found in the building. It is worth noticing here that in none of the confessional statements, has it been stated about any other explosives being procured, yet the trial court concludes that other explosive material has also been procured. The conclusion is clearly without any factual basis nor supported by any evidence23. We may reiterate here that it is admitted by Mr. Sundarrajan that the origin from where the RDX or PETN was obtained by the accused were not discovered. He also emphatically stated that PETN and RDX are different articles. It is also stated in hisn that in Gelatin sticks, RDX will not be found. On a conjoint reading of the entire evidence, the trial court clearly recorded the conclusion that only RDX and PETN and not Gelatin sticks as claimed by the prosecution were used for the explosion. It is also noticed that the confessional statements reveals that what was purchased were only Gelatin sticks from Gudiyatham and not RDX and PETN. Such evidence would clearly destroy the very foundation of the prosecution case, which proceeds on the basis that the gelatin and the detonators were procured in Gudiyatham was the material from which the bombs were manufactured, which were responsible for the explosion on 8th August, 1993. Even according to the trial court, the exploding bomb consisted of RDX and PETN. Having recorded the aforesaid conclusion that trial court without any justification concludes such evidence would only affect the evidentiary value and truthfulness of the confessional statements24. In our opinion, the trial court having correctly recorded the conclusion in the earlier part of the paragraph, unnecessarily and without any basis diluted the same and restricted it only to the reliability of the confessional statement. We are of the considered opinion that the Trial Court correctly observed that "the prosecution ought to have investigated the case in the angle of the usage of the RDX, PETN etc." Even after making such an observation, the Trial Court erroneously goes onto convict the appellants who had procured only Gelatin and Detonators from Gudiyatham25. We are unable to accept the submission of Mr. P.P. Malhotra that the appellants not being scientists, referring to the explosive substance as gelatin as opposed to RDX would not be fatal. According to him, the confessional statements should be read from the point of view of a layman26. We are of the considered opinion that the observations of the trial court that `other materials could have been RDX and PETN is perverse. In our opinion, Mr. Natarajan had correctly submitted that the other items in addition to gun powder were the iron box, suit case, battery box, quartz timer, switch etc. The confessional statement of A5 Abubucker Siddique reveals that they had gone to Vaniyampadi to purchase "gun powder" for the preparation of the bomb. Then they went to Gudiyatham and procured 8 kgs of gelatine on 29.7.93. Later they had procured 5 kgs of "gunpowder" on 1.8.93. We are of the considered opinion that the confessional statement of A5 Abubucker Siddique only reveals that they had procured gelatine, gunpowder and certain other accessories required for blasting a bomb viz. detonators, switch, battery box, pen torch cells, quartz timer etc. It is not mentioned in the confessional statement as to how and when the appellants had procured RDX and PETN i.e. the materials with which the bomb made for blasting the RSS building situated at No.1 M.V. Naidu Street was madeWe are of the considered opinion that the most important portion of the aforesaid charge is "procured explosives and other materials". We have considered the confessional statements in extenso. It is not in dispute that explosives were procured from Gudiyatham. The confessional statement of A1 Rafiq Ahmed and A5 Abubucker Siddique are unequivocal that only gelatin sticks and detonators were bought from Gudiyatham form a licensed shop owner PW 112 Kamalnathan (declared hostile). The prosecution has not been able to ascertain as to how the appellants had access to RDX. The Trial Court had accepted that as only two persons namely A15 Imam Ali (died) and absconding accused Mustaq Ahamed knew about the source from where RDX was procured, the other three accused namely A5 Abubucker Siddique, A14 Hyder Ali and A17 Kaja Nizamuddin who were closely associated with them also knew about it. The observation of the Trial Court is merely conjectural. In our opinion, the conclusion of the Trial Court that the "other materials" as mentioned in the charge sheet brings in its sweep other explosives like RDX and PETN is wholly without any basis. The evidence on the record clearly militates against such a conclusion. Thus even if the charges are read along with the confessional statement, it would not, in any manner, improve the intrinsic value of the evidence led by the prosecution. Suspicion no matter how strong cannot take the place of legal proof.28. As submitted by Mr. Malhotra, it is true that the prosecution case was that explosive substances were used to make bombs. It is not in dispute that the present case was registered against the 18 persons for blasting the RSS building situated at No. 1 M.V. Naidu Street. As noticed hereinabove the bomb was made of RDX and PETN but no trace of gelatin was found form the scene of crime. The prosecution could only prove that the appellant had procured gelatin sticks and detonators form Gudiyatham but the traces of said explosives could not be found from the scene of occurrence. Thus there is clearly no evidence to link the appellants with the explosion. | 1 | 8,652 | 1,824 | ### Instruction:
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explosive substance as gelatin as opposed to RDX would not be fatal. According to him, the confessional statements should be read from the point of view of a layman. We may refer to certain extracts from the confessional statement of A5 Abubucker Siddique, which is as follows:- "Afterwards, we four went to see Mustaq of Vaniyampadi to purchase gun powder for the preparation of bomb. They went to Gudiyatham and bought 8 Kgs. of Gelatin and some detonators. Imam Ali and Mustaq went outside and bought an iron box to be suitable for fitting in a two wheeler. At the house of Mustaq, Imam Ali conducted a Trial of blasting the gun powders by setting a timer. On the same day, we all of us along with Mustaq and his friend Shakil went to a theatre at Vaniyambadi and saw an English Film called "Armour for the action". While going to the cinema, Mustaq and Shakil kept the gun powder and other items in a house near the Theatre and after seeing the cinema, we took the items from that house and left for Chennai in the night and reached Chennai in the next day morning i.e., 30.07.93." "On the next day after our return from Vaniyambadi, we went to Riche Street and bought the following items: some pen torch cells, one battery box, quartx timer, switch and some items which are required for blasting the bomb from a box/ suitcase." "On 1.8.93, Imam Ali sent me to purchase 5 kgs of gun powder, a box made of iron for the purpose of making the second bomb and also told me to meet Mustaq at Jafrabad. He gave me Rs.275 for this purpose. He also told me to bring the gun powder from Mustaqs house which was bought form Mustaqs house which was bought for planting bombs at Hindu Munnani meeting at Vadacherry." 26. We are of the considered opinion that the observations of the trial court that `other materials could have been RDX and PETN is perverse. In our opinion, Mr. Natarajan had correctly submitted that the other items in addition to gun powder were the iron box, suit case, battery box, quartz timer, switch etc. The confessional statement of A5 Abubucker Siddique reveals that they had gone to Vaniyampadi to purchase "gun powder" for the preparation of the bomb. Then they went to Gudiyatham and procured 8 kgs of gelatine on 29.7.93. Later they had procured 5 kgs of "gunpowder" on 1.8.93. We are of the considered opinion that the confessional statement of A5 Abubucker Siddique only reveals that they had procured gelatine, gunpowder and certain other accessories required for blasting a bomb viz. detonators, switch, battery box, pen torch cells, quartz timer etc. It is not mentioned in the confessional statement as to how and when the appellants had procured RDX and PETN i.e. the materials with which the bomb made for blasting the RSS building situated at No.1 M.V. Naidu Street was made. 27. It was vehemently argued before us by Mr. Malhotra that the charge has to be read along with the confessional statements. We may notice an extract of the charge relied upon by him. It reads as follows: "Fifthly: that you A-1, A-2, A-5, A-5 and A-8 in pursuance of the said criminal conspiracy during the said period and in the course of the same transaction and in the furtherance of the common intention of you A-1, A-2, A-5 and A- 8 and the absconding accused Imam Ali, Hyder Ali and Kaja Nizamuddin to commit murders and cause injuries to RSS and Hindu Munnani leaders and others who were likely to be present on 8.8.93 at about 1.45 pm at the RSS Headquarters building procured explosives and other materials required for preparing the two suitcase-bombs at godown no 21, Subaiah Street, Periamet, Madras belonging to A1......... ......... " We are of the considered opinion that the most important portion of the aforesaid charge is "procured explosives and other materials". We have considered the confessional statements in extenso. It is not in dispute that explosives were procured from Gudiyatham. The confessional statement of A1 Rafiq Ahmed and A5 Abubucker Siddique are unequivocal that only gelatin sticks and detonators were bought from Gudiyatham form a licensed shop owner PW 112 Kamalnathan (declared hostile). The prosecution has not been able to ascertain as to how the appellants had access to RDX. The Trial Court had accepted that as only two persons namely A15 Imam Ali (died) and absconding accused Mustaq Ahamed knew about the source from where RDX was procured, the other three accused namely A5 Abubucker Siddique, A14 Hyder Ali and A17 Kaja Nizamuddin who were closely associated with them also knew about it. The observation of the Trial Court is merely conjectural. In our opinion, the conclusion of the Trial Court that the "other materials" as mentioned in the charge sheet brings in its sweep other explosives like RDX and PETN is wholly without any basis. The evidence on the record clearly militates against such a conclusion. Thus even if the charges are read along with the confessional statement, it would not, in any manner, improve the intrinsic value of the evidence led by the prosecution. Suspicion no matter how strong cannot take the place of legal proof. 28. As submitted by Mr. Malhotra, it is true that the prosecution case was that explosive substances were used to make bombs. It is not in dispute that the present case was registered against the 18 persons for blasting the RSS building situated at No. 1 M.V. Naidu Street. As noticed hereinabove the bomb was made of RDX and PETN but no trace of gelatin was found form the scene of crime. The prosecution could only prove that the appellant had procured gelatin sticks and detonators form Gudiyatham but the traces of said explosives could not be found from the scene of occurrence. Thus there is clearly no evidence to link the appellants with the explosion.
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have been RDX, PETN and merely because the source could not be proved it cannot be said that such explosives were not used22. The aforesaid conclusion does not explain as to what happened to 13 Kgs of Gelatin, which was procured from Gudiyatham. It also does not explain as to why only traces of RDX were found in dead bodies, clothes and parts of the building. Not a trace of Gelatin was found in the building. It is worth noticing here that in none of the confessional statements, has it been stated about any other explosives being procured, yet the trial court concludes that other explosive material has also been procured. The conclusion is clearly without any factual basis nor supported by any evidence23. We may reiterate here that it is admitted by Mr. Sundarrajan that the origin from where the RDX or PETN was obtained by the accused were not discovered. He also emphatically stated that PETN and RDX are different articles. It is also stated in hisn that in Gelatin sticks, RDX will not be found. On a conjoint reading of the entire evidence, the trial court clearly recorded the conclusion that only RDX and PETN and not Gelatin sticks as claimed by the prosecution were used for the explosion. It is also noticed that the confessional statements reveals that what was purchased were only Gelatin sticks from Gudiyatham and not RDX and PETN. Such evidence would clearly destroy the very foundation of the prosecution case, which proceeds on the basis that the gelatin and the detonators were procured in Gudiyatham was the material from which the bombs were manufactured, which were responsible for the explosion on 8th August, 1993. Even according to the trial court, the exploding bomb consisted of RDX and PETN. Having recorded the aforesaid conclusion that trial court without any justification concludes such evidence would only affect the evidentiary value and truthfulness of the confessional statements24. In our opinion, the trial court having correctly recorded the conclusion in the earlier part of the paragraph, unnecessarily and without any basis diluted the same and restricted it only to the reliability of the confessional statement. We are of the considered opinion that the Trial Court correctly observed that "the prosecution ought to have investigated the case in the angle of the usage of the RDX, PETN etc." Even after making such an observation, the Trial Court erroneously goes onto convict the appellants who had procured only Gelatin and Detonators from Gudiyatham25. We are unable to accept the submission of Mr. P.P. Malhotra that the appellants not being scientists, referring to the explosive substance as gelatin as opposed to RDX would not be fatal. According to him, the confessional statements should be read from the point of view of a layman26. We are of the considered opinion that the observations of the trial court that `other materials could have been RDX and PETN is perverse. In our opinion, Mr. Natarajan had correctly submitted that the other items in addition to gun powder were the iron box, suit case, battery box, quartz timer, switch etc. The confessional statement of A5 Abubucker Siddique reveals that they had gone to Vaniyampadi to purchase "gun powder" for the preparation of the bomb. Then they went to Gudiyatham and procured 8 kgs of gelatine on 29.7.93. Later they had procured 5 kgs of "gunpowder" on 1.8.93. We are of the considered opinion that the confessional statement of A5 Abubucker Siddique only reveals that they had procured gelatine, gunpowder and certain other accessories required for blasting a bomb viz. detonators, switch, battery box, pen torch cells, quartz timer etc. It is not mentioned in the confessional statement as to how and when the appellants had procured RDX and PETN i.e. the materials with which the bomb made for blasting the RSS building situated at No.1 M.V. Naidu Street was madeWe are of the considered opinion that the most important portion of the aforesaid charge is "procured explosives and other materials". We have considered the confessional statements in extenso. It is not in dispute that explosives were procured from Gudiyatham. The confessional statement of A1 Rafiq Ahmed and A5 Abubucker Siddique are unequivocal that only gelatin sticks and detonators were bought from Gudiyatham form a licensed shop owner PW 112 Kamalnathan (declared hostile). The prosecution has not been able to ascertain as to how the appellants had access to RDX. The Trial Court had accepted that as only two persons namely A15 Imam Ali (died) and absconding accused Mustaq Ahamed knew about the source from where RDX was procured, the other three accused namely A5 Abubucker Siddique, A14 Hyder Ali and A17 Kaja Nizamuddin who were closely associated with them also knew about it. The observation of the Trial Court is merely conjectural. In our opinion, the conclusion of the Trial Court that the "other materials" as mentioned in the charge sheet brings in its sweep other explosives like RDX and PETN is wholly without any basis. The evidence on the record clearly militates against such a conclusion. Thus even if the charges are read along with the confessional statement, it would not, in any manner, improve the intrinsic value of the evidence led by the prosecution. Suspicion no matter how strong cannot take the place of legal proof.28. As submitted by Mr. Malhotra, it is true that the prosecution case was that explosive substances were used to make bombs. It is not in dispute that the present case was registered against the 18 persons for blasting the RSS building situated at No. 1 M.V. Naidu Street. As noticed hereinabove the bomb was made of RDX and PETN but no trace of gelatin was found form the scene of crime. The prosecution could only prove that the appellant had procured gelatin sticks and detonators form Gudiyatham but the traces of said explosives could not be found from the scene of occurrence. Thus there is clearly no evidence to link the appellants with the explosion.
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Kalianna Gounder Vs. Palani Gounder & Anr | But the plaintiff did plead in paragraph 6 of the plaint that the defendants had " with the evil influence and instigation of Karuppa Gounden, Pongia Goundar and Appachi Gounder of the place who are now planning to have the suit properties for themselves are now evading to rescind the contract". This, in our judgment, is a sufficient plea, if it was necessary to plead it, in support of the case which the plaintiff sought to make out.11. The High Court discarded the testimony of Ramamurthy Iyer on the view that he was inimical to the defendants. We have been taken through his evidence and we see no justification for holding that his testimony could not be believed. If Ramamurthy Iyer was an enemy of the defendants, it is very unlikely that they would permit him to write out an important document at their residence. The broad probabilities of the case strongly support his testimony.12. Having carefully considered the evidence we are of the view that the story of the defendants that only Rs. 350/- were paid to them on July 4, 1956, and no Rs. 2,000/- as recited in the memorandum is untrue and has been put up as an excuse for resiling from the agreement.13. The second plea that there was an alteration in the memorandum in material particulars cannot also be sustained. The original document is not before us, but from the cross-examination of the writer and the plaintiffs witnesses and also from the testimony of T. P. Sengottiah and his witnesses it does not appear that the words "Clear the debts and execute the sale deed free from encumbrance" were written in a cramped style. This sentence occurs immediately before the Schedule of property sold and after the first three paragraphs of the covenants of the memorandum. There was no reason for the writer to leave any space which could be availed of to add this sentence after the document was executed. There is no denial that the sentence has been written by Ramamurthy. It is true that the High Court has observed that the ink in which the sentence was written appeared to be slightly different in shade from the rest of the document. But Ramamurthy Iyer has deposed that it was not true that the portion in the agreement relating to the encumbrance was written subsequent to the agreement in collusion with the plaintiff. He explained that the ink in his fountain-pen was exhausted when he wrote with one pen, and he wrote the portion after reading the document, with another fountain-pen, and since the portion was written in a hurry the ink may have differed. According to him he did not notice any difference in ink. There is no reason to disbelieve the testimony of Ramamurthy Iyer.14. Even if it be assumed that the sentence regarding encumbrance was written after the deed was executed it will not invalidate the deed. The second defendant and his witnesses have admitted that there was no discussion at the time of the writing and execution of the agreement about the encumbrances upon the land. There is not even evidence that there were any encumbrances subsisting on the land.Ordinarily when property is agreed to be sold for a price, it would be the duty of the vendor to clear it of all the encumbrances before executing the sale deed. The alteration, if any, cannot therefore be regarded as material. As observed in Halsburys Laws of England, Vol. 11, 3rd Edn., Art. 599 at p. 368:"A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed,or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed.The effect of making such an alteration, without the consent of the party bound, is exactly the same as that of cancelling the deed."15. It is also stated in Art. 604 at pp. 370 and 371:"An alteration made in a deed, after its execution, in some particular which is not material does not in any way affect the validity of the deed; x x x x an alteration is not material which does not vary the legal effect of the deed in its original state,but merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties already apparent on the face of the deed, provided that the alteration does not otherwise prejudice the party liable thereunder."This rule has been applied by the Privy Council in Nathu Lal v. Mt. Gomti Kuar, 67 Ind App 318 = (AIR 1940 PC 160 ). The Judicial Committee observed in that case at p. 331 (of Ind App) = (at p. 164 of AIR):"A deed is nothing more than an instrument or agreement under seal; and the principle of those cases is that any alteration in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument."The Judicial Committee observed at p. 333 (of Ind App) = (at p. 165 of AIR):"A material alteration has been defined in the rule as one which varies the rights, liabilities or legal position of the parties ascertained by the deed, etc.,"and after applying that test they held that the alteration in that case was not material in the sense of altering the rights, liabilities or legal position of the parties or the legal effect of the document.16. Since the defendants were liable to clear the encumbrances, if any, subsisting on the land before executing the sale deed, assuming that the covenant was incorporated after the execution of the deed, it cannot be regarded as a material alteration on that account, for, it does not alter the rights or liabilities of the parties or the legal effects of the instrument. | 1[ds]6. The learned Trial Judge accepted the testimony of the plaintiff and his witness Ramamurthy Iyer. The High Court was of the view that the testimony of T. P. Sengottiah and the attesting witness should be preferred. In our judgment the dispute may be resolved by considering the conflicting testimony of the witnesses in the light of broadcase of the defendants that they relied upon the bare word of the plaintiff that he will pay the balance of Rupees 1,650/- within three days and on that representation they parted with the memorandum is, in our judgment,It was also observed by the High Court that there was no particular reason for the defendants to resile from the terms of the agreement within three days of its execution, and set up a false plea, and that in "such cases evidence is given to prove that it was a temptation of a better offer that induced the party to resile from the agreement". The plaintiff did state in his evidence that his pangalis who were inimical to him had made an offer of Rs. 16,000/- for the property, and because of that offer the defendants resiled from the agreement. In the view of the High Court this part of the case of the plaintiff could not be believed because it was not expressly pleaded in the plaint. But the plaintiff did plead in paragraph 6 of the plaint that the defendants had " with the evil influence and instigation of Karuppa Gounden, Pongia Goundar and Appachi Gounder of the place who are now planning to have the suit properties for themselves are now evading to rescind the contract". This, in our judgment, is a sufficient plea, if it was necessary to plead it, in support of the case which the plaintiff sought to make out.11. The High Court discarded the testimony of Ramamurthy Iyer on the view that he was inimical to the defendants. We have been taken through his evidence and we see no justification for holding that his testimony could not be believed. If Ramamurthy Iyer was an enemy of the defendants, it is very unlikely that they would permit him to write out an important document at their residence. The broad probabilities of the case strongly support his testimony.12. Having carefully considered the evidence we are of the view that the story of the defendants that only Rs. 350/- were paid to them on July 4, 1956, and no Rs. 2,000/- as recited in the memorandum is untrue and has been put up as an excuse for resiling from theoriginal document is not before us, but from the cross-examination of the writer and the plaintiffs witnesses and also from the testimony of T. P. Sengottiah and his witnesses it does not appear that the words "Clear the debts and execute the sale deed free from encumbrance" were written in a cramped style. This sentence occurs immediately before the Schedule of property sold and after the first three paragraphs of the covenants of the memorandum. There was no reason for the writer to leave any space which could be availed of to add this sentence after the document was executed. There is no denial that the sentence has been written by Ramamurthy. It is true that the High Court has observed that the ink in which the sentence was written appeared to be slightly different in shade from the rest of the document. But Ramamurthy Iyer has deposed that it was not true that the portion in the agreement relating to the encumbrance was written subsequent to the agreement in collusion with the plaintiff. He explained that the ink in his fountain-pen was exhausted when he wrote with one pen, and he wrote the portion after reading the document, with another fountain-pen, and since the portion was written in a hurry the ink may have differed. According to him he did not notice any difference in ink. There is no reason to disbelieve the testimony of Ramamurthy Iyer.14. Even if it be assumed that the sentence regarding encumbrance was written after the deed was executed it will not invalidate the deed. The second defendant and his witnesses have admitted that there was no discussion at the time of the writing and execution of the agreement about the encumbrances upon the land. There is not even evidence that there were any encumbrances subsisting on the land.Ordinarily when property is agreed to be sold for a price, it would be the duty of the vendor to clear it of all the encumbrances before executing the sale deed. The alteration, if any, cannot therefore be regarded asSince the defendants were liable to clear the encumbrances, if any, subsisting on the land before executing the sale deed, assuming that the covenant was incorporated after the execution of the deed, it cannot be regarded as a material alteration on that account, for, it does not alter the rights or liabilities of the parties or the legal effects of the instrument. | 1 | 2,563 | 900 | ### Instruction:
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But the plaintiff did plead in paragraph 6 of the plaint that the defendants had " with the evil influence and instigation of Karuppa Gounden, Pongia Goundar and Appachi Gounder of the place who are now planning to have the suit properties for themselves are now evading to rescind the contract". This, in our judgment, is a sufficient plea, if it was necessary to plead it, in support of the case which the plaintiff sought to make out.11. The High Court discarded the testimony of Ramamurthy Iyer on the view that he was inimical to the defendants. We have been taken through his evidence and we see no justification for holding that his testimony could not be believed. If Ramamurthy Iyer was an enemy of the defendants, it is very unlikely that they would permit him to write out an important document at their residence. The broad probabilities of the case strongly support his testimony.12. Having carefully considered the evidence we are of the view that the story of the defendants that only Rs. 350/- were paid to them on July 4, 1956, and no Rs. 2,000/- as recited in the memorandum is untrue and has been put up as an excuse for resiling from the agreement.13. The second plea that there was an alteration in the memorandum in material particulars cannot also be sustained. The original document is not before us, but from the cross-examination of the writer and the plaintiffs witnesses and also from the testimony of T. P. Sengottiah and his witnesses it does not appear that the words "Clear the debts and execute the sale deed free from encumbrance" were written in a cramped style. This sentence occurs immediately before the Schedule of property sold and after the first three paragraphs of the covenants of the memorandum. There was no reason for the writer to leave any space which could be availed of to add this sentence after the document was executed. There is no denial that the sentence has been written by Ramamurthy. It is true that the High Court has observed that the ink in which the sentence was written appeared to be slightly different in shade from the rest of the document. But Ramamurthy Iyer has deposed that it was not true that the portion in the agreement relating to the encumbrance was written subsequent to the agreement in collusion with the plaintiff. He explained that the ink in his fountain-pen was exhausted when he wrote with one pen, and he wrote the portion after reading the document, with another fountain-pen, and since the portion was written in a hurry the ink may have differed. According to him he did not notice any difference in ink. There is no reason to disbelieve the testimony of Ramamurthy Iyer.14. Even if it be assumed that the sentence regarding encumbrance was written after the deed was executed it will not invalidate the deed. The second defendant and his witnesses have admitted that there was no discussion at the time of the writing and execution of the agreement about the encumbrances upon the land. There is not even evidence that there were any encumbrances subsisting on the land.Ordinarily when property is agreed to be sold for a price, it would be the duty of the vendor to clear it of all the encumbrances before executing the sale deed. The alteration, if any, cannot therefore be regarded as material. As observed in Halsburys Laws of England, Vol. 11, 3rd Edn., Art. 599 at p. 368:"A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed,or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed.The effect of making such an alteration, without the consent of the party bound, is exactly the same as that of cancelling the deed."15. It is also stated in Art. 604 at pp. 370 and 371:"An alteration made in a deed, after its execution, in some particular which is not material does not in any way affect the validity of the deed; x x x x an alteration is not material which does not vary the legal effect of the deed in its original state,but merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties already apparent on the face of the deed, provided that the alteration does not otherwise prejudice the party liable thereunder."This rule has been applied by the Privy Council in Nathu Lal v. Mt. Gomti Kuar, 67 Ind App 318 = (AIR 1940 PC 160 ). The Judicial Committee observed in that case at p. 331 (of Ind App) = (at p. 164 of AIR):"A deed is nothing more than an instrument or agreement under seal; and the principle of those cases is that any alteration in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument."The Judicial Committee observed at p. 333 (of Ind App) = (at p. 165 of AIR):"A material alteration has been defined in the rule as one which varies the rights, liabilities or legal position of the parties ascertained by the deed, etc.,"and after applying that test they held that the alteration in that case was not material in the sense of altering the rights, liabilities or legal position of the parties or the legal effect of the document.16. Since the defendants were liable to clear the encumbrances, if any, subsisting on the land before executing the sale deed, assuming that the covenant was incorporated after the execution of the deed, it cannot be regarded as a material alteration on that account, for, it does not alter the rights or liabilities of the parties or the legal effects of the instrument.
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6. The learned Trial Judge accepted the testimony of the plaintiff and his witness Ramamurthy Iyer. The High Court was of the view that the testimony of T. P. Sengottiah and the attesting witness should be preferred. In our judgment the dispute may be resolved by considering the conflicting testimony of the witnesses in the light of broadcase of the defendants that they relied upon the bare word of the plaintiff that he will pay the balance of Rupees 1,650/- within three days and on that representation they parted with the memorandum is, in our judgment,It was also observed by the High Court that there was no particular reason for the defendants to resile from the terms of the agreement within three days of its execution, and set up a false plea, and that in "such cases evidence is given to prove that it was a temptation of a better offer that induced the party to resile from the agreement". The plaintiff did state in his evidence that his pangalis who were inimical to him had made an offer of Rs. 16,000/- for the property, and because of that offer the defendants resiled from the agreement. In the view of the High Court this part of the case of the plaintiff could not be believed because it was not expressly pleaded in the plaint. But the plaintiff did plead in paragraph 6 of the plaint that the defendants had " with the evil influence and instigation of Karuppa Gounden, Pongia Goundar and Appachi Gounder of the place who are now planning to have the suit properties for themselves are now evading to rescind the contract". This, in our judgment, is a sufficient plea, if it was necessary to plead it, in support of the case which the plaintiff sought to make out.11. The High Court discarded the testimony of Ramamurthy Iyer on the view that he was inimical to the defendants. We have been taken through his evidence and we see no justification for holding that his testimony could not be believed. If Ramamurthy Iyer was an enemy of the defendants, it is very unlikely that they would permit him to write out an important document at their residence. The broad probabilities of the case strongly support his testimony.12. Having carefully considered the evidence we are of the view that the story of the defendants that only Rs. 350/- were paid to them on July 4, 1956, and no Rs. 2,000/- as recited in the memorandum is untrue and has been put up as an excuse for resiling from theoriginal document is not before us, but from the cross-examination of the writer and the plaintiffs witnesses and also from the testimony of T. P. Sengottiah and his witnesses it does not appear that the words "Clear the debts and execute the sale deed free from encumbrance" were written in a cramped style. This sentence occurs immediately before the Schedule of property sold and after the first three paragraphs of the covenants of the memorandum. There was no reason for the writer to leave any space which could be availed of to add this sentence after the document was executed. There is no denial that the sentence has been written by Ramamurthy. It is true that the High Court has observed that the ink in which the sentence was written appeared to be slightly different in shade from the rest of the document. But Ramamurthy Iyer has deposed that it was not true that the portion in the agreement relating to the encumbrance was written subsequent to the agreement in collusion with the plaintiff. He explained that the ink in his fountain-pen was exhausted when he wrote with one pen, and he wrote the portion after reading the document, with another fountain-pen, and since the portion was written in a hurry the ink may have differed. According to him he did not notice any difference in ink. There is no reason to disbelieve the testimony of Ramamurthy Iyer.14. Even if it be assumed that the sentence regarding encumbrance was written after the deed was executed it will not invalidate the deed. The second defendant and his witnesses have admitted that there was no discussion at the time of the writing and execution of the agreement about the encumbrances upon the land. There is not even evidence that there were any encumbrances subsisting on the land.Ordinarily when property is agreed to be sold for a price, it would be the duty of the vendor to clear it of all the encumbrances before executing the sale deed. The alteration, if any, cannot therefore be regarded asSince the defendants were liable to clear the encumbrances, if any, subsisting on the land before executing the sale deed, assuming that the covenant was incorporated after the execution of the deed, it cannot be regarded as a material alteration on that account, for, it does not alter the rights or liabilities of the parties or the legal effects of the instrument.
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T. Nagappa Vs. T.C. Basappa & Others | Nagappa, AIR 1954 SC 440 (A).3. The appellant has now come up to this Court by way of special appeal against the order of the Tribunal dated 15-l-1953, and has urged the following grounds :(1) The findings that the appellant had committed the corrupt practices mentioned in Ss. 123(6) and (8) and S. 124 (4) are not justified by the evidence;(2) The Tribunal was in error in declaring the first respondent herein duly elected; and(3) The Tribunal had acted illegally in recording a finding against the appellant that he had become disqualified under Ss. 140 and 143 without notice to him under the proviso to S. 99.4. As regards the first contention, this Court has repeatedly held that ordinarily it will not in special appeal review findings of fact recorded by an Election Tribunal if there is evidence on which they could be reached. The appellant is unable to say that there is no. evidence whatsoever in support of these findings, and we must therefore decline to interfere with them.5. (2) It is next contended that having found that the appellant was guilty of corrupt practices, the Tribunal should have stopped with declaring his election void, and should not have passed the further order under S. 101 (b) declaring the first respondent duly elected. What the Tribunal has done is this : It found that about 60 voters were transported by Ahmed Jan to the polling booth, that of them 47 were Muslim women who voted for the appellant, and that if their votes were struck out, the margin of difference between the appellant and the first respondent which was only 34 votes would disappear, and the first respondent would have secured the largest number of valid votes.This is in accordance with S. 101 (b) which enacts that if the, Tribunal is of opinion that but for the votes obtained by the returned candidate by corrupt or illegal practices, the petitioner would have obtained a majority of the valid votes, it could declare him duly elected. It is argued for the appellant that it cannot be said with certainty that the 47 votes recorded by the Muslim women would not have been recorded in favour of the appellant if corrupt practice had not been committed, that it would be mere speculation to hold that they would not be, and that therefore there is no. legal basis for the finding that the first respondent got the majority of votes.6. In support of this contention, reliance is placed on the observations of this Court in Jamuna Prasad v. Lachhi Ram AIR 1954 SC 686 at p. 689 (B) that "there is nothing to show why the majority of the first respondents voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents." There, the Court was considering the question, to which of the defeated candidates the votes obtained by the returned candidate by corrupt and illegal practices would have been given, and it held that it would be mere speculation to hold that they would have been given to the candidate next in the order of votes and not to the others, and as there was no. certainty about the number of the votes, there was no. basis on which the next candidate could be declared elected.But, in the present case, the finding is that in all, 60 votes were recorded by the electors who were transported by Ahmed Jan, and of them at least 47 were recorded for the returned candidate. There is also the further finding that the voters would not have come to the polling booth from their village which was at a long distance but for the facilities furnished by Ahmed Jan. Even if all these votes were recorded in favour of the defeated candidate other than the first respondent, the lead of the latter would remain unaffected. On these facts, therefore, the observations in AIR 1954 SC 686 (B) have no. application. The contention of the appellant, moreover, is not that these votes might have turned the scale in favour of any of the defeated candidates other than the first respondent but in favour of himself. This is contrary to what is provided in S. 101 (b) of the Act, and there is nothing in AIR 1954 SC 686 at p. 689 (B) to support it. We must also observe that this question is really concluded by the observation of this Court in AIR 1954 SC 440 (A) that,"If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latters majority by 34 votes would be completely wiped out and the petitioner (present lst respondent) would gain an undisputed majority".No other argument its urged in support of this contention, which must accordingly be rejected.7. (3) It was finally argued that the finding of the Tribunal that the appellant had become subject to the dis-qualifications mentioned in Ss. 140 and 143 was bad, because no. notice was given to him as required by the proviso to S. 99. We have held in Civil Appeal No. 21 of 1955 (SC) (C) that no. fresh notice under the proviso need be given to a party to the election petition in respect of the very charges which are the subject-matter of enquiry therein and as to which he already had notice.The corrupt practices which have been found to entail the disqualifications under Ss. 140 and 143 are the very matters which formed the subject-matter of the election petition, and as the appellant had already had ample opportunity to defend himself against those charges, there was no. need for a further notice to him under the proviso. We have also held in the said appeal that in making recommendations with reference to the disqualifications mentioned in Ss. 141 to 143, the Tribunal exercises an advisory jurisdiction, and the proviso has no. application to it. Following this decision, we must overrule this contention. | 0[ds]4. As regards the first contention, this Court has repeatedly held that ordinarily it will not in special appeal review findings of fact recorded by an Election Tribunal if there is evidence on which they could be reached. The appellant is unable to say that there is no. evidence whatsoever in support of these findings, and we must therefore decline to interfere withthe Tribunal has done is this : It found that about 60 voters were transported by Ahmed Jan to the polling booth, that of them 47 were Muslim women who voted for the appellant, and that if their votes were struck out, the margin of difference between the appellant and the first respondent which was only 34 votes would disappear, and the first respondent would have secured the largest number of valid votes.This is in accordance with S. 101 (b) which enacts that if the, Tribunal is of opinion that but for the votes obtained by the returned candidate by corrupt or illegal practices, the petitioner would have obtained a majority of the valid votes, it could declare him dulyelected.But, in the present case, the finding is that in all, 60 votes were recorded by the electors who were transported by Ahmed Jan, and of them at least 47 were recorded for the returned candidate. There is also the further finding that the voters would not have come to the polling booth from their village which was at a long distance but for the facilities furnished by Ahmed Jan. Even if all these votes were recorded in favour of the defeated candidate other than the first respondent, the lead of the latter would remain unaffected. On these facts, therefore, the observations in AIR 1954 SC 686 (B) have no. application. The contention of the appellant, moreover, is not that these votes might have turned the scale in favour of any of the defeated candidates other than the first respondent but in favour of himself. This is contrary to what is provided in S. 101 (b) of the Act, and there is nothing in AIR 1954 SC 686 at p. 689 (B) to support it. We must also observe that this question is really concluded by the observation of this Court in AIR 1954 SC 440 (A) that,"If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latters majority by 34 votes would be completely wiped out and the petitioner (present lst respondent) would gain an undisputed majority".No other argument its urged in support of this contention, which must accordingly be rejected.7.(3) It was finally argued that the finding of the Tribunal that the appellant had become subject to thedisqualifications mentioned in Ss.140 and 143 was bad, because no. notice was given to him as required by the proviso to S.We have held in Civil Appeal No. 21 of 1955 (SC) (C) that no. fresh notice under the proviso need be given to a party to the election petition in respect of the very charges which are theof enquiry therein and as to which he already had notice.The corrupt practices which have been found to entail the disqualifications under Ss. 140 and 143 are the very matters which formed theof the election petition, and as the appellant had already had ample opportunity to defend himself against those charges, there was no. need for a further notice to him under the proviso. We have also held in the said appeal that in making recommendations with reference to thedisqualifications mentioned in Ss.141 to 143, the Tribunal exercises an advisory jurisdiction, and the proviso has no. application to it. Following this decision, we must overrule this contention. | 0 | 1,578 | 698 | ### Instruction:
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Nagappa, AIR 1954 SC 440 (A).3. The appellant has now come up to this Court by way of special appeal against the order of the Tribunal dated 15-l-1953, and has urged the following grounds :(1) The findings that the appellant had committed the corrupt practices mentioned in Ss. 123(6) and (8) and S. 124 (4) are not justified by the evidence;(2) The Tribunal was in error in declaring the first respondent herein duly elected; and(3) The Tribunal had acted illegally in recording a finding against the appellant that he had become disqualified under Ss. 140 and 143 without notice to him under the proviso to S. 99.4. As regards the first contention, this Court has repeatedly held that ordinarily it will not in special appeal review findings of fact recorded by an Election Tribunal if there is evidence on which they could be reached. The appellant is unable to say that there is no. evidence whatsoever in support of these findings, and we must therefore decline to interfere with them.5. (2) It is next contended that having found that the appellant was guilty of corrupt practices, the Tribunal should have stopped with declaring his election void, and should not have passed the further order under S. 101 (b) declaring the first respondent duly elected. What the Tribunal has done is this : It found that about 60 voters were transported by Ahmed Jan to the polling booth, that of them 47 were Muslim women who voted for the appellant, and that if their votes were struck out, the margin of difference between the appellant and the first respondent which was only 34 votes would disappear, and the first respondent would have secured the largest number of valid votes.This is in accordance with S. 101 (b) which enacts that if the, Tribunal is of opinion that but for the votes obtained by the returned candidate by corrupt or illegal practices, the petitioner would have obtained a majority of the valid votes, it could declare him duly elected. It is argued for the appellant that it cannot be said with certainty that the 47 votes recorded by the Muslim women would not have been recorded in favour of the appellant if corrupt practice had not been committed, that it would be mere speculation to hold that they would not be, and that therefore there is no. legal basis for the finding that the first respondent got the majority of votes.6. In support of this contention, reliance is placed on the observations of this Court in Jamuna Prasad v. Lachhi Ram AIR 1954 SC 686 at p. 689 (B) that "there is nothing to show why the majority of the first respondents voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents." There, the Court was considering the question, to which of the defeated candidates the votes obtained by the returned candidate by corrupt and illegal practices would have been given, and it held that it would be mere speculation to hold that they would have been given to the candidate next in the order of votes and not to the others, and as there was no. certainty about the number of the votes, there was no. basis on which the next candidate could be declared elected.But, in the present case, the finding is that in all, 60 votes were recorded by the electors who were transported by Ahmed Jan, and of them at least 47 were recorded for the returned candidate. There is also the further finding that the voters would not have come to the polling booth from their village which was at a long distance but for the facilities furnished by Ahmed Jan. Even if all these votes were recorded in favour of the defeated candidate other than the first respondent, the lead of the latter would remain unaffected. On these facts, therefore, the observations in AIR 1954 SC 686 (B) have no. application. The contention of the appellant, moreover, is not that these votes might have turned the scale in favour of any of the defeated candidates other than the first respondent but in favour of himself. This is contrary to what is provided in S. 101 (b) of the Act, and there is nothing in AIR 1954 SC 686 at p. 689 (B) to support it. We must also observe that this question is really concluded by the observation of this Court in AIR 1954 SC 440 (A) that,"If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latters majority by 34 votes would be completely wiped out and the petitioner (present lst respondent) would gain an undisputed majority".No other argument its urged in support of this contention, which must accordingly be rejected.7. (3) It was finally argued that the finding of the Tribunal that the appellant had become subject to the dis-qualifications mentioned in Ss. 140 and 143 was bad, because no. notice was given to him as required by the proviso to S. 99. We have held in Civil Appeal No. 21 of 1955 (SC) (C) that no. fresh notice under the proviso need be given to a party to the election petition in respect of the very charges which are the subject-matter of enquiry therein and as to which he already had notice.The corrupt practices which have been found to entail the disqualifications under Ss. 140 and 143 are the very matters which formed the subject-matter of the election petition, and as the appellant had already had ample opportunity to defend himself against those charges, there was no. need for a further notice to him under the proviso. We have also held in the said appeal that in making recommendations with reference to the disqualifications mentioned in Ss. 141 to 143, the Tribunal exercises an advisory jurisdiction, and the proviso has no. application to it. Following this decision, we must overrule this contention.
### Response:
0
### Explanation:
4. As regards the first contention, this Court has repeatedly held that ordinarily it will not in special appeal review findings of fact recorded by an Election Tribunal if there is evidence on which they could be reached. The appellant is unable to say that there is no. evidence whatsoever in support of these findings, and we must therefore decline to interfere withthe Tribunal has done is this : It found that about 60 voters were transported by Ahmed Jan to the polling booth, that of them 47 were Muslim women who voted for the appellant, and that if their votes were struck out, the margin of difference between the appellant and the first respondent which was only 34 votes would disappear, and the first respondent would have secured the largest number of valid votes.This is in accordance with S. 101 (b) which enacts that if the, Tribunal is of opinion that but for the votes obtained by the returned candidate by corrupt or illegal practices, the petitioner would have obtained a majority of the valid votes, it could declare him dulyelected.But, in the present case, the finding is that in all, 60 votes were recorded by the electors who were transported by Ahmed Jan, and of them at least 47 were recorded for the returned candidate. There is also the further finding that the voters would not have come to the polling booth from their village which was at a long distance but for the facilities furnished by Ahmed Jan. Even if all these votes were recorded in favour of the defeated candidate other than the first respondent, the lead of the latter would remain unaffected. On these facts, therefore, the observations in AIR 1954 SC 686 (B) have no. application. The contention of the appellant, moreover, is not that these votes might have turned the scale in favour of any of the defeated candidates other than the first respondent but in favour of himself. This is contrary to what is provided in S. 101 (b) of the Act, and there is nothing in AIR 1954 SC 686 at p. 689 (B) to support it. We must also observe that this question is really concluded by the observation of this Court in AIR 1954 SC 440 (A) that,"If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latters majority by 34 votes would be completely wiped out and the petitioner (present lst respondent) would gain an undisputed majority".No other argument its urged in support of this contention, which must accordingly be rejected.7.(3) It was finally argued that the finding of the Tribunal that the appellant had become subject to thedisqualifications mentioned in Ss.140 and 143 was bad, because no. notice was given to him as required by the proviso to S.We have held in Civil Appeal No. 21 of 1955 (SC) (C) that no. fresh notice under the proviso need be given to a party to the election petition in respect of the very charges which are theof enquiry therein and as to which he already had notice.The corrupt practices which have been found to entail the disqualifications under Ss. 140 and 143 are the very matters which formed theof the election petition, and as the appellant had already had ample opportunity to defend himself against those charges, there was no. need for a further notice to him under the proviso. We have also held in the said appeal that in making recommendations with reference to thedisqualifications mentioned in Ss.141 to 143, the Tribunal exercises an advisory jurisdiction, and the proviso has no. application to it. Following this decision, we must overrule this contention.
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The Provincial Transport Service Vs. State Industrial Court | management was mala fide or amounted to unfair labour practice or victimisation subject to this that even where no enquiry had been held or the enquiry had not been properly held the employer would have an opportunity of establishing its case for the dismissal of the workman by adducing evidence before an Industrial Tribunal. It seems to us reasonable to think that all this body of law was well-known to those who were responsible for enacting the C. P. and Berar Industrial Disputes Settlement Act, 1947 and that when they used the words "in accordance with law" in Cl. 3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workmen ordered. If the word "law" in Sch. 2 includes not only enacted or statutory law but also common law, it is difficult law as it has been evolved by industrial law as it has been evolved by industrial decisions. We are therefore prima facie inclined to think that the first contention raised by the learned Attorney-General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted. At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself. This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court. We are aware of the view taken by the Bombay High Court in Provincial Transport Services v. Assistant Labour Commissioner, 60 Bom LR 72 and Maroti v. State Industrial Court, Nagpur, 60 Bom LR 1422: (AIR 1959 Bom 61 ) that the "law in the phrase" in accordance with law in Schedule 2 does not include Industrial law. For the reasons mentioned above, we are inclined to think, with respect that this view is not correct. We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed.9. As has already been stated the employees case was that no enquiry had been held by the management. This was denied by the management, and it was alleged that an enquiry had been held. The management produced before the Assistant labour Commissioner papers showing the evidence that was claimed to have been recorded during such enquiry. According to this record, three persons were examined during the enquiry - the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati. At the bottom of this paper there is Kundaliks signature and also Vyankatis signature. The employees case was that his signature had been obtained on a blank paper and the document was then written up. In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik. The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper. He was however impressed by the fact that signature of Kundalik and Vyankati only were obtained and the Enquiring Officers signature does not appear on the paper. While it would certainly have been better if the Enquiring Officer had also put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry. The conclusion of the Assistant Labour Commissioner that "there are sufficient grounds to doubt whether an enquiry was really made" must therefore be held to be perverse. It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in and acting judicially could have reached the particular decision the Court may proceed on the assumption that misconception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been held by the management amounts therefore, in our opinion, to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that it was proper and reasonable for the High Court to correct that error.10. On behalf of the respondent it was sought to be argued that even if an enquiry had been held it has not been shown that the employee had an opportunity of cross-examining witnesses or adducing evidence of his own. It is not open however for the learned Counsel to raise this question in view of the fact that the employee did not ever make any such case himself. His case, as already stated, was that no enquiry had been held at all. No alternative case that the enquiry held was improper because he had not been allowed to cross-examine witnesses or to adduce evidence was made by him. It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to cross examine witnesses and was denied an opportunity to do so. It is not open to him therefore to raise this question for the first time before us. | 0[ds]It seems to us reasonable to think that all this body of law was well-known to those who were responsible for enacting the C. P. and Berar Industrial Disputes Settlement Act, 1947 and that when they used the words "in accordance with law" in Cl. 3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workmen ordered. If the word "law" in Sch. 2 includes not only enacted or statutory law but also common law, it is difficult law as it has been evolved by industrial law as it has been evolved by industrial decisions. We are therefore prima facie inclined to think that the first contention raised by the learned Attorney-General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted. At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself. This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court. We are aware of the view taken by the Bombay High Court in Provincial Transport Services v. Assistant Labour Commissioner, 60 Bom LR 72 and Maroti v. State Industrial Court, Nagpur, 60 Bom LR 1422: (AIR 1959 Bom 61 ) that the "law in the phrase" in accordance with law in Schedule 2 does not include Industrial law. For the reasons mentioned above, we are inclined to think, with respect that this view is not correct. We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed.9. As has already been stated the employees case was that no enquiry had been held by the management. This was denied by the management, and it was alleged that an enquiry had been held. The management produced before the Assistant labour Commissioner papers showing the evidence that was claimed to have been recorded during such enquiry. According to this record, three persons were examined during the enquiry - the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati. At the bottom of this paper there is Kundaliks signature and also Vyankatis signature. The employees case was that his signature had been obtained on a blank paper and the document was then written up. In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik. The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper. He was however impressed by the fact that signature of Kundalik and Vyankati only were obtained and the Enquiring Officers signature does not appear on the paper. While it would certainly have been better if the Enquiring Officer had also put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry. The conclusion of the Assistant Labour Commissioner that "there are sufficient grounds to doubt whether an enquiry was really made" must therefore be held to be perverse. It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in and acting judicially could have reached the particular decision the Court may proceed on the assumption that misconception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been held by the management amounts therefore, in our opinion, to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that it was proper and reasonable for the High Court to correct thatis not open however for the learned Counsel to raise this question in view of the fact that the employee did not ever make any such case himself. His case, as already stated, was that no enquiry had been held at all. No alternative case that the enquiry held was improper because he had not been allowed to cross-examine witnesses or to adduce evidence was made by him. It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to cross examine witnesses and was denied an opportunity to do so. It is not open to him therefore to raise this question for the first time before us. | 0 | 2,502 | 967 | ### 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:
management was mala fide or amounted to unfair labour practice or victimisation subject to this that even where no enquiry had been held or the enquiry had not been properly held the employer would have an opportunity of establishing its case for the dismissal of the workman by adducing evidence before an Industrial Tribunal. It seems to us reasonable to think that all this body of law was well-known to those who were responsible for enacting the C. P. and Berar Industrial Disputes Settlement Act, 1947 and that when they used the words "in accordance with law" in Cl. 3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workmen ordered. If the word "law" in Sch. 2 includes not only enacted or statutory law but also common law, it is difficult law as it has been evolved by industrial law as it has been evolved by industrial decisions. We are therefore prima facie inclined to think that the first contention raised by the learned Attorney-General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted. At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself. This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court. We are aware of the view taken by the Bombay High Court in Provincial Transport Services v. Assistant Labour Commissioner, 60 Bom LR 72 and Maroti v. State Industrial Court, Nagpur, 60 Bom LR 1422: (AIR 1959 Bom 61 ) that the "law in the phrase" in accordance with law in Schedule 2 does not include Industrial law. For the reasons mentioned above, we are inclined to think, with respect that this view is not correct. We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed.9. As has already been stated the employees case was that no enquiry had been held by the management. This was denied by the management, and it was alleged that an enquiry had been held. The management produced before the Assistant labour Commissioner papers showing the evidence that was claimed to have been recorded during such enquiry. According to this record, three persons were examined during the enquiry - the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati. At the bottom of this paper there is Kundaliks signature and also Vyankatis signature. The employees case was that his signature had been obtained on a blank paper and the document was then written up. In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik. The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper. He was however impressed by the fact that signature of Kundalik and Vyankati only were obtained and the Enquiring Officers signature does not appear on the paper. While it would certainly have been better if the Enquiring Officer had also put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry. The conclusion of the Assistant Labour Commissioner that "there are sufficient grounds to doubt whether an enquiry was really made" must therefore be held to be perverse. It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in and acting judicially could have reached the particular decision the Court may proceed on the assumption that misconception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been held by the management amounts therefore, in our opinion, to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that it was proper and reasonable for the High Court to correct that error.10. On behalf of the respondent it was sought to be argued that even if an enquiry had been held it has not been shown that the employee had an opportunity of cross-examining witnesses or adducing evidence of his own. It is not open however for the learned Counsel to raise this question in view of the fact that the employee did not ever make any such case himself. His case, as already stated, was that no enquiry had been held at all. No alternative case that the enquiry held was improper because he had not been allowed to cross-examine witnesses or to adduce evidence was made by him. It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to cross examine witnesses and was denied an opportunity to do so. It is not open to him therefore to raise this question for the first time before us.
### Response:
0
### Explanation:
It seems to us reasonable to think that all this body of law was well-known to those who were responsible for enacting the C. P. and Berar Industrial Disputes Settlement Act, 1947 and that when they used the words "in accordance with law" in Cl. 3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workmen ordered. If the word "law" in Sch. 2 includes not only enacted or statutory law but also common law, it is difficult law as it has been evolved by industrial law as it has been evolved by industrial decisions. We are therefore prima facie inclined to think that the first contention raised by the learned Attorney-General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted. At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself. This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court. We are aware of the view taken by the Bombay High Court in Provincial Transport Services v. Assistant Labour Commissioner, 60 Bom LR 72 and Maroti v. State Industrial Court, Nagpur, 60 Bom LR 1422: (AIR 1959 Bom 61 ) that the "law in the phrase" in accordance with law in Schedule 2 does not include Industrial law. For the reasons mentioned above, we are inclined to think, with respect that this view is not correct. We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed.9. As has already been stated the employees case was that no enquiry had been held by the management. This was denied by the management, and it was alleged that an enquiry had been held. The management produced before the Assistant labour Commissioner papers showing the evidence that was claimed to have been recorded during such enquiry. According to this record, three persons were examined during the enquiry - the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati. At the bottom of this paper there is Kundaliks signature and also Vyankatis signature. The employees case was that his signature had been obtained on a blank paper and the document was then written up. In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik. The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper. He was however impressed by the fact that signature of Kundalik and Vyankati only were obtained and the Enquiring Officers signature does not appear on the paper. While it would certainly have been better if the Enquiring Officer had also put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry. The conclusion of the Assistant Labour Commissioner that "there are sufficient grounds to doubt whether an enquiry was really made" must therefore be held to be perverse. It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in and acting judicially could have reached the particular decision the Court may proceed on the assumption that misconception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been held by the management amounts therefore, in our opinion, to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that it was proper and reasonable for the High Court to correct thatis not open however for the learned Counsel to raise this question in view of the fact that the employee did not ever make any such case himself. His case, as already stated, was that no enquiry had been held at all. No alternative case that the enquiry held was improper because he had not been allowed to cross-examine witnesses or to adduce evidence was made by him. It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to cross examine witnesses and was denied an opportunity to do so. It is not open to him therefore to raise this question for the first time before us.
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Priyanka Estates I'National P.Ltd. Vs. State Of Assam | floor does not fall within the category of compoundable items which is manifest from Appendix III of the building bye-laws of the Corporation reproduced hereinabove. 70. However, with regard to two flats on 5th floor, a direction can be given to the Respondents to consider their cases if they submit their representations within a period of 30 days hereof. Respondents would examine whether their cases fall within the compoundable items/limit or not. In case, Respondents come to the conclusion that these two flats constructed on 5th floor fall within the compoundable limit, then necessary orders be passed in this regard, after charging compounding fees as may be applicable to the facts of the case, in accordance with law, otherwise, they would also face the wrath of demolition. 71. Even a conjoint reading of the order dated 05.05.2000 passed by SAC and the order dated 29.05.2002 of the Administrator-cum-Minister makes it clear as noon day that it does not clothe the Appellants to continue with the construction work beyond 5= floors as these orders were passed subject to fulfilling certain conditions contained therein. 72. It is obvious that what would ultimately constitute a sanctioned and duly approved map would be the one approved by the Commissioner as he alone has authority to do so. The Appellants have failed to produce any such duly approved map. 73. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder. 74. Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed to it has been given by the builders. Rules, regulations and bye-laws are made by Corporation or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent. 75. The jurisdiction and power of courts to indemnify a citizen for injuries suffered due to such unauthorised or illegal construction having been erected by builder/colonizer is required to be compensated by them. An ordinary citizen or a common man is hardly equipped to match the might and power of the builders. 76. In the case in hand, it is noted that number of occupiers were put in possession of the respective flats by the builder/developer constructed unauthorisedly in violation of the laws. Thus, looking to the matter from all angles it cannot be disputed that ultimately the flat owners are going to be the greater sufferers rather than builder who has already pocketed the price of the flat. 77. It is a sound policy to punish the wrong-doer and it is in that spirit that the courts have moulded the reliefs of granting compensation to the victims in exercise of the powers conferred on it. In doing so, the courts are required to take into account not only the interest of the petitioners and the respondents but also the interest of public as a whole with a view that public bodies or officials or builders do not act unlawfully and do perform their duties properly. 78. In the case in hand, admittedly, at no point of time Appellant No.1- M/s. Priyanka Estates International Pvt. Ltd. was able to show to its prospective purchasers the Occupancy Certificate or Completion Certificate issued by the authorities concerned. The same could not even be shown to us and without it, Appellant No.1 could not have embarked into sale of flats as it was mandatorily required. 79. The instant case is not a case of breach of contract. It is a clear case of breach of the obligation undertaken to erect the building in accordance with building regulations and failure to truthfully inform the warranty of title and other allied circumstances. 80. Even though at the first instance, we thought of invoking this Courts jurisdiction conferred under Article 142 of the Constitution of India so as to do complete justice between the parties and to direct awarding of reasonable/suitable compensation/interest to the flat owners, whose flats are ultimately going to be demolished, but, with a very heart, we have restrained ourselves from doing so, for variety of reasons and on account of various disputed questions that may be posed in the matter. However, we grant liberty to those, whose flats are ultimately going to be demolished, to exhaust the remedy that may be available to them in accordance with law. 81. We also feel it necessary and expedient to direct the Respondent-authorities that if ultimately flat owners, whose flats are going to be demolished shall be given at least three months time to vacate the same. This would enable them to mitigate the losses that may be incurred by them. We accordingly direct so. | 0[ds]79. The instant case is not a case of breach of contract. It is a clear case of breach of the obligation undertaken to erect the building in accordance with building regulations and failure to truthfully inform the warranty of title and other allied circumstances80. Even though at the first instance, we thought of invoking this Courts jurisdiction conferred under Article 142 of the Constitution of India so as to do complete justice between the parties and to direct awarding of reasonable/suitable compensation/interest to the flat owners, whose flats are ultimately going to be demolished, but, with a very heart, we have restrained ourselves from doing so, for variety of reasons and on account of various disputed questions that may be posed in the matter. However, we grant liberty to those, whose flats are ultimately going to be demolished, to exhaust the remedy that may be available to them in accordance with law81. We also feel it necessary and expedient to direct the Respondent-authorities that if ultimately flat owners, whose flats are going to be demolished shall be given at least three months time to vacate the same. This would enable them to mitigate the losses that may be incurred by them. We accordingly direct so | 0 | 7,584 | 227 | ### 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:
floor does not fall within the category of compoundable items which is manifest from Appendix III of the building bye-laws of the Corporation reproduced hereinabove. 70. However, with regard to two flats on 5th floor, a direction can be given to the Respondents to consider their cases if they submit their representations within a period of 30 days hereof. Respondents would examine whether their cases fall within the compoundable items/limit or not. In case, Respondents come to the conclusion that these two flats constructed on 5th floor fall within the compoundable limit, then necessary orders be passed in this regard, after charging compounding fees as may be applicable to the facts of the case, in accordance with law, otherwise, they would also face the wrath of demolition. 71. Even a conjoint reading of the order dated 05.05.2000 passed by SAC and the order dated 29.05.2002 of the Administrator-cum-Minister makes it clear as noon day that it does not clothe the Appellants to continue with the construction work beyond 5= floors as these orders were passed subject to fulfilling certain conditions contained therein. 72. It is obvious that what would ultimately constitute a sanctioned and duly approved map would be the one approved by the Commissioner as he alone has authority to do so. The Appellants have failed to produce any such duly approved map. 73. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the Builder. 74. Even though on earlier occasions also, under similar circumstances, there have been judgments of this Court which should have been a pointer to all the builders that raising unauthorised construction never pays and is against the interest of society at large, but, no heed to it has been given by the builders. Rules, regulations and bye-laws are made by Corporation or by Development Authorities, taking in view the larger public interest of the society and it is a bounden duty of the citizens to obey and follow such rules which are made for their benefit. If unauthorised constructions are allowed to stand or given a seal of approval by court then it is bound to affect the public at large. An individual has a right, including a fundamental right, within a reasonable limit, it inroads the public rights leading to public inconvenience, therefore, it is to be curtailed to that extent. 75. The jurisdiction and power of courts to indemnify a citizen for injuries suffered due to such unauthorised or illegal construction having been erected by builder/colonizer is required to be compensated by them. An ordinary citizen or a common man is hardly equipped to match the might and power of the builders. 76. In the case in hand, it is noted that number of occupiers were put in possession of the respective flats by the builder/developer constructed unauthorisedly in violation of the laws. Thus, looking to the matter from all angles it cannot be disputed that ultimately the flat owners are going to be the greater sufferers rather than builder who has already pocketed the price of the flat. 77. It is a sound policy to punish the wrong-doer and it is in that spirit that the courts have moulded the reliefs of granting compensation to the victims in exercise of the powers conferred on it. In doing so, the courts are required to take into account not only the interest of the petitioners and the respondents but also the interest of public as a whole with a view that public bodies or officials or builders do not act unlawfully and do perform their duties properly. 78. In the case in hand, admittedly, at no point of time Appellant No.1- M/s. Priyanka Estates International Pvt. Ltd. was able to show to its prospective purchasers the Occupancy Certificate or Completion Certificate issued by the authorities concerned. The same could not even be shown to us and without it, Appellant No.1 could not have embarked into sale of flats as it was mandatorily required. 79. The instant case is not a case of breach of contract. It is a clear case of breach of the obligation undertaken to erect the building in accordance with building regulations and failure to truthfully inform the warranty of title and other allied circumstances. 80. Even though at the first instance, we thought of invoking this Courts jurisdiction conferred under Article 142 of the Constitution of India so as to do complete justice between the parties and to direct awarding of reasonable/suitable compensation/interest to the flat owners, whose flats are ultimately going to be demolished, but, with a very heart, we have restrained ourselves from doing so, for variety of reasons and on account of various disputed questions that may be posed in the matter. However, we grant liberty to those, whose flats are ultimately going to be demolished, to exhaust the remedy that may be available to them in accordance with law. 81. We also feel it necessary and expedient to direct the Respondent-authorities that if ultimately flat owners, whose flats are going to be demolished shall be given at least three months time to vacate the same. This would enable them to mitigate the losses that may be incurred by them. We accordingly direct so.
### Response:
0
### Explanation:
79. The instant case is not a case of breach of contract. It is a clear case of breach of the obligation undertaken to erect the building in accordance with building regulations and failure to truthfully inform the warranty of title and other allied circumstances80. Even though at the first instance, we thought of invoking this Courts jurisdiction conferred under Article 142 of the Constitution of India so as to do complete justice between the parties and to direct awarding of reasonable/suitable compensation/interest to the flat owners, whose flats are ultimately going to be demolished, but, with a very heart, we have restrained ourselves from doing so, for variety of reasons and on account of various disputed questions that may be posed in the matter. However, we grant liberty to those, whose flats are ultimately going to be demolished, to exhaust the remedy that may be available to them in accordance with law81. We also feel it necessary and expedient to direct the Respondent-authorities that if ultimately flat owners, whose flats are going to be demolished shall be given at least three months time to vacate the same. This would enable them to mitigate the losses that may be incurred by them. We accordingly direct so
|
Chougule & Company, Pvt., Limited Vs. Union of India & Another | 28,1955 for grant of the mining lease on the ground that he had already been holding this area and had invested considerable sums of money for a period of about two years in developing the mines and mining approach roads. He had already been operating upon a number of manganese mines in North Kanara District and he had good performance to his credit and under the interim orders of the High Court he was still in possession of the buildings put up by him and in the circumstances the Government proposed to sanction the lease to him.7. In reply to the comments of the State Government the appellant disputed some of the statements mentioned therein and stated that it was not to blame for not pursuing the prospecting operations as the authorities of the Central Excise Department did not permit them to conduct the operations in the area which was situate in the Goa border probably for preventing smuggling. The appellants were always ready to start prospecting operations but were unable to do so for causes beyond their control. When the Central Government cancelled the lease granted to Suthankar it was necessary for the State Government to consider the applications for the regrant on their merits and the Directorate of Mines and Geology should have considered the claims of the parties to such a grant and should not have directed the issue of a grant in favour of Suthankar merely because he claimed to have invested money in developing the mines and mining approach roads on the basis of a lease which was not properly granted. Suthankar never held the area under a prospecting licence nor had he done any prospecting operations in the area.8. Reference may be made to S. 11 of the Mines and Minerals (Regulation and Development) Act, 1957 which deals with preferential right in respect of certain persons. Under sub-section (1):-"Where a prospecting licence has been granted in respect of any land, the licensee shall have a preferential right for obtaining a mining lease in respect of that land over any other person".This is however subject to a proviso that the state Government must be satisfied that the licensee had not committed any breach of the terms and conditions of the prospecting licence and was otherwise a fit person for being granted the mining lease, sub-section (2) provides that:"Subject to the provisions of sub-section (1), where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was received later:"and under sub-section (3) the matters referred to in sub-section (2) are as follows:-(a) any special knowledge of, or experience in prospecting operations or mining operations, as the case may be, possessed by the applicant;(b) the financial resources of the applicant;(c) the nature and quality of the technical staff employed or to be employed by the applicant; and(d) such other matters as may be prescribed.9. Learned counsel for the appellant urged that the State Government had nowhere stated that the appellant had committed any breach of the terms and conditions of the prospecting licence; neither had it ever suggested that the appellants were not persons fit for being granted a mining lease. Quite apart from the preferential claim it was necessary for the state Government to consider the relative merits of the claims to the lease put forward by the appellant and Suthankar. They should have considered which of the two applicants were to be preferred on account of its special knowledge or experience in prospecting operations or mining operations, the relative financial resources and the nature and quality of the technical staff employed by them. The Directorate of Mines of the State of Mysore preferred the claim of Suthankar merely because he had carried on some operations under a lease which was cancelled by the Government of India and had carried on some mining operations under that cancelled lease.10. Counsel further contended that the very text of the order of 4th April 1967 shows a complete non-application of mind by the authority rejecting the revision application. The order refers to "the decision of the Government of Mysore to reject" the applicants application for grant of a mining lease whereas in point of fact the Government of Mysore never came to any such decision nor passed any order thereon. It was as a result of the application of the Mineral Concession Rules that the appellants application to the State was deemed to be rejected because no order had been passed thereon for the space of nine months. Further according to learned counsel there was no reference to the comments of the State Government made on the revision application of the appellant and the order apparently was not based on the grounds given in such comment, unless it be held that a reference to the appellants letter dated 29th November, 1966 indirectly brought in the comments of the State Government.11. There is a striking similarity between the impugned order passed in this case and the one which was quashed in Bhagat Rajas case. It will be noted that excepting for the difference in the dates and the details of the lands in respect of which the lease was claimed the texts of the two orders are identical. One cannot but remark that orders rejecting such applications appear to be made on a formula which is well known to the department. In our view Departments cannot be allowed to perform their tasks so perfunctorily in disposing of claims of parties to valuable rights and it is incumbent on them to indicate the grounds on which the revision applications are disposed of unless the State Government had already in its order of rejection given the grounds and the Union Government referred to such grounds in its capacity as a revising authority. | 1[ds]Quite apart from the preferential claim it was necessary for the state Government to consider the relative merits of the claims to the lease put forward by the appellant and Suthankar. They should have considered which of the two applicants were to be preferred on account of its special knowledge or experience in prospecting operations or mining operations, the relative financial resources and the nature and quality of the technical staff employed by them. The Directorate of Mines of the State of Mysore preferred the claim of Suthankar merely because he had carried on some operations under a lease which was cancelled by the Government of India and had carried on some mining operations under that cancelledorder refers to "the decision of the Government of Mysore to reject" the applicants application for grant of a mining lease whereas in point of fact the Government of Mysore never came to any such decision nor passed any order thereon. It was as a result of the application of the Mineral Concession Rules that the appellants application to the State was deemed to be rejected because no order had been passed thereon for the space of nine months. Further according to learned counsel there was no reference to the comments of the State Government made on the revision application of the appellant and the order apparently was not based on the grounds given in such comment, unless it be held that a reference to the appellants letter dated 29th November, 1966 indirectly brought in the comments of the State Government.11. There is a striking similarity between the impugned order passed in this case and the one which was quashed in Bhagat Rajas case. It will be noted that excepting for the difference in the dates and the details of the lands in respect of which the lease was claimed the texts of the two orders are identical. One cannot but remark that orders rejecting such applications appear to be made on a formula which is well known to the department. In our view Departments cannot be allowed to perform their tasks so perfunctorily in disposing of claims of parties to valuable rights and it is incumbent on them to indicate the grounds on which the revision applications are disposed of unless the State Government had already in its order of rejection given the grounds and the Union Government referred to such grounds in its capacity as a revising authority. | 1 | 2,926 | 426 | ### 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:
28,1955 for grant of the mining lease on the ground that he had already been holding this area and had invested considerable sums of money for a period of about two years in developing the mines and mining approach roads. He had already been operating upon a number of manganese mines in North Kanara District and he had good performance to his credit and under the interim orders of the High Court he was still in possession of the buildings put up by him and in the circumstances the Government proposed to sanction the lease to him.7. In reply to the comments of the State Government the appellant disputed some of the statements mentioned therein and stated that it was not to blame for not pursuing the prospecting operations as the authorities of the Central Excise Department did not permit them to conduct the operations in the area which was situate in the Goa border probably for preventing smuggling. The appellants were always ready to start prospecting operations but were unable to do so for causes beyond their control. When the Central Government cancelled the lease granted to Suthankar it was necessary for the State Government to consider the applications for the regrant on their merits and the Directorate of Mines and Geology should have considered the claims of the parties to such a grant and should not have directed the issue of a grant in favour of Suthankar merely because he claimed to have invested money in developing the mines and mining approach roads on the basis of a lease which was not properly granted. Suthankar never held the area under a prospecting licence nor had he done any prospecting operations in the area.8. Reference may be made to S. 11 of the Mines and Minerals (Regulation and Development) Act, 1957 which deals with preferential right in respect of certain persons. Under sub-section (1):-"Where a prospecting licence has been granted in respect of any land, the licensee shall have a preferential right for obtaining a mining lease in respect of that land over any other person".This is however subject to a proviso that the state Government must be satisfied that the licensee had not committed any breach of the terms and conditions of the prospecting licence and was otherwise a fit person for being granted the mining lease, sub-section (2) provides that:"Subject to the provisions of sub-section (1), where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was received later:"and under sub-section (3) the matters referred to in sub-section (2) are as follows:-(a) any special knowledge of, or experience in prospecting operations or mining operations, as the case may be, possessed by the applicant;(b) the financial resources of the applicant;(c) the nature and quality of the technical staff employed or to be employed by the applicant; and(d) such other matters as may be prescribed.9. Learned counsel for the appellant urged that the State Government had nowhere stated that the appellant had committed any breach of the terms and conditions of the prospecting licence; neither had it ever suggested that the appellants were not persons fit for being granted a mining lease. Quite apart from the preferential claim it was necessary for the state Government to consider the relative merits of the claims to the lease put forward by the appellant and Suthankar. They should have considered which of the two applicants were to be preferred on account of its special knowledge or experience in prospecting operations or mining operations, the relative financial resources and the nature and quality of the technical staff employed by them. The Directorate of Mines of the State of Mysore preferred the claim of Suthankar merely because he had carried on some operations under a lease which was cancelled by the Government of India and had carried on some mining operations under that cancelled lease.10. Counsel further contended that the very text of the order of 4th April 1967 shows a complete non-application of mind by the authority rejecting the revision application. The order refers to "the decision of the Government of Mysore to reject" the applicants application for grant of a mining lease whereas in point of fact the Government of Mysore never came to any such decision nor passed any order thereon. It was as a result of the application of the Mineral Concession Rules that the appellants application to the State was deemed to be rejected because no order had been passed thereon for the space of nine months. Further according to learned counsel there was no reference to the comments of the State Government made on the revision application of the appellant and the order apparently was not based on the grounds given in such comment, unless it be held that a reference to the appellants letter dated 29th November, 1966 indirectly brought in the comments of the State Government.11. There is a striking similarity between the impugned order passed in this case and the one which was quashed in Bhagat Rajas case. It will be noted that excepting for the difference in the dates and the details of the lands in respect of which the lease was claimed the texts of the two orders are identical. One cannot but remark that orders rejecting such applications appear to be made on a formula which is well known to the department. In our view Departments cannot be allowed to perform their tasks so perfunctorily in disposing of claims of parties to valuable rights and it is incumbent on them to indicate the grounds on which the revision applications are disposed of unless the State Government had already in its order of rejection given the grounds and the Union Government referred to such grounds in its capacity as a revising authority.
### Response:
1
### Explanation:
Quite apart from the preferential claim it was necessary for the state Government to consider the relative merits of the claims to the lease put forward by the appellant and Suthankar. They should have considered which of the two applicants were to be preferred on account of its special knowledge or experience in prospecting operations or mining operations, the relative financial resources and the nature and quality of the technical staff employed by them. The Directorate of Mines of the State of Mysore preferred the claim of Suthankar merely because he had carried on some operations under a lease which was cancelled by the Government of India and had carried on some mining operations under that cancelledorder refers to "the decision of the Government of Mysore to reject" the applicants application for grant of a mining lease whereas in point of fact the Government of Mysore never came to any such decision nor passed any order thereon. It was as a result of the application of the Mineral Concession Rules that the appellants application to the State was deemed to be rejected because no order had been passed thereon for the space of nine months. Further according to learned counsel there was no reference to the comments of the State Government made on the revision application of the appellant and the order apparently was not based on the grounds given in such comment, unless it be held that a reference to the appellants letter dated 29th November, 1966 indirectly brought in the comments of the State Government.11. There is a striking similarity between the impugned order passed in this case and the one which was quashed in Bhagat Rajas case. It will be noted that excepting for the difference in the dates and the details of the lands in respect of which the lease was claimed the texts of the two orders are identical. One cannot but remark that orders rejecting such applications appear to be made on a formula which is well known to the department. In our view Departments cannot be allowed to perform their tasks so perfunctorily in disposing of claims of parties to valuable rights and it is incumbent on them to indicate the grounds on which the revision applications are disposed of unless the State Government had already in its order of rejection given the grounds and the Union Government referred to such grounds in its capacity as a revising authority.
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Shyamapada Chakrabertty And Others Vs. The Controller Of Insurance, Government Of India Simla And Others | the Controller. Mr. Sinhas point is that under S. 36 the Controller could only sanction the scheme of which notice had been given under S. 35. He, therefore, contends that the sanction granted by the Controller in this case was not in terms of the section and hence a nullity. The learned Solicitor-General appearing to oppose the appeal contends that on a proper construction of the sections the Controller had power to sanction a scheme modified after notice under S. 35(3) had been issued. It is however unnecessary in this case to decide the question so raised. 17. We will assume for the present purpose that under S. 36(1) only the scheme of transfer in respect of which notice under S. 35(3) had been given could be sanctioned and not a modified version of it. The scheme and the resolution of the share-holders of the transferor company approving it, however both provided for its modification later at the suggestion of the Controller and gave power to the directors to accept the modifications on behalf of the company. The modifications were pursuant to the terms of the scheme as approved by the shareholders of the transferor Company. Therefore, in substance, it was the scheme of which notice had been given under S. 35(3) which was sanctioned. 18. A similar, view was taken in England in regard to Ss. 153 and 154 of the English Companies Act. 1929. Those sections dealt with compromises with creditors and for reconstruction and amalgamation of companies. These could be effected by an order of court after the relative scheme had been approved by the companies or creditors concerned. It was generally felt that the court could either sanction the scheme approved by the shareholders or reject it but had no power to modify it. The contention of Mr. Sinha in the present case, it will be remembered, is substantially the same. To remove the doubt as to the power to modify the scheme after it had been approved by the shareholders of the companies concerned, the author of Palmers Company Precedents appears to have recommended the device of inserting in the scheme a clause giving power to the court to modify the scheme and the directors to accept the modification. In the 16th Edition of this well-known book the following passage appears at p. 844."It is more than doubtful whether, if a particular scheme is agreed to at a general meeting of creditors, the court can sanction that scheme with modifications, unless there is some provision in the scheme providing for possible modifications. In cases where there has been no such provision, and some modification has been thought expedient, the court has required the calling of a second meeting to consider the scheme as modified; but to avoid this inconvenience it has for some time past been usual to insert in schemes a clause (originated by the author) expressly empowering the liquidator to assent to any modifications or conditions approved or imposed by the court, and this provision was approved by Chitty J. In Re, Dominion of Canada Freehold Estate and Timber Co., Ltd. (1886) 55 L.T. 347 and has frequently been acted on." 19. This practice seems to have obtained approval in our country too : see Mihirendrakishore Datta v. Brahmanbaria Loan Co., Ltd., ILR 61 Cal 913 : (AIR 1934 Cal 816 ) turning on S. 153 of the Companies Act, 1913, which corresponded to the sections of the English Act earlier mentioned. 20. Mr. Sinha contends that the authorities on the Companies Act earlier referred to had no application to the present case. He says that the sections of the Companies Acts on which these authorities turned were not pari materia with Ss. 35 and 36 of the Insurance Act. His contention is that the object of these sections of the Insurance Act was to protect the shareholders and policy-holders of the Company and that they would be deprived of that protection if a scheme modified subsequently to the issue of the notice under S. (3) could be sanctioned. We do not think that this contention is well founded. So far as the policy-holders are concerned, they have nothing to do with the approval of the scheme. The scheme of transfer was agreed to between the shareholders of the companies concerned in the deal. Assume, as Mr. Sinha says, that under the Insurance Act, as it is under the Companies Act, it is the shareholders who must agree to the scheme. In the cases falling under the Companies Act, it is for protecting the shareholders that it has been held that the court cannot modify the scheme unless the scheme itself gives the court the power to do so. On the assumption made we think it perfectly clear that the position under the Insurance Act is the same. If Mr. Sinha is wrong and under the Insurance Act it is not for the shareholders to sanction the scheme, then there would be less reason for saying that what could be done under the Companies Act, cannot be done under the Insurance Act. 21. The intention of Ss.35 and 36 of the insurance Act would on the basis of Mr. Sinhas contention, be to protect the shareholders from having to accept a scheme to which they have not agreed. Such protection however may be given up by shareholders by inserting in the scheme approved by them a clause empowering the directors to modify it. So far as the policy-holders are concerned, their protection is left in the hands of the Controller. That is the policy of the Insurance Act and, hence, the Controller hears them. In the present case he actually heard the policy-holders. Therefore it does not seem to us that it can be contended with substance that Ss. 35 and 36 of the Insurance Act are not pari materia with the sections of the Companies Acts to which we have earlier referred. The last point of Mr. Sinha must also fail. 22. | 0[ds].The obvious answer to this contention is that the transfer does not affect any alteration in the memorandum of the transferor company. Clause 3( 27) of the memorandum of the transferor company gives it the power to sell its undertaking. The transfer in this case is an exercise of this power and hence within the objects of the company. An exercise by a company of a power given by its memorandum cannot amount to an alteration of the memorandum at allIn the present case the thing has been done under express statutory power. No question here arises of a corporate power in the sense it arose in Bisgoods case, (1908) 1 Ch. 743In the present case, what had happened was that an agreement between the two companies for the purpose of the transfer had been made by the directors and it was subsequently approved by the shareholders of the transferor company at a general meeting by about 82 per cent, majority. It was after such approval that the transfer had been sanctioned under S. 136 of the Insurance Act and may be, though we do not have this on the record, the transfer was effected by proper documents executed between the companies. An agreement only to transfer the undertaking by the directors clearly does not violate S. 86H for it is merely tentative subject to final approval by the Company in meeting .This we think is by itself sufficient answer to Mr. Sinhas present contentionIt is somewhat difficult to appreciate this point. There was no defect in the directors in making the agreement to transfer; such agreement did not effect the transfer. Even Assuming that the agreement was beyond the power of the directors, it cannot be said that the approval of it by the shareholers had been without any knowledge of the defect. The defect was of the want of the directors power to transfer in view of the provisions of S. 86H of which the shareholders cannot be heard to deny knowledge. The case of Premila Devi v. People Bank of Nortern India Ltd., AIR 1938 PC 284 on which Mr. Sinha relied for the present purpose is of no assistance of him. There certain shares had been illegally forfeited but it was contended that the shareholders had ratified the forfeiture. It was held that the retification, if any, was of no use because it had not been shown that the attention of the shareholders and creditors had been drawn to the illegality which depended on facts of which no knowledge by the shareholders could be presumed. In the present case, the defect, if any, arose from a statutory provision itself of which the shareholders, must be deemed to have had knowledgeThis contention is, in our view, wholly misconceived. Reduction of share capital under these sections is not brought about by loss of assets. A bare perusal of the sections, we think, is enough to establish that. The disappearance of the assets of the Company, for whatever reason, does not cause a reduction of the share capitalWe will assume for the present purpose that the petitioner who is an agent, had acquired such a right against the transferor company under S.44. We do not however see that such rights are in any way affected by the transfer. The right of the petitioner agent against the Company remains. It may be that he cannot realise the amount due, by enforcing that right because the transferor company has no assets left after the transfer out of which in pay the commission. But S. 44 does not say that an insurance company shall not be entitled lawfully to deal with its assets where the effect of such dealing might be that nothing is left out of which the agents can be paid their commission. Furthermore, it has to be remembered that what has been done in this case has been done under the same Act. Section 36 of the Insurance Act does not say that a transfer shall not be sanctioned if the effect of it is to leave no assets with the transferor company. Reading the two sections together, as we trust do, it is not possible to take the view that a transfer cannot be sanctioned under S. 36 if the result of that is to denude the transferor company of all its assets out of which an agent can be paid his commission. It does not seem to us however that any question of discrimination arises in the present case. The transfer was sanctioned with the assent of the share-holders of the two companies concerned. The sanction was given after the policy-holders of the transferor company were heard. Again, S. 36 of the Insurance Act applies to all insurance companies where the companies in general meeting agree to a transfer. No action under S. 36 can be taken except on the initiative of the companies concerned. It is done in the best interests of the policy-holdersThe modifications were pursuant to the terms of the scheme as approved by the shareholders of the transferor Company. Therefore, in substance, it was the scheme of which notice had been given under S. 35(3) which was sanctionedWe do not think that this contention is well founded. So far as the policy-holders are concerned, they have nothing to do with the approval of the scheme. The scheme of transfer was agreed to between the shareholders of the companies concerned in the deal. Assume, as Mr. Sinha says, that under the Insurance Act, as it is under the Companies Act, it is the shareholders who must agree to the scheme. In the cases falling under the Companies Act, it is for protecting the shareholders that it has been held that the court cannot modify the scheme unless the scheme itself gives the court the power to do so. On the assumption made we think it perfectly clear that the position under the Insurance Act is the same. If Mr. Sinha is wrong and under the Insurance Act it is not for the shareholders to sanction the scheme, then there would be less reason for saying that what could be done under the Companies Act, cannot be done under the Insurance Act.The intention of Ss.35 and 36 of the insurance Act would on the basis of Mr. Sinhas contention, be to protect the shareholders from having to accept a scheme to which they have not agreed. Such protection however may be given up by shareholders by inserting in the scheme approved by them a clause empowering the directors to modify it. So far as the policy-holders are concerned, their protection is left in the hands of the Controller. That is the policy of the Insurance Act and, hence, the Controller hears them. In the present case he actually heard the policy-holders. Therefore it does not seem to us that it can be contended with substance that Ss. 35 and 36 of the Insurance Act are not pari materia with the sections of the Companies Acts to which we have earlier referred. The last point of Mr. Sinha must also fail. | 0 | 4,354 | 1,288 | ### Instruction:
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the Controller. Mr. Sinhas point is that under S. 36 the Controller could only sanction the scheme of which notice had been given under S. 35. He, therefore, contends that the sanction granted by the Controller in this case was not in terms of the section and hence a nullity. The learned Solicitor-General appearing to oppose the appeal contends that on a proper construction of the sections the Controller had power to sanction a scheme modified after notice under S. 35(3) had been issued. It is however unnecessary in this case to decide the question so raised. 17. We will assume for the present purpose that under S. 36(1) only the scheme of transfer in respect of which notice under S. 35(3) had been given could be sanctioned and not a modified version of it. The scheme and the resolution of the share-holders of the transferor company approving it, however both provided for its modification later at the suggestion of the Controller and gave power to the directors to accept the modifications on behalf of the company. The modifications were pursuant to the terms of the scheme as approved by the shareholders of the transferor Company. Therefore, in substance, it was the scheme of which notice had been given under S. 35(3) which was sanctioned. 18. A similar, view was taken in England in regard to Ss. 153 and 154 of the English Companies Act. 1929. Those sections dealt with compromises with creditors and for reconstruction and amalgamation of companies. These could be effected by an order of court after the relative scheme had been approved by the companies or creditors concerned. It was generally felt that the court could either sanction the scheme approved by the shareholders or reject it but had no power to modify it. The contention of Mr. Sinha in the present case, it will be remembered, is substantially the same. To remove the doubt as to the power to modify the scheme after it had been approved by the shareholders of the companies concerned, the author of Palmers Company Precedents appears to have recommended the device of inserting in the scheme a clause giving power to the court to modify the scheme and the directors to accept the modification. In the 16th Edition of this well-known book the following passage appears at p. 844."It is more than doubtful whether, if a particular scheme is agreed to at a general meeting of creditors, the court can sanction that scheme with modifications, unless there is some provision in the scheme providing for possible modifications. In cases where there has been no such provision, and some modification has been thought expedient, the court has required the calling of a second meeting to consider the scheme as modified; but to avoid this inconvenience it has for some time past been usual to insert in schemes a clause (originated by the author) expressly empowering the liquidator to assent to any modifications or conditions approved or imposed by the court, and this provision was approved by Chitty J. In Re, Dominion of Canada Freehold Estate and Timber Co., Ltd. (1886) 55 L.T. 347 and has frequently been acted on." 19. This practice seems to have obtained approval in our country too : see Mihirendrakishore Datta v. Brahmanbaria Loan Co., Ltd., ILR 61 Cal 913 : (AIR 1934 Cal 816 ) turning on S. 153 of the Companies Act, 1913, which corresponded to the sections of the English Act earlier mentioned. 20. Mr. Sinha contends that the authorities on the Companies Act earlier referred to had no application to the present case. He says that the sections of the Companies Acts on which these authorities turned were not pari materia with Ss. 35 and 36 of the Insurance Act. His contention is that the object of these sections of the Insurance Act was to protect the shareholders and policy-holders of the Company and that they would be deprived of that protection if a scheme modified subsequently to the issue of the notice under S. (3) could be sanctioned. We do not think that this contention is well founded. So far as the policy-holders are concerned, they have nothing to do with the approval of the scheme. The scheme of transfer was agreed to between the shareholders of the companies concerned in the deal. Assume, as Mr. Sinha says, that under the Insurance Act, as it is under the Companies Act, it is the shareholders who must agree to the scheme. In the cases falling under the Companies Act, it is for protecting the shareholders that it has been held that the court cannot modify the scheme unless the scheme itself gives the court the power to do so. On the assumption made we think it perfectly clear that the position under the Insurance Act is the same. If Mr. Sinha is wrong and under the Insurance Act it is not for the shareholders to sanction the scheme, then there would be less reason for saying that what could be done under the Companies Act, cannot be done under the Insurance Act. 21. The intention of Ss.35 and 36 of the insurance Act would on the basis of Mr. Sinhas contention, be to protect the shareholders from having to accept a scheme to which they have not agreed. Such protection however may be given up by shareholders by inserting in the scheme approved by them a clause empowering the directors to modify it. So far as the policy-holders are concerned, their protection is left in the hands of the Controller. That is the policy of the Insurance Act and, hence, the Controller hears them. In the present case he actually heard the policy-holders. Therefore it does not seem to us that it can be contended with substance that Ss. 35 and 36 of the Insurance Act are not pari materia with the sections of the Companies Acts to which we have earlier referred. The last point of Mr. Sinha must also fail. 22.
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this on the record, the transfer was effected by proper documents executed between the companies. An agreement only to transfer the undertaking by the directors clearly does not violate S. 86H for it is merely tentative subject to final approval by the Company in meeting .This we think is by itself sufficient answer to Mr. Sinhas present contentionIt is somewhat difficult to appreciate this point. There was no defect in the directors in making the agreement to transfer; such agreement did not effect the transfer. Even Assuming that the agreement was beyond the power of the directors, it cannot be said that the approval of it by the shareholers had been without any knowledge of the defect. The defect was of the want of the directors power to transfer in view of the provisions of S. 86H of which the shareholders cannot be heard to deny knowledge. The case of Premila Devi v. People Bank of Nortern India Ltd., AIR 1938 PC 284 on which Mr. Sinha relied for the present purpose is of no assistance of him. There certain shares had been illegally forfeited but it was contended that the shareholders had ratified the forfeiture. It was held that the retification, if any, was of no use because it had not been shown that the attention of the shareholders and creditors had been drawn to the illegality which depended on facts of which no knowledge by the shareholders could be presumed. In the present case, the defect, if any, arose from a statutory provision itself of which the shareholders, must be deemed to have had knowledgeThis contention is, in our view, wholly misconceived. Reduction of share capital under these sections is not brought about by loss of assets. A bare perusal of the sections, we think, is enough to establish that. The disappearance of the assets of the Company, for whatever reason, does not cause a reduction of the share capitalWe will assume for the present purpose that the petitioner who is an agent, had acquired such a right against the transferor company under S.44. We do not however see that such rights are in any way affected by the transfer. The right of the petitioner agent against the Company remains. It may be that he cannot realise the amount due, by enforcing that right because the transferor company has no assets left after the transfer out of which in pay the commission. But S. 44 does not say that an insurance company shall not be entitled lawfully to deal with its assets where the effect of such dealing might be that nothing is left out of which the agents can be paid their commission. Furthermore, it has to be remembered that what has been done in this case has been done under the same Act. Section 36 of the Insurance Act does not say that a transfer shall not be sanctioned if the effect of it is to leave no assets with the transferor company. Reading the two sections together, as we trust do, it is not possible to take the view that a transfer cannot be sanctioned under S. 36 if the result of that is to denude the transferor company of all its assets out of which an agent can be paid his commission. It does not seem to us however that any question of discrimination arises in the present case. The transfer was sanctioned with the assent of the share-holders of the two companies concerned. The sanction was given after the policy-holders of the transferor company were heard. Again, S. 36 of the Insurance Act applies to all insurance companies where the companies in general meeting agree to a transfer. No action under S. 36 can be taken except on the initiative of the companies concerned. It is done in the best interests of the policy-holdersThe modifications were pursuant to the terms of the scheme as approved by the shareholders of the transferor Company. Therefore, in substance, it was the scheme of which notice had been given under S. 35(3) which was sanctionedWe do not think that this contention is well founded. So far as the policy-holders are concerned, they have nothing to do with the approval of the scheme. The scheme of transfer was agreed to between the shareholders of the companies concerned in the deal. Assume, as Mr. Sinha says, that under the Insurance Act, as it is under the Companies Act, it is the shareholders who must agree to the scheme. In the cases falling under the Companies Act, it is for protecting the shareholders that it has been held that the court cannot modify the scheme unless the scheme itself gives the court the power to do so. On the assumption made we think it perfectly clear that the position under the Insurance Act is the same. If Mr. Sinha is wrong and under the Insurance Act it is not for the shareholders to sanction the scheme, then there would be less reason for saying that what could be done under the Companies Act, cannot be done under the Insurance Act.The intention of Ss.35 and 36 of the insurance Act would on the basis of Mr. Sinhas contention, be to protect the shareholders from having to accept a scheme to which they have not agreed. Such protection however may be given up by shareholders by inserting in the scheme approved by them a clause empowering the directors to modify it. So far as the policy-holders are concerned, their protection is left in the hands of the Controller. That is the policy of the Insurance Act and, hence, the Controller hears them. In the present case he actually heard the policy-holders. Therefore it does not seem to us that it can be contended with substance that Ss. 35 and 36 of the Insurance Act are not pari materia with the sections of the Companies Acts to which we have earlier referred. The last point of Mr. Sinha must also fail.
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The Employee's State Insurance Corporation Vs. Union of India & Ors | account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge……. (emphasis supplied) 23. The contesting respondents submitted that the appellant is estopped from urging that the DACP Scheme is not applicable to the Teaching Cadre at the ESIC since they have taken this stance before the CAT and in its writ petition before the High Court. While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed: 20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it. (emphasis supplied) 24. In Himalayan Coop. Group Housing Society v. Balwan Singh (2015) 7 SCC 373 a three- judge Bench of this Court clarified the law of agency with respect to client-lawyer relationships. The Court held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law or legal conclusions: 32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyers statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the clients instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. (emphasis supplied) 25. Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo (2019) 10 SCC 674 observed that a concession on a question of law concerning service rules would not bind the State: 11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant. The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court. D Conclusion 26. The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court. 27. The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be allowed. | 1[ds]13. The ESIC Recruitment Regulations 2008 and ESIC Recruitment Regulations 2015 have statutory effect by virtue of Section 97(3) of the ESI Act. It is settled law that regulations framed by statutory authorities have the force of enacted law. A Constitution Bench in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 considered the regulations framed by several statutory authorities considered as State within the terms of Article 12. Chief Justice A N Ray held that the regulations have the same effect of law and bind the statutory authorities:21. The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation making authority. To illustrate, rules are always framed in exercise of the specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the law-makers in exercise of specific authority. The vires of law is capable of being challenged if the power is absent or has been exceeded by the authority making rules or regulations.23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down in the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These regulations in the statutes are described as status fetters on freedom of contract. The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other statutes under consideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by regulations. These regulations are not only binding on the authorities but also on the public.15. Respondent 3 to 25 joined the service of the ESIC Model Hospital, Rajajinagar, Bengaluru as Assistant Professors on different dates, between 07 February 2014 and 26 June 2016. On completing two years in the post of Assistant Professor, Respondent 3 to 25 made representations to the appellant seeking promotion to the grade of Associate Professor, claiming the benefit of the DACP Scheme. The Preamble to the ESIC Recruitment Regulations 2015, recites that the prior approval of the Central Government, as necessitated by Section 17(2) of the ESI Act was duly sought. In the event of a conflict between an executive instruction, an office memorandum in this case, and statutory regulations – the latter prevail. A Constitution Bench in Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910 considered the applicability of the letters issued by the Government of India detailing the administrative practice for promotions, against the Indian Police Service (Regulation of Seniority) Rules, 1954. The Constitution Bench held that:7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.18. The contesting respondents have referred to certain letters and to an internal communication of the appellant to urge that the DACP Scheme was to be implemented for promotions at the appellant. However, these letters, similar to the Office Memorandum dated 29 October 2008 implementing the DACP Scheme, would not have the force of law until they were enforced through an amendment to the recruitment regulations. In considering a similar factual situation, a three-judge Bench of this Court in Union of India v. Majji Jangamayya (1977) 1 SCC 606 held that:31. The second question is whether the requirement of 10 years experience was a statutory rule. The High Court held that the requirement of 10 years experience is not a statutory rule. Counsel for the respondents contended that the requirement of 10 years experience is statutory because the letter dated January 16, 1950 is by the Government of India and the Government of India has authority to frame rules and one of the letters dated July 21, 1950 referred to it as a formal rule. The contention is erroneous because there is a distinction between statutory orders and administrative instructions of the Government. This Court has held that in the absence of statutory rules, executive orders or administrative instructions may be made. (See CIT v. A. Raman & Company [AIR 1968 SC 49 : (1968) 1 SCR 10 : 67 ITR 11] )34. Counsel on behalf of the respondents contended that the requirement of 10 years experience laid down in the letter dated January 16, 1950 had the force of law because of Article 313. Article 313 does not change the legal character of a document. Article 313 refers to laws in force which mean statutory laws. An administrative instruction or order is not a statutory rule. The administrative instructions can be changed by the Government by reason of Article 73(1)(a) itself.36. The expression ordinarily in the requirement of 10 years experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons. Administrative instructions if not carried into effect for good reasons cannot confer a right. (See P.C. Sethi v. Union of India [(1975) 4 SCC 67 : 1975 SCC (L&S) 203 : (1975) 3 SCR 201 ] .)….19. On the dates when the contesting respondents joined the service of the appellant - 07 February 2014 till 26 June 2016 - their promotions were governed by the ESIC Recruitment Regulations 2008 which came into effect on 2 May 2009 and mandated four years of qualifying service for promotion from Assistant Professor to Associate Professor. When the contesting respondents had completed two years of service, they were governed by the ESIC Recruitment Regulations 2015 which came into effect on 5 July 2015 and mandated five years of qualifying service for promotion from Assistant Professor to Associate Professor. Thus, the DACP Scheme facilitating promotion on the completion of two years of service is not applicable to the contesting respondents, when the regulations have a statutory effect that overrides the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme.20. The advertisements issued by the appellant mentioned that the DACP Scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. In Malik Mazhar Sultan v. U.P. Public Service Commission (2006) 9 SCC 507 [Malik Mazhar Sultan] a two-judge Bench of this Court clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation. The Court considered the eligibility criteria for the post of Civil Judge (Junior Division) under the U.P. Judicial Service Rules, 2001 against an erroneous advertisement issued by the U.P. Public Service Commission and held:21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.21. In Ashish Kumar v. State of Uttar Pradesh (2018) 3 SCC 55 a two-judge Bench of this Court followed the decision in Malik Mazhar Sultan (supra) in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant recruitment rules and held:27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence….In Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202 a two-judge Bench of this Court held that an earlier advertisement becomes infructuous after a subsequent amendment to the service rules:13. Under these circumstances, therefore, it is difficult to appreciate how the Division Bench of the High Court could persuade itself in agreeing with the submission of the learned counsel for the respondent-writ petitioner that despite this change of cadres and the provision for recruitment on new posts the old advertisement of 5-11-1993 Annexure P-1 seeking to consider the candidature of applicants for erstwhile 23 advertised vacancies in the posts of Assistant Directors (Junior) in the Agricultural Marketing Service of the State of Rajasthan would still be pursued further and recruitment should be effected for these 23 erstwhile vacancies as per the old advertisement. It is easy to visualise that even if such an earlier advertisement of 5- 11-1993 was proceeded with further it would have resulted into a stalemate and an exercise in futility. No appointment could have been given to the selected candidates to the posts of Assistant Directors (Junior) after 1995 amendment of Rules as there were no such posts in the hierarchy of State Service. Consequently it must be held that on account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge…….While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed:20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.25. Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo (2019) 10 SCC 674 observed that a concession on a question of law concerning service rules would not bind the State:11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court.26. The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court.27. The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be allowed. | 1 | 7,645 | 2,730 | ### Instruction:
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account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge……. (emphasis supplied) 23. The contesting respondents submitted that the appellant is estopped from urging that the DACP Scheme is not applicable to the Teaching Cadre at the ESIC since they have taken this stance before the CAT and in its writ petition before the High Court. While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed: 20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it. (emphasis supplied) 24. In Himalayan Coop. Group Housing Society v. Balwan Singh (2015) 7 SCC 373 a three- judge Bench of this Court clarified the law of agency with respect to client-lawyer relationships. The Court held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law or legal conclusions: 32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyers statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the clients instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. (emphasis supplied) 25. Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo (2019) 10 SCC 674 observed that a concession on a question of law concerning service rules would not bind the State: 11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant. The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court. D Conclusion 26. The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court. 27. The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be allowed.
### Response:
1
### Explanation:
Rules.21. In Ashish Kumar v. State of Uttar Pradesh (2018) 3 SCC 55 a two-judge Bench of this Court followed the decision in Malik Mazhar Sultan (supra) in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant recruitment rules and held:27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence….In Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202 a two-judge Bench of this Court held that an earlier advertisement becomes infructuous after a subsequent amendment to the service rules:13. Under these circumstances, therefore, it is difficult to appreciate how the Division Bench of the High Court could persuade itself in agreeing with the submission of the learned counsel for the respondent-writ petitioner that despite this change of cadres and the provision for recruitment on new posts the old advertisement of 5-11-1993 Annexure P-1 seeking to consider the candidature of applicants for erstwhile 23 advertised vacancies in the posts of Assistant Directors (Junior) in the Agricultural Marketing Service of the State of Rajasthan would still be pursued further and recruitment should be effected for these 23 erstwhile vacancies as per the old advertisement. It is easy to visualise that even if such an earlier advertisement of 5- 11-1993 was proceeded with further it would have resulted into a stalemate and an exercise in futility. No appointment could have been given to the selected candidates to the posts of Assistant Directors (Junior) after 1995 amendment of Rules as there were no such posts in the hierarchy of State Service. Consequently it must be held that on account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge…….While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed:20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.25. Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo (2019) 10 SCC 674 observed that a concession on a question of law concerning service rules would not bind the State:11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court.26. The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court.27. The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be allowed.
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Workmen of Tirumala Tirupati Dewasthanams Vs. Management and Another | Krishna Iyer, J.The main issue raised in this appeal turns on a construction of Section 32(5) of the Payment of Bonus Act and its application to the facts of the present case. The Tirumala Tirupathi Devasthanam has a very wide circle of devotees who come from all over the country. The Devasthanam caters to their needs and provides the amenities since pilgrims flock to the shrine. One of those facilities is stated to be offering transport services for pilgrims to come to Tirupathi from distant places. Inevitably the Transport Department is operating under the Devasthanam and employs a large number of transport workers. These workmen raised an industrial dispute making a demand for bonus for the years 1965-1973. The reference was duly made to the Tribunal which considered inter alia the question as to whether Section32 of the Act excluded from the operation of the bonus obligation, the respondent-institution. The plea was upheld and the reference was held to be invalid.2. The Tirumala Tirupathi Devasthanam, a vast and unique religious organisation in the country, is certainly not founded for making profit and attracts people who want to offer worship to Shri Venkateshwara but then the specific question with which we are concerned is whether the transport operation by the administration falls within the category of institutions within the meaning of Section 32(5)(c). Is the Transport Development so merged in and integrated with the Devasthanam as to be incapable of independent identity ? Is the Transport Industry run by the Devasthanam sufficiently spread as to be treated as an institution in itself ? There is no doubt, as the Tribunal has rightly held, that it is an industry but the further question arises whether it is an institution in the context and within the text of the Payment of Bonus Act. This question has not been properly appreciated by the Tribunal. Secondly, assuming that it is an institution, it does not necessarily follow that Section 32 is excluded. On the other hand, there must be proof that the Transport Department (a) is an institution; and (b) established not for the purpose of profit. The Tribunal has not correctly appreciated the import of this latter requirement. It has been found that profits made in some years are ploughed back whatever that may mean. It is also found that the motive for running the industry of transport was to afford special facilities for the pilgrims. These by themselves do not clinch the issue whether the institution has been established not for purposes of profit, nor are we satisfied that merely because in the administrative report of the Devasthanam, there is mention of the transport establishment as a remunerative enterprise, that is decisive of the issue.3. The Tribunal has to decide whether the Transport Department, having regard to the features of its administration, the sources of its finance, the balance-sheet that is drawn up and the disposal of the profits, can be considered to be an institution in itself, whether it has nexus with the Devasthanam or not. The fact that it is run by the Devasthanam, does not keep it out of its being an institution. This aspect has not been considered and must be decided de novo.4. Likewise, merely because it is an institution, the Transport Department does not cease to be one established "Not for purposes of profit", that has got to be made out on its merits. The institution may be designed for profit although it may make or may not make profit. The institutions profits or earnings may be used for other charitable purposes. That also does not determine finally the character of the institution. Was the institution "not one for purposes of profit", motives apart ? If it was one, definitely not for earnings profit, but merely as an ancillary facility for pilgrims to reach and to return, Section 32(2) will exclude the institution. It we may tersely put it, the dominant purpose of the Transport Department will be the decisive factor. | 1[ds]4. Likewise, merely because it is an institution, the Transport Department does not cease to be one established "Not for purposes of profit", that has got to be made out on its merits. The institution may be designed for profit although it may make or may not make profit. The institutions profits or earnings may be used for other charitable purposes. That also does not determine finally the character of the institution. Was the institution "not one for purposes of profit", motives apart ? If it was one, definitely not for earnings profit, but merely as an ancillary facility for pilgrims to reach and to return, Section 32(2) will exclude the institution. It we may tersely put it, the dominant purpose of the Transport Department will be the decisive factor. | 1 | 737 | 156 | ### 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:
Krishna Iyer, J.The main issue raised in this appeal turns on a construction of Section 32(5) of the Payment of Bonus Act and its application to the facts of the present case. The Tirumala Tirupathi Devasthanam has a very wide circle of devotees who come from all over the country. The Devasthanam caters to their needs and provides the amenities since pilgrims flock to the shrine. One of those facilities is stated to be offering transport services for pilgrims to come to Tirupathi from distant places. Inevitably the Transport Department is operating under the Devasthanam and employs a large number of transport workers. These workmen raised an industrial dispute making a demand for bonus for the years 1965-1973. The reference was duly made to the Tribunal which considered inter alia the question as to whether Section32 of the Act excluded from the operation of the bonus obligation, the respondent-institution. The plea was upheld and the reference was held to be invalid.2. The Tirumala Tirupathi Devasthanam, a vast and unique religious organisation in the country, is certainly not founded for making profit and attracts people who want to offer worship to Shri Venkateshwara but then the specific question with which we are concerned is whether the transport operation by the administration falls within the category of institutions within the meaning of Section 32(5)(c). Is the Transport Development so merged in and integrated with the Devasthanam as to be incapable of independent identity ? Is the Transport Industry run by the Devasthanam sufficiently spread as to be treated as an institution in itself ? There is no doubt, as the Tribunal has rightly held, that it is an industry but the further question arises whether it is an institution in the context and within the text of the Payment of Bonus Act. This question has not been properly appreciated by the Tribunal. Secondly, assuming that it is an institution, it does not necessarily follow that Section 32 is excluded. On the other hand, there must be proof that the Transport Department (a) is an institution; and (b) established not for the purpose of profit. The Tribunal has not correctly appreciated the import of this latter requirement. It has been found that profits made in some years are ploughed back whatever that may mean. It is also found that the motive for running the industry of transport was to afford special facilities for the pilgrims. These by themselves do not clinch the issue whether the institution has been established not for purposes of profit, nor are we satisfied that merely because in the administrative report of the Devasthanam, there is mention of the transport establishment as a remunerative enterprise, that is decisive of the issue.3. The Tribunal has to decide whether the Transport Department, having regard to the features of its administration, the sources of its finance, the balance-sheet that is drawn up and the disposal of the profits, can be considered to be an institution in itself, whether it has nexus with the Devasthanam or not. The fact that it is run by the Devasthanam, does not keep it out of its being an institution. This aspect has not been considered and must be decided de novo.4. Likewise, merely because it is an institution, the Transport Department does not cease to be one established "Not for purposes of profit", that has got to be made out on its merits. The institution may be designed for profit although it may make or may not make profit. The institutions profits or earnings may be used for other charitable purposes. That also does not determine finally the character of the institution. Was the institution "not one for purposes of profit", motives apart ? If it was one, definitely not for earnings profit, but merely as an ancillary facility for pilgrims to reach and to return, Section 32(2) will exclude the institution. It we may tersely put it, the dominant purpose of the Transport Department will be the decisive factor.
### Response:
1
### Explanation:
4. Likewise, merely because it is an institution, the Transport Department does not cease to be one established "Not for purposes of profit", that has got to be made out on its merits. The institution may be designed for profit although it may make or may not make profit. The institutions profits or earnings may be used for other charitable purposes. That also does not determine finally the character of the institution. Was the institution "not one for purposes of profit", motives apart ? If it was one, definitely not for earnings profit, but merely as an ancillary facility for pilgrims to reach and to return, Section 32(2) will exclude the institution. It we may tersely put it, the dominant purpose of the Transport Department will be the decisive factor.
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EX SEPOY SURENDRA SINGH YADAV Vs. CHIEF RECORD OFFICER | be reinstated and the proceedings for discharge can be taken.5. The Appellant was reinstated on 27.11.1992 and a show cause notice was issued to him on 27.05.1993 seeking an explanation as to why he should not be discharged from service. There was no response from the Appellant to the show cause notice. The Appellant was discharged from service on 10.07.1993. He filed a Writ Petition in the High Court challenging the order of discharge which was transferred to the Armed Forces Tribunal, Lucknow Bench. The Tribunal dismissed the Transfer Application holding that no ground was made out by the Appellant for setting aside the order of discharge. Dissatisfied with the order of the Armed Forces Tribunal the Appellant has approached this Court.6. The learned counsel for the Appellant submitted that the order of discharge in exercise of the power under Rule 13 (3) T able III (v) is without jurisdiction. He argued that the Appellant cannot be dismissed in exercise of power under Section 20 of the Act after he was exonerated in the Summary Court Martial. He further urged that the order of discharge is vitiated as it amounts to double jeopardy. He relied upon a judgment of this Court in Union of India and Anr. v. Pursushottam (2015) 3 SCC 779. 7. Learned Senior Counsel appearing for the Union of India justified the order of discharge by submitting that exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. He also submitted that the subject matter of the charge-sheet which led to the Summary Court Martial is completely different from the allegations made against the Appellant for his discharge from service. He stated that the order of discharge, essentially, was passed under item 3 T able III, annexed to Rule 13 of the Army Rules, 1954 which was well within the jurisdiction of the authority who has passed the order of discharge.8. It is relevant to reproduce Section 44 of the Act which is as follows:?44. False answers on enrolment. Any person having become subject to this Act who is discovered to have made at the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.?9. As stated above, the initiation of a Summary Court Martial was for an offence under Section 44 of the Army Act. He was finally exonerated by the reviewing authority but discharged from service in exercise of power conferred under Rule 13 of the Army Rules.10. The first submission made by the learned counsel for the Appellant that no proceedings for discharge could have been initiated after he was exonerated in the Summary Court Martial, cannot be accepted. In the judgment relied upon by the Appellant in Union of India and Anr. v. Pursushottam (supra), this Court held that there is no bar for departmental action after exoneration in the Summary Court Martial. In the said judgment reliance was placed on Union of India and Ors. v. Harjeet Singh Sandhu (2001) 5 SCC 593 to conclude that if the decision of the Court Martial is not confirmed, disciplinary action for imposition of a penalty of a dismissal or for that matter discharge, may be resorted to. In Pursushottam?s case (supra), the order of the Summary Court Martial against a Hawaldar in the Corps of Military Police was set aside in review under Section 162 of the Act. This Court was of the opinion that the order of the Reviewing Authority under Section 162 of the Act was vitiated. For the reasons mentioned in the said judgment this Court restored the order of the Summary Court Martial. On the facts of the said case, this Court held that the show cause notice that was issued to the Respondent therein ought to have been issued under Section 20 of the Act instead of Rule 13 (3) T able III (v) of the Army Rules.11. As stated above, the show cause notice that was issued to the Appellant in this case was under Rule 13 (3) T able III (v). Rule 13 specifies the authorities who are empowered to authorize discharge in respect of persons enrolled under the Act who have been attested. The Officers competent to authorize discharge are mentioned. The grounds of discharge as contained in Rule 13 (3) are as follows:?Grounds of discharge. III Persons enrolled under the Act who have been attested.(i) On fulfilling the conditions of his enrolment or having rechecked the stage at which discharged may be enforced. (ii) On completion of a period of army service only, there being non vacancy in the Reserve.(iii) Having been Commanding Officer. Found medically unfit for further service.(iv) At his own request before fulfilling the conditions of his enrolment.(v) All other classes of discharge.?12. The Appellant was charge-sheeted for producing a false certificate to show that he passed matriculation. The proceedings initiated for discharge is on the ground of lack of requisite educational qualification. The charges are not the same. The submission that is made by the Appellant that he cannot be discharged but can only be dismissed or removed under Section 20 (3) cannot be accepted. Though, the Respondents committed an error in referring to Section 20 (3) of the Act, a close scrutiny of the material on record would indicate that this is a case of discharge. We find no error committed by the respondents in exercising power under Rule 13 to discharge the Appellant. As stated earlier, exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. The Appellant does not possess the requisite educational qualifications. He cannot be continued in service. Therefore, he has been rightly discharged from service. | 0[ds]9. As stated above, the initiation of a Summary Court Martial was for an offence under Section 44 of the Army Act. He was finally exonerated by the reviewing authority but discharged from service in exercise of power conferred under Rule 13 of the Army Rules.10. The first submission made by the learned counsel for the Appellant that no proceedings for discharge could have been initiated after he was exonerated in the Summary Court Martial, cannot be accepted.As stated above, the show cause notice that was issued to the Appellant in this case was under Rule 13 (3) T able III (v). Rule 13 specifies the authorities who are empowered to authorize discharge in respect of persons enrolled under the Act who have been attested.The Appellant was charge-sheeted for producing a false certificate to show that he passed matriculation. The proceedings initiated for discharge is on the ground of lack of requisite educational qualification. The charges are not the same. The submission that is made by the Appellant that he cannot be discharged but can only be dismissed or removed under Section 20 (3) cannot be accepted. Though, the Respondents committed an error in referring to Section 20 (3) of the Act, a close scrutiny of the material on record would indicate that this is a case of discharge. We find no error committed by the respondents in exercising power under Rule 13 to discharge the Appellant. As stated earlier, exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. The Appellant does not possess the requisite educational qualifications. He cannot be continued in service. Therefore, he has been rightly discharged from service. | 0 | 1,339 | 316 | ### 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:
be reinstated and the proceedings for discharge can be taken.5. The Appellant was reinstated on 27.11.1992 and a show cause notice was issued to him on 27.05.1993 seeking an explanation as to why he should not be discharged from service. There was no response from the Appellant to the show cause notice. The Appellant was discharged from service on 10.07.1993. He filed a Writ Petition in the High Court challenging the order of discharge which was transferred to the Armed Forces Tribunal, Lucknow Bench. The Tribunal dismissed the Transfer Application holding that no ground was made out by the Appellant for setting aside the order of discharge. Dissatisfied with the order of the Armed Forces Tribunal the Appellant has approached this Court.6. The learned counsel for the Appellant submitted that the order of discharge in exercise of the power under Rule 13 (3) T able III (v) is without jurisdiction. He argued that the Appellant cannot be dismissed in exercise of power under Section 20 of the Act after he was exonerated in the Summary Court Martial. He further urged that the order of discharge is vitiated as it amounts to double jeopardy. He relied upon a judgment of this Court in Union of India and Anr. v. Pursushottam (2015) 3 SCC 779. 7. Learned Senior Counsel appearing for the Union of India justified the order of discharge by submitting that exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. He also submitted that the subject matter of the charge-sheet which led to the Summary Court Martial is completely different from the allegations made against the Appellant for his discharge from service. He stated that the order of discharge, essentially, was passed under item 3 T able III, annexed to Rule 13 of the Army Rules, 1954 which was well within the jurisdiction of the authority who has passed the order of discharge.8. It is relevant to reproduce Section 44 of the Act which is as follows:?44. False answers on enrolment. Any person having become subject to this Act who is discovered to have made at the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.?9. As stated above, the initiation of a Summary Court Martial was for an offence under Section 44 of the Army Act. He was finally exonerated by the reviewing authority but discharged from service in exercise of power conferred under Rule 13 of the Army Rules.10. The first submission made by the learned counsel for the Appellant that no proceedings for discharge could have been initiated after he was exonerated in the Summary Court Martial, cannot be accepted. In the judgment relied upon by the Appellant in Union of India and Anr. v. Pursushottam (supra), this Court held that there is no bar for departmental action after exoneration in the Summary Court Martial. In the said judgment reliance was placed on Union of India and Ors. v. Harjeet Singh Sandhu (2001) 5 SCC 593 to conclude that if the decision of the Court Martial is not confirmed, disciplinary action for imposition of a penalty of a dismissal or for that matter discharge, may be resorted to. In Pursushottam?s case (supra), the order of the Summary Court Martial against a Hawaldar in the Corps of Military Police was set aside in review under Section 162 of the Act. This Court was of the opinion that the order of the Reviewing Authority under Section 162 of the Act was vitiated. For the reasons mentioned in the said judgment this Court restored the order of the Summary Court Martial. On the facts of the said case, this Court held that the show cause notice that was issued to the Respondent therein ought to have been issued under Section 20 of the Act instead of Rule 13 (3) T able III (v) of the Army Rules.11. As stated above, the show cause notice that was issued to the Appellant in this case was under Rule 13 (3) T able III (v). Rule 13 specifies the authorities who are empowered to authorize discharge in respect of persons enrolled under the Act who have been attested. The Officers competent to authorize discharge are mentioned. The grounds of discharge as contained in Rule 13 (3) are as follows:?Grounds of discharge. III Persons enrolled under the Act who have been attested.(i) On fulfilling the conditions of his enrolment or having rechecked the stage at which discharged may be enforced. (ii) On completion of a period of army service only, there being non vacancy in the Reserve.(iii) Having been Commanding Officer. Found medically unfit for further service.(iv) At his own request before fulfilling the conditions of his enrolment.(v) All other classes of discharge.?12. The Appellant was charge-sheeted for producing a false certificate to show that he passed matriculation. The proceedings initiated for discharge is on the ground of lack of requisite educational qualification. The charges are not the same. The submission that is made by the Appellant that he cannot be discharged but can only be dismissed or removed under Section 20 (3) cannot be accepted. Though, the Respondents committed an error in referring to Section 20 (3) of the Act, a close scrutiny of the material on record would indicate that this is a case of discharge. We find no error committed by the respondents in exercising power under Rule 13 to discharge the Appellant. As stated earlier, exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. The Appellant does not possess the requisite educational qualifications. He cannot be continued in service. Therefore, he has been rightly discharged from service.
### Response:
0
### Explanation:
9. As stated above, the initiation of a Summary Court Martial was for an offence under Section 44 of the Army Act. He was finally exonerated by the reviewing authority but discharged from service in exercise of power conferred under Rule 13 of the Army Rules.10. The first submission made by the learned counsel for the Appellant that no proceedings for discharge could have been initiated after he was exonerated in the Summary Court Martial, cannot be accepted.As stated above, the show cause notice that was issued to the Appellant in this case was under Rule 13 (3) T able III (v). Rule 13 specifies the authorities who are empowered to authorize discharge in respect of persons enrolled under the Act who have been attested.The Appellant was charge-sheeted for producing a false certificate to show that he passed matriculation. The proceedings initiated for discharge is on the ground of lack of requisite educational qualification. The charges are not the same. The submission that is made by the Appellant that he cannot be discharged but can only be dismissed or removed under Section 20 (3) cannot be accepted. Though, the Respondents committed an error in referring to Section 20 (3) of the Act, a close scrutiny of the material on record would indicate that this is a case of discharge. We find no error committed by the respondents in exercising power under Rule 13 to discharge the Appellant. As stated earlier, exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. The Appellant does not possess the requisite educational qualifications. He cannot be continued in service. Therefore, he has been rightly discharged from service.
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Osman Fakir Mohammed Divecha Vs. All Akbar Javed Sadakya & Another | so far as Part II is concerned, section 6 (1) provides that this Part shall apply only to premises "let for residence, education, business, trade or storage". As the lease was not for any of the purposes set out in S. 6 (1), Part II of the Act, and therefore, section 18 (1) would obviously have no operation.6. In Mrs. Dossibai N. B Jeejeebhoy v. Khemchand Gorumal, (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) the appellant had taken on lease, as in the present case, an open land and the question was whether, when such land is being leased not to be used for the purpose of residence in its condition of open land but to be used for the purpose of residence after putting up structures thereon, the letting of land can be said to be letting for residence. The leases there mentioned that the lessee will construct buildings suitable for residential, business, industrial or office purpose. It was held that the leases fell under section 6 (1), and therefore, were within the ambit of Part II of the Act, and consequently, the Small Cause Court at Bombay, as the Rent Court under the Act, and not the ordinary civil court, had jurisdiction to try a suit for possession. Thus, the question whether Part II of the Act applies to particular premises or not depends on the purpose for which such premises are leased.7. In the present case no difficulty arises, for, cl. 8 of the lease in clear terms provides that the lessees were to be at liberty at all times and from time to time to construct and erect upon any part of the demised land buildings of every description howsoever. Though the lease was in respect of open land except to the extent thereof on which the appellant had built structures,the purpose for which it was demised clearly was for constructing buildings of any description howsoever and not for constructing buildings for residence, education, business, trade or storage. The land thus demised, though premises within the meaning of S. 5 (8), was not premises "let for residence, education, business, trade or storage" within the meaning of S. 6 (1),and therefore, S. 18 (1) would not apply as was the case in (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) (supra) where the open land was let out for the purpose of putting up structures for residence.8. Mr. Gokhales contention, however, was that S. 6 (1) would apply because the expression "buildings of every description howsoever" would include buildings for residence, and therefore, the lessees were at liberty under cl. (8) of the lease to construct residential buildings also. That may be so, but then the lessees may choose not to put up any structure for any of the purposes set out in S. 6 (1) in which case if Mr. Gokhale were to be right Part II would still apply. That cannot possibly be the meaning of section 6 (1).Properly construed, section 6 (1) must mean that in order that Part II may apply the premises in question must be let out for the purposes of residence etc and then only the leased premises would be subject to and governed by the provisions of Part II. The application of that part cannot have been intended to depend upon what a lessee may do or may not do. It is the purpose of the lease and not any future choice of a lessee which determines the application of Part II. That is the clear and obvious meaning of the words "let for" in S. 6 (1).9. The next argument of Mr. Gokhale was that even though cl. 8 uses the expressions "buildings of every description howsoever", the real purpose for which the lease was taken by the lessees was to construct structures for residence.In support of his argument he relied on cl. 2 (c) of the lease which permits the lessees to take construction loans from prospective tenants of the buildings to be erected by the lessees and urged that since under S. 18 (3) the only construction loans permitted are for financing the construction of residential buildings, the purpose of the lease must necessarily be for erecting residential building or buildings only.This argument also cannot be upheld, firstly, because the operation of cl. 2 (c) relied on by Mr. Gokhale does not deal with nor is concerned with the purpose for which the land was leased, and secondly, because the question of taking construction loans can arise only if the lessees were to decide to put up building or buildings for residential purposes and not otherwise, as S. 18 (3) of the Act permits advances from tenants for constructing such buildings only. Clause 2(c) in the lease was put in the Indenture to provide for such a contingency and as an exception to the covenant against the lessees mortgaging, charging or assigning the demised land and/or the buildings which may be erected thereon, and not for laying down the purpose for which the land was demised. It is, therefore, neither right nor proper to construe the purpose of a lease by depending upon such an exception to a covenant restricting the lessees from mortgaging, charging or assigning the land or the buildings which might be put up thereon. There is, therefore, no reasons to hold that because S. 18 (3) permits construction loans in respect of residential buildings only, it must follow that the purpose of the lease must be held to be one for erecting residential buildings.10. In the view that we take that the leased premises are not premises contemplated by S. 6 (1), and therefore, Part II of the Act cannot apply, the second question decided by the High Court, namely, that the advance amount of Rs. 10,000 was not a payment falling under S. 18 (1) would not arise. For that reason, the third question also which was in the further alternative need not be gone into. | 0[ds]5. The leased premises being land, admittedly not used for agricultural purpose and being situated in the Bombay Suburban District, are clearly premises under S. 5 (8) of the Act. But so far as Part II is concerned, section 6 (1) provides that this Part shall apply only to premises "let for residence, education, business, trade or storage". As the lease was not for any of the purposes set out in S. 6 (1), Part II of the Act, and therefore, section 18 (1) would obviously have nothe question whether Part II of the Act applies to particular premises or not depends on the purpose for which such premises are leased.7. In the present case no difficulty arises, for, cl. 8 of the lease in clear terms provides that the lessees were to be at liberty at all times and from time to time to construct and erect upon any part of the demised land buildings of every description howsoever. Though the lease was in respect of open land except to the extent thereof on which the appellant had built structures,the purpose for which it was demised clearly was for constructing buildings of any description howsoever and not for constructing buildings for residence, education, business, trade or storage. The land thus demised, though premises within the meaning of S. 5 (8), was not premises "let for residence, education, business, trade or storage" within the meaning of S. 6 (1),and therefore, S. 18 (1) would not apply as was the case in (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) (supra) where the open land was let out for the purpose of putting up structures formay be so, but then the lessees may choose not to put up any structure for any of the purposes set out in S. 6 (1) in which case if Mr. Gokhale were to be right Part II would still apply. That cannot possibly be the meaning of section 6 (1).Properly construed, section 6 (1) must mean that in order that Part II may apply the premises in question must be let out for the purposes of residence etc and then only the leased premises would be subject to and governed by the provisions of Part II. The application of that part cannot have been intended to depend upon what a lessee may do or may not do. It is the purpose of the lease and not any future choice of a lessee which determines the application of Part II. That is the clear and obvious meaning of the words "let for" in S. 6argument also cannot be upheld, firstly, because the operation of cl. 2 (c) relied on by Mr. Gokhale does not deal with nor is concerned with the purpose for which the land was leased, and secondly, because the question of taking construction loans can arise only if the lessees were to decide to put up building or buildings for residential purposes and not otherwise, as S. 18 (3) of the Act permits advances from tenants for constructing such buildings only. Clause 2(c) in the lease was put in the Indenture to provide for such a contingency and as an exception to the covenant against the lessees mortgaging, charging or assigning the demised land and/or the buildings which may be erected thereon, and not for laying down the purpose for which the land was demised. It is, therefore, neither right nor proper to construe the purpose of a lease by depending upon such an exception to a covenant restricting the lessees from mortgaging, charging or assigning the land or the buildings which might be put up thereon. There is, therefore, no reasons to hold that because S. 18 (3) permits construction loans in respect of residential buildings only, it must follow that the purpose of the lease must be held to be one for erecting residential buildings.10. In the view that we take that the leased premises are not premises contemplated by S. 6 (1), and therefore, Part II of the Act cannot apply, the second question decided by the High Court, namely, that the advance amount of Rs. 10,000 was not a payment falling under S. 18 (1) would not arise. For that reason, the third question also which was in the further alternative need not be gone into. | 0 | 2,059 | 836 | ### Instruction:
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so far as Part II is concerned, section 6 (1) provides that this Part shall apply only to premises "let for residence, education, business, trade or storage". As the lease was not for any of the purposes set out in S. 6 (1), Part II of the Act, and therefore, section 18 (1) would obviously have no operation.6. In Mrs. Dossibai N. B Jeejeebhoy v. Khemchand Gorumal, (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) the appellant had taken on lease, as in the present case, an open land and the question was whether, when such land is being leased not to be used for the purpose of residence in its condition of open land but to be used for the purpose of residence after putting up structures thereon, the letting of land can be said to be letting for residence. The leases there mentioned that the lessee will construct buildings suitable for residential, business, industrial or office purpose. It was held that the leases fell under section 6 (1), and therefore, were within the ambit of Part II of the Act, and consequently, the Small Cause Court at Bombay, as the Rent Court under the Act, and not the ordinary civil court, had jurisdiction to try a suit for possession. Thus, the question whether Part II of the Act applies to particular premises or not depends on the purpose for which such premises are leased.7. In the present case no difficulty arises, for, cl. 8 of the lease in clear terms provides that the lessees were to be at liberty at all times and from time to time to construct and erect upon any part of the demised land buildings of every description howsoever. Though the lease was in respect of open land except to the extent thereof on which the appellant had built structures,the purpose for which it was demised clearly was for constructing buildings of any description howsoever and not for constructing buildings for residence, education, business, trade or storage. The land thus demised, though premises within the meaning of S. 5 (8), was not premises "let for residence, education, business, trade or storage" within the meaning of S. 6 (1),and therefore, S. 18 (1) would not apply as was the case in (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) (supra) where the open land was let out for the purpose of putting up structures for residence.8. Mr. Gokhales contention, however, was that S. 6 (1) would apply because the expression "buildings of every description howsoever" would include buildings for residence, and therefore, the lessees were at liberty under cl. (8) of the lease to construct residential buildings also. That may be so, but then the lessees may choose not to put up any structure for any of the purposes set out in S. 6 (1) in which case if Mr. Gokhale were to be right Part II would still apply. That cannot possibly be the meaning of section 6 (1).Properly construed, section 6 (1) must mean that in order that Part II may apply the premises in question must be let out for the purposes of residence etc and then only the leased premises would be subject to and governed by the provisions of Part II. The application of that part cannot have been intended to depend upon what a lessee may do or may not do. It is the purpose of the lease and not any future choice of a lessee which determines the application of Part II. That is the clear and obvious meaning of the words "let for" in S. 6 (1).9. The next argument of Mr. Gokhale was that even though cl. 8 uses the expressions "buildings of every description howsoever", the real purpose for which the lease was taken by the lessees was to construct structures for residence.In support of his argument he relied on cl. 2 (c) of the lease which permits the lessees to take construction loans from prospective tenants of the buildings to be erected by the lessees and urged that since under S. 18 (3) the only construction loans permitted are for financing the construction of residential buildings, the purpose of the lease must necessarily be for erecting residential building or buildings only.This argument also cannot be upheld, firstly, because the operation of cl. 2 (c) relied on by Mr. Gokhale does not deal with nor is concerned with the purpose for which the land was leased, and secondly, because the question of taking construction loans can arise only if the lessees were to decide to put up building or buildings for residential purposes and not otherwise, as S. 18 (3) of the Act permits advances from tenants for constructing such buildings only. Clause 2(c) in the lease was put in the Indenture to provide for such a contingency and as an exception to the covenant against the lessees mortgaging, charging or assigning the demised land and/or the buildings which may be erected thereon, and not for laying down the purpose for which the land was demised. It is, therefore, neither right nor proper to construe the purpose of a lease by depending upon such an exception to a covenant restricting the lessees from mortgaging, charging or assigning the land or the buildings which might be put up thereon. There is, therefore, no reasons to hold that because S. 18 (3) permits construction loans in respect of residential buildings only, it must follow that the purpose of the lease must be held to be one for erecting residential buildings.10. In the view that we take that the leased premises are not premises contemplated by S. 6 (1), and therefore, Part II of the Act cannot apply, the second question decided by the High Court, namely, that the advance amount of Rs. 10,000 was not a payment falling under S. 18 (1) would not arise. For that reason, the third question also which was in the further alternative need not be gone into.
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5. The leased premises being land, admittedly not used for agricultural purpose and being situated in the Bombay Suburban District, are clearly premises under S. 5 (8) of the Act. But so far as Part II is concerned, section 6 (1) provides that this Part shall apply only to premises "let for residence, education, business, trade or storage". As the lease was not for any of the purposes set out in S. 6 (1), Part II of the Act, and therefore, section 18 (1) would obviously have nothe question whether Part II of the Act applies to particular premises or not depends on the purpose for which such premises are leased.7. In the present case no difficulty arises, for, cl. 8 of the lease in clear terms provides that the lessees were to be at liberty at all times and from time to time to construct and erect upon any part of the demised land buildings of every description howsoever. Though the lease was in respect of open land except to the extent thereof on which the appellant had built structures,the purpose for which it was demised clearly was for constructing buildings of any description howsoever and not for constructing buildings for residence, education, business, trade or storage. The land thus demised, though premises within the meaning of S. 5 (8), was not premises "let for residence, education, business, trade or storage" within the meaning of S. 6 (1),and therefore, S. 18 (1) would not apply as was the case in (1962) 3 SCR 928 = (AIR 1966 SC 1939 ) (supra) where the open land was let out for the purpose of putting up structures formay be so, but then the lessees may choose not to put up any structure for any of the purposes set out in S. 6 (1) in which case if Mr. Gokhale were to be right Part II would still apply. That cannot possibly be the meaning of section 6 (1).Properly construed, section 6 (1) must mean that in order that Part II may apply the premises in question must be let out for the purposes of residence etc and then only the leased premises would be subject to and governed by the provisions of Part II. The application of that part cannot have been intended to depend upon what a lessee may do or may not do. It is the purpose of the lease and not any future choice of a lessee which determines the application of Part II. That is the clear and obvious meaning of the words "let for" in S. 6argument also cannot be upheld, firstly, because the operation of cl. 2 (c) relied on by Mr. Gokhale does not deal with nor is concerned with the purpose for which the land was leased, and secondly, because the question of taking construction loans can arise only if the lessees were to decide to put up building or buildings for residential purposes and not otherwise, as S. 18 (3) of the Act permits advances from tenants for constructing such buildings only. Clause 2(c) in the lease was put in the Indenture to provide for such a contingency and as an exception to the covenant against the lessees mortgaging, charging or assigning the demised land and/or the buildings which may be erected thereon, and not for laying down the purpose for which the land was demised. It is, therefore, neither right nor proper to construe the purpose of a lease by depending upon such an exception to a covenant restricting the lessees from mortgaging, charging or assigning the land or the buildings which might be put up thereon. There is, therefore, no reasons to hold that because S. 18 (3) permits construction loans in respect of residential buildings only, it must follow that the purpose of the lease must be held to be one for erecting residential buildings.10. In the view that we take that the leased premises are not premises contemplated by S. 6 (1), and therefore, Part II of the Act cannot apply, the second question decided by the High Court, namely, that the advance amount of Rs. 10,000 was not a payment falling under S. 18 (1) would not arise. For that reason, the third question also which was in the further alternative need not be gone into.
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Anil Kumar Gupta Vs. State of U.P | was actually purchased by the appellant himself, through raising a bank loan and in fact it was purchased much prior to the letter alleged to have been written by the victim to her parents. The appellant even got the scooter insured. This vital evidence regarding the ownership of the scooter has been completely ignored by the High Court and arrived at the conclusion as if the appellant demanded scooter from the parents of the victim as a dowry. The evidence available on record does not justify such a conclusion reached by the High Court. The High Court in this regard did not assign any reason as to how and why the conclusion arrived at by the trial court in this regard was not sound and perverse.17. Similarly the High Court, on a very peculiar reasoning ignores the relevant piece of evidence that it is the appellant who took the victim to the hospital on his scooter to save her life. The High Court for no reason characterized the act of appellant taking the victim to the hospital as one of showmanship in order to avoid any suspicion of his involvement in the crime. According to the High Court the move was an anticipatory self-defence. It is difficult to discern as to on what basis the High Court arrived at such a conclusion. The High Court without any reason whatsoever concludes that the appellant took the victim on his scooter to the hospital only in order to show that as if he was innocent. The evidence of the duty doctor and entries in the hospital register in unmistakable terms reveals that it is the appellant who got admitted the victim into the hospital. If it is the appellant who removed the victim to the hospital on his scooter, then the version given by the prosecution (PW-2) that neighbours informed him to the effect that the victim Poonam came out of her house crying and shouting that she has been administered poison by the accused person becomes totally unacceptable. This vital portion of the evidence upon which the High Court relied comes from the statement of PW-2 which is undoubtedly an improvement since he did not state anything to that effect in his statement to the police. The fact remains that no neighbour was examined to justify that the victim Poonam came out of her house running and shouting that accused administered poison to her. The trial court meticulously examined the evidence available on record in this regard and accordingly found that the prosecution story of the victim revealing that she was administered poison was totally unacceptable. There is no reason given by the High Court as to why it did not agree with the findings of the trial court.18. Be it noted that on the same evidence, the High Court did not find any case whatsoever against the other accused but found only the appellant guilty on the sole ground that on that fateful night, it was the appellant who was proximate to the deceased and therefore, it is the appellant who administered poison to the deceased. The factum itself that the deceased and the appellant were together cannot be a ground to conclude that it was the appellant who administered poison to the deceased. The cause of death of the victim undoubtedly is on account of consumption of poison but there are no circumstances available on record based on which one could conclude that it was a case that someone forcibly administered poison.19. In the same manner, the High Court recorded the finding that the appellant is very well versed in manufacturing medicines and knew their property, composition etc. The appellant looks after the accounts of a manufacturing concern. He has no acquaintance with any medical or chemical technology. We fail to appreciate as to the relevance of appellants employment with a manufacturer of medicine has any bearing on his knowledge in manufacture of poison. It sounds very strange that High Court not only presumes that the appellant has not only special knowledge about preparation of poison but it is the appellant who administered poison to the victim20. In our considered opinion, the High Court committed a serious error in arriving at its own conclusions without properly appreciating the findings and conclusions arrived at by the trial Court and the reasons assigned in support of those conclusions and findings. In the absence of any conclusion by the High Court to the effect that "the trial Court misread the evidence and the findings were therefore perverse", no interference was called for. The High Court virtually substituted all the findings and conclusions of the trial court but without assigning any reason whatsoever as to why and how those conclusions of the trial court were not sound or perverse in their nature. The High Court normally does not interfere with the findings of the trial court merely because there is a possibility of taking a different view on the available evidence on record. That is no reason to interfere with the judgment of the trial court.21. We are satisfied that the trial court, for good and cogent reasons, acquitted all the accused including the appellant and it is the High Court which committed error in reversing the well considered judgment of the trial court so far as the appellant is concerned. Be it noted, that on the same evidence the High Court agreed with the trial court to acquit the other accused by refusing to rely on the prosecution story but a different yardstick has been applied so far as the appellant is concerned solely on the ground of his proximity with the victim on that fateful night. That singular circumstance in our considered opinion is not enough to conclude that the appellant forcibly administered the poison to the victim. Even the medical evidence available on record does not support the conclusion. The view taken by the High Court to reverse the order of acquittal is unsustainable both in law and on facts. | 1[ds]13. Therefore, keeping the above principles in mind, we have to first ascertain whether there are any reasons recorded by the High Court in order to observe that the findings of the trial Court are unsustainable. The High Court in its judgment expressed that "the acquittal is wholly unjustified" and that the learned trial Judge failed to make proper analysis of the evidence adduced by the prosecution and other surrounding circumstances. There is no finding recorded as such by the High Court to the effect that the trial Court misread the evidence and its findings therefore were perverse in their entirety. The High Court was mainly impressed by its finding that the suicide note produced on behalf of the defence was found to be fabricated.14. The defence, in its anxiety might have pressed some suicidal note into service which was ultimately found to be not acceptable by the High Court, but the High Court did not consider the rest of the circumstantial evidence that was taken into consideration by the trial Court for acquitting the accused. The High Court has mainly taken one singular circumstance into account, namely, that on the fateful night, the appellant alone was nearest to the victim and therefore, the inference is inescapable that it is he who administered poison to her. In the entire judgment, there is not even a whisper as to how the reasons recorded by the trial Court were perverse or erroneous.15. It appears to us that the High Court very conveniently ignored the exchange of letters between the deceased Poonam and her mother which disclosed cordial relations between the two families. The prosecution did not find any letter by the deceased Poonam in response to her mothers letter when her mothers letters indicated receipt of Poonams letters. There is no explanation forthcoming as to why the prosecution withheld that evidence. The benefit of doubt in this regard may have to go in favour of the appellant.16. The High Court while ignoring the vital evidence available on record regarding the purchase of scooter by appellant himself with his own funds relied upon oral assertion made bythat parents of the victim paid a sum of Rs. 2,000/for replacing the Camera and a further sum of Rs. 5,000/for purchase of the scooter. The Trial Court, on appreciation of evidence available on record found that the scooter was actually purchased by the appellant himself, through raising a bank loan and in fact it was purchased much prior to the letter alleged to have been written by the victim to her parents. The appellant even got the scooter insured. This vital evidence regarding the ownership of the scooter has been completely ignored by the High Court and arrived at the conclusion as if the appellant demanded scooter from the parents of the victim as a dowry. The evidence available on record does not justify such a conclusion reached by the High Court. The High Court in this regard did not assign any reason as to how and why the conclusion arrived at by the trial court in this regard was not sound and perverse.17. Similarly the High Court, on a very peculiar reasoning ignores the relevant piece of evidence that it is the appellant who took the victim to the hospital on his scooter to save her life. The High Court for no reason characterized the act of appellant taking the victim to the hospital as one of showmanship in order to avoid any suspicion of his involvement in the crime. According to the High Court the move was an anticipatoryIt is difficult to discern as to on what basis the High Court arrived at such a conclusion. The High Court without any reason whatsoever concludes that the appellant took the victim on his scooter to the hospital only in order to show that as if he was innocent. The evidence of the duty doctor and entries in the hospital register in unmistakable terms reveals that it is the appellant who got admitted the victim into the hospital. If it is the appellant who removed the victim to the hospital on his scooter, then the version given by the prosecutionthat neighbours informed him to the effect that the victim Poonam came out of her house crying and shouting that she has been administered poison by the accused person becomes totally unacceptable. This vital portion of the evidence upon which the High Court relied comes from the statement ofwhich is undoubtedly an improvement since he did not state anything to that effect in his statement to the police. The fact remains that no neighbour was examined to justify that the victim Poonam came out of her house running and shouting that accused administered poison to her. The trial court meticulously examined the evidence available on record in this regard and accordingly found that the prosecution story of the victim revealing that she was administered poison was totally unacceptable. There is no reason given by the High Court as to why it did not agree with the findings of the trial court.18. Be it noted that on the same evidence, the High Court did not find any case whatsoever against the other accused but found only the appellant guilty on the sole ground that on that fateful night, it was the appellant who was proximate to the deceased and therefore, it is the appellant who administered poison to the deceased. The factum itself that the deceased and the appellant were together cannot be a ground to conclude that it was the appellant who administered poison to the deceased. The cause of death of the victim undoubtedly is on account of consumption of poison but there are no circumstances available on record based on which one could conclude that it was a case that someone forcibly administered poison.19. In the same manner, the High Court recorded the finding that the appellant is very well versed in manufacturing medicines and knew their property, composition etc. The appellant looks after the accounts of a manufacturing concern. He has no acquaintance with any medical or chemical technology. We fail to appreciate as to the relevance of appellants employment with a manufacturer of medicine has any bearing on his knowledge in manufacture of poison. It sounds very strange that High Court not only presumes that the appellant has not only special knowledge about preparation of poison but it is the appellant who administered poison to the victim20. In our considered opinion, the High Court committed a serious error in arriving at its own conclusions without properly appreciating the findings and conclusions arrived at by the trial Court and the reasons assigned in support of those conclusions and findings. In the absence of any conclusion by the High Court to the effect that "the trial Court misread the evidence and the findings were therefore perverse", no interference was called for. The High Court virtually substituted all the findings and conclusions of the trial court but without assigning any reason whatsoever as to why and how those conclusions of the trial court were not sound or perverse in their nature. The High Court normally does not interfere with the findings of the trial court merely because there is a possibility of taking a different view on the available evidence on record. That is no reason to interfere with the judgment of the trial court.21. We are satisfied that the trial court, for good and cogent reasons, acquitted all the accused including the appellant and it is the High Court which committed error in reversing the well considered judgment of the trial court so far as the appellant is concerned. Be it noted, that on the same evidence the High Court agreed with the trial court to acquit the other accused by refusing to rely on the prosecution story but a different yardstick has been applied so far as the appellant is concerned solely on the ground of his proximity with the victim on that fateful night. That singular circumstance in our considered opinion is not enough to conclude that the appellant forcibly administered the poison to the victim. Even the medical evidence available on record does not support the conclusion. The view taken by the High Court to reverse the order of acquittal is unsustainable both in law and on facts. | 1 | 4,089 | 1,466 | ### Instruction:
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was actually purchased by the appellant himself, through raising a bank loan and in fact it was purchased much prior to the letter alleged to have been written by the victim to her parents. The appellant even got the scooter insured. This vital evidence regarding the ownership of the scooter has been completely ignored by the High Court and arrived at the conclusion as if the appellant demanded scooter from the parents of the victim as a dowry. The evidence available on record does not justify such a conclusion reached by the High Court. The High Court in this regard did not assign any reason as to how and why the conclusion arrived at by the trial court in this regard was not sound and perverse.17. Similarly the High Court, on a very peculiar reasoning ignores the relevant piece of evidence that it is the appellant who took the victim to the hospital on his scooter to save her life. The High Court for no reason characterized the act of appellant taking the victim to the hospital as one of showmanship in order to avoid any suspicion of his involvement in the crime. According to the High Court the move was an anticipatory self-defence. It is difficult to discern as to on what basis the High Court arrived at such a conclusion. The High Court without any reason whatsoever concludes that the appellant took the victim on his scooter to the hospital only in order to show that as if he was innocent. The evidence of the duty doctor and entries in the hospital register in unmistakable terms reveals that it is the appellant who got admitted the victim into the hospital. If it is the appellant who removed the victim to the hospital on his scooter, then the version given by the prosecution (PW-2) that neighbours informed him to the effect that the victim Poonam came out of her house crying and shouting that she has been administered poison by the accused person becomes totally unacceptable. This vital portion of the evidence upon which the High Court relied comes from the statement of PW-2 which is undoubtedly an improvement since he did not state anything to that effect in his statement to the police. The fact remains that no neighbour was examined to justify that the victim Poonam came out of her house running and shouting that accused administered poison to her. The trial court meticulously examined the evidence available on record in this regard and accordingly found that the prosecution story of the victim revealing that she was administered poison was totally unacceptable. There is no reason given by the High Court as to why it did not agree with the findings of the trial court.18. Be it noted that on the same evidence, the High Court did not find any case whatsoever against the other accused but found only the appellant guilty on the sole ground that on that fateful night, it was the appellant who was proximate to the deceased and therefore, it is the appellant who administered poison to the deceased. The factum itself that the deceased and the appellant were together cannot be a ground to conclude that it was the appellant who administered poison to the deceased. The cause of death of the victim undoubtedly is on account of consumption of poison but there are no circumstances available on record based on which one could conclude that it was a case that someone forcibly administered poison.19. In the same manner, the High Court recorded the finding that the appellant is very well versed in manufacturing medicines and knew their property, composition etc. The appellant looks after the accounts of a manufacturing concern. He has no acquaintance with any medical or chemical technology. We fail to appreciate as to the relevance of appellants employment with a manufacturer of medicine has any bearing on his knowledge in manufacture of poison. It sounds very strange that High Court not only presumes that the appellant has not only special knowledge about preparation of poison but it is the appellant who administered poison to the victim20. In our considered opinion, the High Court committed a serious error in arriving at its own conclusions without properly appreciating the findings and conclusions arrived at by the trial Court and the reasons assigned in support of those conclusions and findings. In the absence of any conclusion by the High Court to the effect that "the trial Court misread the evidence and the findings were therefore perverse", no interference was called for. The High Court virtually substituted all the findings and conclusions of the trial court but without assigning any reason whatsoever as to why and how those conclusions of the trial court were not sound or perverse in their nature. The High Court normally does not interfere with the findings of the trial court merely because there is a possibility of taking a different view on the available evidence on record. That is no reason to interfere with the judgment of the trial court.21. We are satisfied that the trial court, for good and cogent reasons, acquitted all the accused including the appellant and it is the High Court which committed error in reversing the well considered judgment of the trial court so far as the appellant is concerned. Be it noted, that on the same evidence the High Court agreed with the trial court to acquit the other accused by refusing to rely on the prosecution story but a different yardstick has been applied so far as the appellant is concerned solely on the ground of his proximity with the victim on that fateful night. That singular circumstance in our considered opinion is not enough to conclude that the appellant forcibly administered the poison to the victim. Even the medical evidence available on record does not support the conclusion. The view taken by the High Court to reverse the order of acquittal is unsustainable both in law and on facts.
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on record found that the scooter was actually purchased by the appellant himself, through raising a bank loan and in fact it was purchased much prior to the letter alleged to have been written by the victim to her parents. The appellant even got the scooter insured. This vital evidence regarding the ownership of the scooter has been completely ignored by the High Court and arrived at the conclusion as if the appellant demanded scooter from the parents of the victim as a dowry. The evidence available on record does not justify such a conclusion reached by the High Court. The High Court in this regard did not assign any reason as to how and why the conclusion arrived at by the trial court in this regard was not sound and perverse.17. Similarly the High Court, on a very peculiar reasoning ignores the relevant piece of evidence that it is the appellant who took the victim to the hospital on his scooter to save her life. The High Court for no reason characterized the act of appellant taking the victim to the hospital as one of showmanship in order to avoid any suspicion of his involvement in the crime. According to the High Court the move was an anticipatoryIt is difficult to discern as to on what basis the High Court arrived at such a conclusion. The High Court without any reason whatsoever concludes that the appellant took the victim on his scooter to the hospital only in order to show that as if he was innocent. The evidence of the duty doctor and entries in the hospital register in unmistakable terms reveals that it is the appellant who got admitted the victim into the hospital. If it is the appellant who removed the victim to the hospital on his scooter, then the version given by the prosecutionthat neighbours informed him to the effect that the victim Poonam came out of her house crying and shouting that she has been administered poison by the accused person becomes totally unacceptable. This vital portion of the evidence upon which the High Court relied comes from the statement ofwhich is undoubtedly an improvement since he did not state anything to that effect in his statement to the police. The fact remains that no neighbour was examined to justify that the victim Poonam came out of her house running and shouting that accused administered poison to her. The trial court meticulously examined the evidence available on record in this regard and accordingly found that the prosecution story of the victim revealing that she was administered poison was totally unacceptable. There is no reason given by the High Court as to why it did not agree with the findings of the trial court.18. Be it noted that on the same evidence, the High Court did not find any case whatsoever against the other accused but found only the appellant guilty on the sole ground that on that fateful night, it was the appellant who was proximate to the deceased and therefore, it is the appellant who administered poison to the deceased. The factum itself that the deceased and the appellant were together cannot be a ground to conclude that it was the appellant who administered poison to the deceased. The cause of death of the victim undoubtedly is on account of consumption of poison but there are no circumstances available on record based on which one could conclude that it was a case that someone forcibly administered poison.19. In the same manner, the High Court recorded the finding that the appellant is very well versed in manufacturing medicines and knew their property, composition etc. The appellant looks after the accounts of a manufacturing concern. He has no acquaintance with any medical or chemical technology. We fail to appreciate as to the relevance of appellants employment with a manufacturer of medicine has any bearing on his knowledge in manufacture of poison. It sounds very strange that High Court not only presumes that the appellant has not only special knowledge about preparation of poison but it is the appellant who administered poison to the victim20. In our considered opinion, the High Court committed a serious error in arriving at its own conclusions without properly appreciating the findings and conclusions arrived at by the trial Court and the reasons assigned in support of those conclusions and findings. In the absence of any conclusion by the High Court to the effect that "the trial Court misread the evidence and the findings were therefore perverse", no interference was called for. The High Court virtually substituted all the findings and conclusions of the trial court but without assigning any reason whatsoever as to why and how those conclusions of the trial court were not sound or perverse in their nature. The High Court normally does not interfere with the findings of the trial court merely because there is a possibility of taking a different view on the available evidence on record. That is no reason to interfere with the judgment of the trial court.21. We are satisfied that the trial court, for good and cogent reasons, acquitted all the accused including the appellant and it is the High Court which committed error in reversing the well considered judgment of the trial court so far as the appellant is concerned. Be it noted, that on the same evidence the High Court agreed with the trial court to acquit the other accused by refusing to rely on the prosecution story but a different yardstick has been applied so far as the appellant is concerned solely on the ground of his proximity with the victim on that fateful night. That singular circumstance in our considered opinion is not enough to conclude that the appellant forcibly administered the poison to the victim. Even the medical evidence available on record does not support the conclusion. The view taken by the High Court to reverse the order of acquittal is unsustainable both in law and on facts.
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State Bank of Patiala, Patiala Vs. Commissioner of Income Tax, Patiala | was reduced from the value of the assets. It was ;not the Revenues case that the provision for bad and doubtful debts provided was less that the amount reasonably necessary to be provided in respect of bad and doubtful debts, then it constituted a "reserve". It is not correct to state that by the very nomenclature, this was not a reserve. The true nature of the transaction has to be examined." (emphasis supplied)And again at p. 748 the Court concluded, thus:- "It may be mentioned that where the liability has actually or is anticipated leqitimately by the assessee though the quantum of the liability has not been determined, a fund to meet such present liab ility cannot be treated as "reserves". A fund, however, created for payment of a liability which had not alreads arisen or fallen due but is only a provision with regard to the sum that might become liable to be paid is "other reserves " within the meaning of rule 1 of the Second Schedule and should be taken into account in computing the capital of the company for the purpose of the Companies (Profits) Surtax Act, 1964." * (emphasis supplied) 12. A fair reading of the above decisions would go to show that if the transfer of amount is made ad hoc, when there is no known or anticipated liability, such fund will only be treated as reserve. In this case, substantial amounts were set apart as reserves No amount of bad debt was actually written off or adjusted against the amount claimed as reserves. No claim for any deduction by way of bad debts were made during the relevant assessment years. The assessee never appropriated any amount against any bad and doubtful debts. The amounts throughout remained in the account of the assessee by way of capital and the assessee treated the said amounts as "reserves" and not as "provisions" designed to meet liability, contingency, commitment or diminution in the value of assets known to exist at the relevant dates of balance sheets. These facts have been found by the Tribunal. On the facts, the amount set apart as re serves cannot be said to be so earmarked, when ans liability has actually arisen or was anticipated by the assessee. It cannot be said either, that the amounts set apart out of the profits were designed to meet any known liability, that exiisted at the date of the balance-sheet. Tested in the light of the decisions of this Court, referred to hereinabove, it appears to us, that the amounts set apart towards bad and doubtful debts in these cases are "reserves" qualifying for appropriate relief under rule l(xi)(b) of the First Schedule and rule 1(iii) of the Second Schedule of the Act. 13. We are afraid that the High Court has grossly misunderstood the following observations of this Court contained in Commisioner of Income-Tax vs. Saran Engineering Co. Ltd. at p. 748. "It may be mentioned that where the liability has actually arisen or is anticipated leigitimately by the assessee though the quantum of the liability has not be en dstermined, a fund to meet such present liability cannot be treated as "reserves"." (emphasis supplied) 14. The High Court has taken the view that the "fund created or a sum of money set apart to meet an y liability which the assessee "can reasonably and legitimately anticipate " on the date of preparation of the balance sheet, is the same, as in a case "where the liability has actually arisen", (a present known liability) and the fund to meet such liability cannot be treated as reserve". In the view of the High Court, since the assessee is a banking company, it would be "reasonable and leqitimate to assume" that in the course of its business, "it is bound to have" bad and doubtful debts fo r which "it may", in anticipation, make a provision in the balance sheet by having a separate fund or an account to meet such anticipated liability We are afraid that the aforesaid assumption is totally unjustified and proceeds on mere surmises and conjectures. This is not a case, when at the time fund is earmarked, there is a known liability one which has either arisen or anticipated legitimately, by the assessee - and the fund to meet such eventuality cannot be treated as "reserves". Th e observations of this Court that the liability should be one "which has actually arisen or is anticipated leqitimately by the assessee", cannot be extended to hold, that in the case of an assessee carrying on banking business, it is "bound" or "can reasonably anticipate" on the date of the preparation of balance sheet "bad and doubtful debts", for which "it ought", in anticipation, make a provision and such provision for anticipated liability should be equafied with known and existing liability and should be construed as a provision.The question in such cases, is whether the liability was "known" or "anticipated" on the date when the balance sheet was prepared. The question is not whether the assessee "can anticipate" or "reasonably anticipate" on the date when the balance sheet was prepared about "the bad and doubtful debts". The High Court was in error in surmising that the assessee being a banking company is bound to have bad and doubtful debt s. It need not necessarily be so. It is not bound to anticipate on the date of preparation of balance sheet that all or any of its debts "are bound to be bad and doubtful". It all depends upon facts and circumstances. We are of the view that the High Court misunderstood the scope of the observations in Saran Engineering Co.s case (supra) and surmised that the observations quoted at page 748 wail even cover cases, where the liability was not factually anticipated on the date of the preparation of the balance sheet, but also will apply to cases, where the company "ought and can" anticipate on the date of preparation of the balance sheet. | 1[ds]12. A fair reading of the above decisions would go to show that if the transfer of amount is made ad hoc, when there is no known or anticipated liability, such fund will only be treated as reserve. In this case, substantial amounts were set apart as reserves No amount of bad debt was actually written off or adjusted against the amount claimed as reserves. No claim for any deduction by way of bad debts were made during the relevant assessment years. The assessee never appropriated any amount against any bad and doubtful debts. The amounts throughout remained in the account of the assessee by way of capital and the assessee treated the said amounts as "reserves" and not as "provisions" designed to meet liability, contingency, commitment or diminution in the value of assets known to exist at the relevant dates of balance sheets. These facts have been found by the Tribunal. On the facts, the amount set apart as re serves cannot be said to be so earmarked, when ans liability has actually arisen or was anticipated by the assessee. It cannot be said either, that the amounts set apart out of the profits were designed to meet any known liability, that exiisted at the date of the balance-sheet. Tested in the light of the decisions of this Court, referred to hereinabove, it appears to us, that the amounts set apart towards bad and doubtful debts in these cases are "reserves" qualifying for appropriate relief under rule l(xi)(b) of the First Schedule and rule 1(iii) of the Second Schedule of the Act13. We are afraid that the High Court has grossly misunderstood the following observations of this Court contained in Commisioner of Income-Tax vs. Saran Engineering Co. Ltd. at p. 74814. The High Court has taken the view that the "fund created or a sum of money set apart to meet an y liability which the assessee "can reasonably and legitimately anticipate " on the date of preparation of the balance sheet, is the same, as in a case "where the liability has actually arisen", (a present known liability) and the fund to meet such liability cannot be treated as reserve". In the view of the High Court, since the assessee is a banking company, it would be "reasonable and leqitimate to assume" that in the course of its business, "it is bound to have" bad and doubtful debts fo r which "it may", in anticipation, make a provision in the balance sheet by having a separate fund or an account to meet such anticipated liability We are afraid that the aforesaid assumption is totally unjustified and proceeds on mere surmises and conjectures. This is not a case, when at the time fund is earmarked, there is a known liability one which has either arisen or anticipated legitimately, by the assessee - and the fund to meet such eventuality cannot be treated as "reserves". Th e observations of this Court that the liability should be one "which has actually arisen or is anticipated leqitimately by the assessee", cannot be extended to hold, that in the case of an assessee carrying on banking business, it is "bound" or "can reasonably anticipate" on the date of the preparation of balance sheet "bad and doubtful debts", for which "it ought", in anticipation, make a provision and such provision for anticipated liability should be equafied with known and existing liability and should be construed as a provision.The question in such cases, is whether the liability was "known" or "anticipated" on the date when the balance sheet was prepared. The question is not whether the assessee "can anticipate" or "reasonably anticipate" on the date when the balance sheet was prepared about "the bad and doubtful debts". The High Court was in error in surmising that the assessee being a banking company is bound to have bad and doubtful debt s. It need not necessarily be so. It is not bound to anticipate on the date of preparation of balance sheet that all or any of its debts "are bound to be bad and doubtful". It all depends upon facts and circumstances. We are of the view that the High Court misunderstood the scope of the observations in Saran Engineering Co.s case (supra) and surmised that the observations quoted at page 748 wail even cover cases, where the liability was not factually anticipated on the date of the preparation of the balance sheet, but also will apply to cases, where the company "ought and can" anticipate on the date of preparation of the balance sheet | 1 | 5,734 | 877 | ### 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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was reduced from the value of the assets. It was ;not the Revenues case that the provision for bad and doubtful debts provided was less that the amount reasonably necessary to be provided in respect of bad and doubtful debts, then it constituted a "reserve". It is not correct to state that by the very nomenclature, this was not a reserve. The true nature of the transaction has to be examined." (emphasis supplied)And again at p. 748 the Court concluded, thus:- "It may be mentioned that where the liability has actually or is anticipated leqitimately by the assessee though the quantum of the liability has not been determined, a fund to meet such present liab ility cannot be treated as "reserves". A fund, however, created for payment of a liability which had not alreads arisen or fallen due but is only a provision with regard to the sum that might become liable to be paid is "other reserves " within the meaning of rule 1 of the Second Schedule and should be taken into account in computing the capital of the company for the purpose of the Companies (Profits) Surtax Act, 1964." * (emphasis supplied) 12. A fair reading of the above decisions would go to show that if the transfer of amount is made ad hoc, when there is no known or anticipated liability, such fund will only be treated as reserve. In this case, substantial amounts were set apart as reserves No amount of bad debt was actually written off or adjusted against the amount claimed as reserves. No claim for any deduction by way of bad debts were made during the relevant assessment years. The assessee never appropriated any amount against any bad and doubtful debts. The amounts throughout remained in the account of the assessee by way of capital and the assessee treated the said amounts as "reserves" and not as "provisions" designed to meet liability, contingency, commitment or diminution in the value of assets known to exist at the relevant dates of balance sheets. These facts have been found by the Tribunal. On the facts, the amount set apart as re serves cannot be said to be so earmarked, when ans liability has actually arisen or was anticipated by the assessee. It cannot be said either, that the amounts set apart out of the profits were designed to meet any known liability, that exiisted at the date of the balance-sheet. Tested in the light of the decisions of this Court, referred to hereinabove, it appears to us, that the amounts set apart towards bad and doubtful debts in these cases are "reserves" qualifying for appropriate relief under rule l(xi)(b) of the First Schedule and rule 1(iii) of the Second Schedule of the Act. 13. We are afraid that the High Court has grossly misunderstood the following observations of this Court contained in Commisioner of Income-Tax vs. Saran Engineering Co. Ltd. at p. 748. "It may be mentioned that where the liability has actually arisen or is anticipated leigitimately by the assessee though the quantum of the liability has not be en dstermined, a fund to meet such present liability cannot be treated as "reserves"." (emphasis supplied) 14. The High Court has taken the view that the "fund created or a sum of money set apart to meet an y liability which the assessee "can reasonably and legitimately anticipate " on the date of preparation of the balance sheet, is the same, as in a case "where the liability has actually arisen", (a present known liability) and the fund to meet such liability cannot be treated as reserve". In the view of the High Court, since the assessee is a banking company, it would be "reasonable and leqitimate to assume" that in the course of its business, "it is bound to have" bad and doubtful debts fo r which "it may", in anticipation, make a provision in the balance sheet by having a separate fund or an account to meet such anticipated liability We are afraid that the aforesaid assumption is totally unjustified and proceeds on mere surmises and conjectures. This is not a case, when at the time fund is earmarked, there is a known liability one which has either arisen or anticipated legitimately, by the assessee - and the fund to meet such eventuality cannot be treated as "reserves". Th e observations of this Court that the liability should be one "which has actually arisen or is anticipated leqitimately by the assessee", cannot be extended to hold, that in the case of an assessee carrying on banking business, it is "bound" or "can reasonably anticipate" on the date of the preparation of balance sheet "bad and doubtful debts", for which "it ought", in anticipation, make a provision and such provision for anticipated liability should be equafied with known and existing liability and should be construed as a provision.The question in such cases, is whether the liability was "known" or "anticipated" on the date when the balance sheet was prepared. The question is not whether the assessee "can anticipate" or "reasonably anticipate" on the date when the balance sheet was prepared about "the bad and doubtful debts". The High Court was in error in surmising that the assessee being a banking company is bound to have bad and doubtful debt s. It need not necessarily be so. It is not bound to anticipate on the date of preparation of balance sheet that all or any of its debts "are bound to be bad and doubtful". It all depends upon facts and circumstances. We are of the view that the High Court misunderstood the scope of the observations in Saran Engineering Co.s case (supra) and surmised that the observations quoted at page 748 wail even cover cases, where the liability was not factually anticipated on the date of the preparation of the balance sheet, but also will apply to cases, where the company "ought and can" anticipate on the date of preparation of the balance sheet.
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12. A fair reading of the above decisions would go to show that if the transfer of amount is made ad hoc, when there is no known or anticipated liability, such fund will only be treated as reserve. In this case, substantial amounts were set apart as reserves No amount of bad debt was actually written off or adjusted against the amount claimed as reserves. No claim for any deduction by way of bad debts were made during the relevant assessment years. The assessee never appropriated any amount against any bad and doubtful debts. The amounts throughout remained in the account of the assessee by way of capital and the assessee treated the said amounts as "reserves" and not as "provisions" designed to meet liability, contingency, commitment or diminution in the value of assets known to exist at the relevant dates of balance sheets. These facts have been found by the Tribunal. On the facts, the amount set apart as re serves cannot be said to be so earmarked, when ans liability has actually arisen or was anticipated by the assessee. It cannot be said either, that the amounts set apart out of the profits were designed to meet any known liability, that exiisted at the date of the balance-sheet. Tested in the light of the decisions of this Court, referred to hereinabove, it appears to us, that the amounts set apart towards bad and doubtful debts in these cases are "reserves" qualifying for appropriate relief under rule l(xi)(b) of the First Schedule and rule 1(iii) of the Second Schedule of the Act13. We are afraid that the High Court has grossly misunderstood the following observations of this Court contained in Commisioner of Income-Tax vs. Saran Engineering Co. Ltd. at p. 74814. The High Court has taken the view that the "fund created or a sum of money set apart to meet an y liability which the assessee "can reasonably and legitimately anticipate " on the date of preparation of the balance sheet, is the same, as in a case "where the liability has actually arisen", (a present known liability) and the fund to meet such liability cannot be treated as reserve". In the view of the High Court, since the assessee is a banking company, it would be "reasonable and leqitimate to assume" that in the course of its business, "it is bound to have" bad and doubtful debts fo r which "it may", in anticipation, make a provision in the balance sheet by having a separate fund or an account to meet such anticipated liability We are afraid that the aforesaid assumption is totally unjustified and proceeds on mere surmises and conjectures. This is not a case, when at the time fund is earmarked, there is a known liability one which has either arisen or anticipated legitimately, by the assessee - and the fund to meet such eventuality cannot be treated as "reserves". Th e observations of this Court that the liability should be one "which has actually arisen or is anticipated leqitimately by the assessee", cannot be extended to hold, that in the case of an assessee carrying on banking business, it is "bound" or "can reasonably anticipate" on the date of the preparation of balance sheet "bad and doubtful debts", for which "it ought", in anticipation, make a provision and such provision for anticipated liability should be equafied with known and existing liability and should be construed as a provision.The question in such cases, is whether the liability was "known" or "anticipated" on the date when the balance sheet was prepared. The question is not whether the assessee "can anticipate" or "reasonably anticipate" on the date when the balance sheet was prepared about "the bad and doubtful debts". The High Court was in error in surmising that the assessee being a banking company is bound to have bad and doubtful debt s. It need not necessarily be so. It is not bound to anticipate on the date of preparation of balance sheet that all or any of its debts "are bound to be bad and doubtful". It all depends upon facts and circumstances. We are of the view that the High Court misunderstood the scope of the observations in Saran Engineering Co.s case (supra) and surmised that the observations quoted at page 748 wail even cover cases, where the liability was not factually anticipated on the date of the preparation of the balance sheet, but also will apply to cases, where the company "ought and can" anticipate on the date of preparation of the balance sheet
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Tara Chand Vs. Gram Panchayat Jhupa Khurd | an order is passed, but such expression would include, even a third party giving reasons for its objections to an order and, hence, seeking appropriate relief in the matter. 14. A similar view was re-iterated in Balkrishna Chhaganlal Soni v. State of West Bengal, AIR 1974 SC 120 , by this Court, interpreting the provisions of Sections 107 and 135 (b) of the Customs Act, 1962, observing that the words, ‘any person’ as contained in Section 107 cannot be given a restricted meaning so as to exclude from their ambit, persons who may subsequently be put up for trial. (See also: The Trustees of the Port of Bombay v. The Premier Automobiles Ltd., AIR 1981 SC 1982 ). 15. The instant case is required to be examined in light of the aforesaid statutory provisions and settled legal propositions. This Court in Puran & Ors. v. Gram Panchayat, Faridabad, (2006) 2 SCC 433 , dealt with an identical case and examined most of the statutory provisions involved in this case. The court held that Section 4(3)(ii) of the Act, 1961 would be attracted only if the following three conditions are satisfied: i) The person must be cultivating land which is part of the shamilat deh of a village; ii) He should be cultivating such land for a period of 12 years immediately preceding the commencement of the Act; and iii) He should be cultivating such land without payment of rent or payment of charges in excess of the land revenue and cess. While dealing with the provisions of Section 8 of the Tenancy Act, the court held that nothing contained in Sections 5 to 7, shall preclude any person from establishing a right of occupancy on any ground other than the grounds that have been specified in these sections. The contention of the appellants therein, that their right of occupancy was based on a ground other than the ones mentioned in Section 5 of the Tenancy Act, was based on Section 3(a) of the Act, 1952. However, while dealing with the same, the Court held as under: “Section 3 of the Act relates to vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords. It is evident therefrom that the right, title and interest shall be deemed to vest only in an “occupancy tenant”. Occupancy tenant is defined under Section 2(f) as meaning a tenant who, immediately before the commencement of the Proprietary Rights Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors-in-interest of an occupancy tenant. Admittedly, neither the appellants nor their predecessors were recorded as occupancy tenants in the revenue records immediately before the commencement of the Proprietary Rights Act, nor did they obtain a right of occupancy in respect of the said land either by agreement with the landlord or through a court of competent jurisdiction or otherwise after the commencement of the Act. The appellants, therefore, do not answer the definition of “occupancy tenant” under the Proprietary Rights Act.Consequently, they cannot derive any benefit under Section 3 of the said Act.If Section 3 of the Proprietary Rights Act is inapplicable, the question that remains for consideration is whether they are entitled to the relief sought merely because the names of Sarjeet and Jivan Lal (father of Appellants 1 to 3 and father of Appellants 4 and 5 respectively) were shown as cultivating the lands for some years from 1966-67. To get excluded from the vesting under Section 4(1) of the Common Lands Act, by relying on Section 4(3)(ii), the appellants should prove that they and their ancestors were cultivating such land for a period of at least 12 years prior to the commencement of the Common Lands Act….”. 16. If the aforesaid test laid down by this Court, is applied to the case at hand, then undoubtedly, all the conditions specified therein have been satisfied by the appellants, and their case is also fully supported by the Gram Panchayat. The contents of its counter affidavit filed before this Court, read: “It is, however, not denied that the petitioners have been in cultivating possession of the lands as per entries in the revenue records from the time of their forefathers for the past over seventy years or so and paying nominal rent to the Gram Panchayat from time to time and when the Panchayat refused to take rent the same was deposited in the court. Their possession has remained uninterrupted. Though the possession has been unauthorised, the Panchayat never admitted the petitioners as its tenants.” 17. In view of the above, the appellants may have a valid case. But in the said case, the provisions of Section 10 of the Tenancy Act, not attracted and thus, the facts herein become distinguishable. However, the High Court found them non-suited on the anvil of Section 10 of the Tenancy Act, observing that the expression ‘any person’, contained in Section 8, does not include a joint-owner (hisedar). It has been admitted by the parties that the appellants and their ancestors were hisedars/joint owners/co-sharers in the shamilat deh from a period prior to even 1935-36. The pleadings of the appellants, in fact, begin with such admission by them.18. Provisions of Section 10 of the Tenancy Act put a complete embargo on a hisedar/joint-owner to claim occupancy rights. There is no agreement between the appellants and Gram Panchyat creating any tenancy in their favour. Granting the relief to the appellants would amount to ignoring the existence of Section 10 itself and it would be against all norms of interpretation which requires that statutory provisions must be interpreted in such a manner as not to render any of its provision otiose unless there are compelling reasons for the court to resort to that extreme contingent. | 0[ds]the said case, the provisions of Section 10 of the Tenancy Act, not attracted and thus, the facts herein become distinguishable. However, the High Court found them non-suited on the anvil of Section 10 of the Tenancy Act, observing that the expression ‘anycontained in Section 8, does not include a joint-owner (hisedar). It has been admitted by the parties that the appellants and their ancestors were hisedars/joint owners/co-sharers in the shamilat deh from a period prior to even 1935-36. The pleadings of the appellants, in fact, begin with such admission by them.18. Provisions of Section 10 of the Tenancy Act put a complete embargo on a hisedar/joint-owner to claim occupancy rights. There is no agreement between the appellants and Gram Panchyat creating any tenancy in their favour. Granting the relief to the appellants would amount to ignoring the existence of Section 10 itself and it would be against all norms of interpretation which requires that statutory provisions must be interpreted in such a manner as not to render any of its provision otiose unless there are compelling reasons for the court to resort to that extreme contingent. | 0 | 4,718 | 209 | ### 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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an order is passed, but such expression would include, even a third party giving reasons for its objections to an order and, hence, seeking appropriate relief in the matter. 14. A similar view was re-iterated in Balkrishna Chhaganlal Soni v. State of West Bengal, AIR 1974 SC 120 , by this Court, interpreting the provisions of Sections 107 and 135 (b) of the Customs Act, 1962, observing that the words, ‘any person’ as contained in Section 107 cannot be given a restricted meaning so as to exclude from their ambit, persons who may subsequently be put up for trial. (See also: The Trustees of the Port of Bombay v. The Premier Automobiles Ltd., AIR 1981 SC 1982 ). 15. The instant case is required to be examined in light of the aforesaid statutory provisions and settled legal propositions. This Court in Puran & Ors. v. Gram Panchayat, Faridabad, (2006) 2 SCC 433 , dealt with an identical case and examined most of the statutory provisions involved in this case. The court held that Section 4(3)(ii) of the Act, 1961 would be attracted only if the following three conditions are satisfied: i) The person must be cultivating land which is part of the shamilat deh of a village; ii) He should be cultivating such land for a period of 12 years immediately preceding the commencement of the Act; and iii) He should be cultivating such land without payment of rent or payment of charges in excess of the land revenue and cess. While dealing with the provisions of Section 8 of the Tenancy Act, the court held that nothing contained in Sections 5 to 7, shall preclude any person from establishing a right of occupancy on any ground other than the grounds that have been specified in these sections. The contention of the appellants therein, that their right of occupancy was based on a ground other than the ones mentioned in Section 5 of the Tenancy Act, was based on Section 3(a) of the Act, 1952. However, while dealing with the same, the Court held as under: “Section 3 of the Act relates to vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords. It is evident therefrom that the right, title and interest shall be deemed to vest only in an “occupancy tenant”. Occupancy tenant is defined under Section 2(f) as meaning a tenant who, immediately before the commencement of the Proprietary Rights Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors-in-interest of an occupancy tenant. Admittedly, neither the appellants nor their predecessors were recorded as occupancy tenants in the revenue records immediately before the commencement of the Proprietary Rights Act, nor did they obtain a right of occupancy in respect of the said land either by agreement with the landlord or through a court of competent jurisdiction or otherwise after the commencement of the Act. The appellants, therefore, do not answer the definition of “occupancy tenant” under the Proprietary Rights Act.Consequently, they cannot derive any benefit under Section 3 of the said Act.If Section 3 of the Proprietary Rights Act is inapplicable, the question that remains for consideration is whether they are entitled to the relief sought merely because the names of Sarjeet and Jivan Lal (father of Appellants 1 to 3 and father of Appellants 4 and 5 respectively) were shown as cultivating the lands for some years from 1966-67. To get excluded from the vesting under Section 4(1) of the Common Lands Act, by relying on Section 4(3)(ii), the appellants should prove that they and their ancestors were cultivating such land for a period of at least 12 years prior to the commencement of the Common Lands Act….”. 16. If the aforesaid test laid down by this Court, is applied to the case at hand, then undoubtedly, all the conditions specified therein have been satisfied by the appellants, and their case is also fully supported by the Gram Panchayat. The contents of its counter affidavit filed before this Court, read: “It is, however, not denied that the petitioners have been in cultivating possession of the lands as per entries in the revenue records from the time of their forefathers for the past over seventy years or so and paying nominal rent to the Gram Panchayat from time to time and when the Panchayat refused to take rent the same was deposited in the court. Their possession has remained uninterrupted. Though the possession has been unauthorised, the Panchayat never admitted the petitioners as its tenants.” 17. In view of the above, the appellants may have a valid case. But in the said case, the provisions of Section 10 of the Tenancy Act, not attracted and thus, the facts herein become distinguishable. However, the High Court found them non-suited on the anvil of Section 10 of the Tenancy Act, observing that the expression ‘any person’, contained in Section 8, does not include a joint-owner (hisedar). It has been admitted by the parties that the appellants and their ancestors were hisedars/joint owners/co-sharers in the shamilat deh from a period prior to even 1935-36. The pleadings of the appellants, in fact, begin with such admission by them.18. Provisions of Section 10 of the Tenancy Act put a complete embargo on a hisedar/joint-owner to claim occupancy rights. There is no agreement between the appellants and Gram Panchyat creating any tenancy in their favour. Granting the relief to the appellants would amount to ignoring the existence of Section 10 itself and it would be against all norms of interpretation which requires that statutory provisions must be interpreted in such a manner as not to render any of its provision otiose unless there are compelling reasons for the court to resort to that extreme contingent.
### Response:
0
### Explanation:
the said case, the provisions of Section 10 of the Tenancy Act, not attracted and thus, the facts herein become distinguishable. However, the High Court found them non-suited on the anvil of Section 10 of the Tenancy Act, observing that the expression ‘anycontained in Section 8, does not include a joint-owner (hisedar). It has been admitted by the parties that the appellants and their ancestors were hisedars/joint owners/co-sharers in the shamilat deh from a period prior to even 1935-36. The pleadings of the appellants, in fact, begin with such admission by them.18. Provisions of Section 10 of the Tenancy Act put a complete embargo on a hisedar/joint-owner to claim occupancy rights. There is no agreement between the appellants and Gram Panchyat creating any tenancy in their favour. Granting the relief to the appellants would amount to ignoring the existence of Section 10 itself and it would be against all norms of interpretation which requires that statutory provisions must be interpreted in such a manner as not to render any of its provision otiose unless there are compelling reasons for the court to resort to that extreme contingent.
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Commissioner of Income Tax Vs. Vikram Cotton Mills Limited | though by no means determinate, scope. There the assessee, which was a banking company in a large way of business, owned a six-storeyed building, where its offices were located on the ground floor and a part of the sixth floor, while the rest of the building was let out to tenants. The question was whether the income realised by the assessee by way of rent for the portion of the building let out was liable to excess profits tax and could be included in the profits of the business under rule 4(4) of the First Schedule to the Excess Profits Tax Act, 1940. It was held that the realisation of rental income by the assessee was in the course of its business in prosecution of one of its objects in the memorandum. It depends in the facts and circumstances of each case.In New Savan Sugar and Gur Refining Co. Ltd. v. Commissioner of Income Tax, Calcutta, 74 I.T.R. 7, this Court w as dealing with a case, where the appellant-company was carrying on the business of crushing sugarcane and gur refining. Its managing agents wrote a letter addressed to its shareholders referring to the alarming increase of Government interference in the affairs of this sugar industry in Bihar and the increase of wages of the workers, the levy of a cess and deterioration in cane crops and advising the acceptance of an offer of the lease of the company as a running concern. Thereafter examination, it was found that the cumulative effect of different clauses of the deed suggested that the assessee would have no concern with the production of the company. It was therefore held that the terms of the lease deed that the intention of the appellant was to part with the entire machinery of the factory and the premises with the obvious purpose of earning rental income and not to treat the factory and the machinery as a commercial asset during the subsistence of the lease. 9. In each case the intention has to be gathered as to whether the commercial asset was intended to be exploited by the assessee or whether it was intended to be used by letting it out for a temporary period. It depends upon the facts an d circumstances of each case. The circumstances of the instance case were as follows as appears from the statement of the case: "The assessee-company incurred losses in its business of manufacture of textiles from the ye ar 1949. On account of heavy losses, its manufacturing activities were stopped from December, 1953. By 1956, colossal loss had accumulated. Its liabilities had amounted to Rs.26 lakhs as against the capital of Rs.11 lakhs. A winding-up petition was filed in the Allahabad High Court by the creditors. M/s. Jawala Prasad Radha Krishan in February 1954. The Industrial Finance Corporation was one of the creditors of the company and the company had a liability of Rs.12.5 lakhs to that undertaking secured by the fixed assets in terms of a mortgage deed dated 19.12.1950. The Punjab National Bank had advanced a loan of Rs.6.5 lakhs to the company by movable assets of the company such as cotton, cloth and yarn. The Industrial Finance Corporation had taken physical possession of the immovable properties of the company on 12th July, 1954, on the companys failure to pay off its debts to the I.F.C. The High Court thereafter approved a scheme, by an order dated 21. 5.1956 whereby the assets and the entire business of the assessee-company were let out to M/s. General Fibres Dealers (Pvt.) Ltd., Calcutta, at a least rent of Rs.2, 50, 000 per year. The management of the assessee company was transferred to a Board of Trustees appointed by the High Court pursuant to the scheme referred to above. According to the terms of the lease dated 7.7.1956 with the lessee, the General Fibres Dealers (Pvt.) Ltd., the assets of the company were let out for an initial period of ten years, with a right given to the lessee to exercise the option for a further period of ten years. The assesse-company had maintained a skeleton staff thereafter." In the context of these facts, it appears that it was a possible conclusion that the assessee intended that there should be a temporary suspension of the business for the purpose of reconstruction of the company and for that matter there must be stoppage of the user of the machinery by the assessee. It was temporary lease though for 10 or 19 years on renewal years and after the expiry of the period the property reverted back to the assessee. It is pre-dominantly a matter of intention. Intention is an inference to be drawn from the relevant facts. All the relevant facts, it appears have been considered by the Tribunal from the correct standpoint, i.e. Ordinary prudent businessman or as in England it used to be "man on the top of the platform omnibus.", or "directors arm chair". 10. If on that test a plausible conclusion has been drawn-no objection can be taken. 11. On that basis applying the correct principle the Tribunal found that the intention was not to part with the machine but to lease it out for a temporary period as a part of exploitation. In such a circumstance, it cannot be said that no business was carried on and their income derived from the machine letting was only a rent income. There was a temporary suspension of business for a temporary period for an object to tide over the crisis condition. There was never any act indicating that the assessee never intended to carry on the business. 12. In the background of these principles and in the facts and circumstances of the case so found, we cannot say such a finding was either perverse or not sustainable. 13. In the aforesaid view of the matter, the High Court was right in the view it took and the appeals must accordingly fail and are dismissed with costs. 14. | 0[ds]In the context of these facts, it appears that it was a possible conclusion that the assessee intended that there should be a temporary suspension of the business for the purpose of reconstruction of the company and for that matter there must be stoppage of the user of the machinery by the assessee. It was temporary lease though for 10 or 19 years on renewal years and after the expiry of the period the property reverted back to the assesseeIt is pre-dominantly a matter of intention. Intention is an inference to be drawn from the relevant facts. All the relevant facts, it appears have been considered by the Tribunal from the correct standpoint, i.e. Ordinary prudent businessman or as in England it used to be "man on the top of the platform omnibus.", or "directors arm chair".If on that test a plausible conclusion has been drawn-no objection can be takenOn that basis applying the correct principle the Tribunal found that the intention was not to part with the machine but to lease it out for a temporary period as a part of exploitation. In such a circumstance, it cannot be said that no business was carried on and their income derived from the machine letting was only a rent income. There was a temporary suspension of business for a temporary period for an object to tide over the crisis condition. There was never any act indicating that the assessee never intended to carry on the businessIn the background of these principles and in the facts and circumstances of the case so found, we cannot say such a finding was either perverse or not sustainableIn the aforesaid view of the matter, the High Court was right in the view it took and the appeals must accordingly fail and are dismissed with costsIt was therefore held that the terms of the lease deed that the intention of the appellant was to part with the entire machinery of the factory and the premises with the obvious purpose of earning rental income and not to treat the factory and the machinery as a commercial asset during the subsistence of the lease. | 0 | 4,613 | 384 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
though by no means determinate, scope. There the assessee, which was a banking company in a large way of business, owned a six-storeyed building, where its offices were located on the ground floor and a part of the sixth floor, while the rest of the building was let out to tenants. The question was whether the income realised by the assessee by way of rent for the portion of the building let out was liable to excess profits tax and could be included in the profits of the business under rule 4(4) of the First Schedule to the Excess Profits Tax Act, 1940. It was held that the realisation of rental income by the assessee was in the course of its business in prosecution of one of its objects in the memorandum. It depends in the facts and circumstances of each case.In New Savan Sugar and Gur Refining Co. Ltd. v. Commissioner of Income Tax, Calcutta, 74 I.T.R. 7, this Court w as dealing with a case, where the appellant-company was carrying on the business of crushing sugarcane and gur refining. Its managing agents wrote a letter addressed to its shareholders referring to the alarming increase of Government interference in the affairs of this sugar industry in Bihar and the increase of wages of the workers, the levy of a cess and deterioration in cane crops and advising the acceptance of an offer of the lease of the company as a running concern. Thereafter examination, it was found that the cumulative effect of different clauses of the deed suggested that the assessee would have no concern with the production of the company. It was therefore held that the terms of the lease deed that the intention of the appellant was to part with the entire machinery of the factory and the premises with the obvious purpose of earning rental income and not to treat the factory and the machinery as a commercial asset during the subsistence of the lease. 9. In each case the intention has to be gathered as to whether the commercial asset was intended to be exploited by the assessee or whether it was intended to be used by letting it out for a temporary period. It depends upon the facts an d circumstances of each case. The circumstances of the instance case were as follows as appears from the statement of the case: "The assessee-company incurred losses in its business of manufacture of textiles from the ye ar 1949. On account of heavy losses, its manufacturing activities were stopped from December, 1953. By 1956, colossal loss had accumulated. Its liabilities had amounted to Rs.26 lakhs as against the capital of Rs.11 lakhs. A winding-up petition was filed in the Allahabad High Court by the creditors. M/s. Jawala Prasad Radha Krishan in February 1954. The Industrial Finance Corporation was one of the creditors of the company and the company had a liability of Rs.12.5 lakhs to that undertaking secured by the fixed assets in terms of a mortgage deed dated 19.12.1950. The Punjab National Bank had advanced a loan of Rs.6.5 lakhs to the company by movable assets of the company such as cotton, cloth and yarn. The Industrial Finance Corporation had taken physical possession of the immovable properties of the company on 12th July, 1954, on the companys failure to pay off its debts to the I.F.C. The High Court thereafter approved a scheme, by an order dated 21. 5.1956 whereby the assets and the entire business of the assessee-company were let out to M/s. General Fibres Dealers (Pvt.) Ltd., Calcutta, at a least rent of Rs.2, 50, 000 per year. The management of the assessee company was transferred to a Board of Trustees appointed by the High Court pursuant to the scheme referred to above. According to the terms of the lease dated 7.7.1956 with the lessee, the General Fibres Dealers (Pvt.) Ltd., the assets of the company were let out for an initial period of ten years, with a right given to the lessee to exercise the option for a further period of ten years. The assesse-company had maintained a skeleton staff thereafter." In the context of these facts, it appears that it was a possible conclusion that the assessee intended that there should be a temporary suspension of the business for the purpose of reconstruction of the company and for that matter there must be stoppage of the user of the machinery by the assessee. It was temporary lease though for 10 or 19 years on renewal years and after the expiry of the period the property reverted back to the assessee. It is pre-dominantly a matter of intention. Intention is an inference to be drawn from the relevant facts. All the relevant facts, it appears have been considered by the Tribunal from the correct standpoint, i.e. Ordinary prudent businessman or as in England it used to be "man on the top of the platform omnibus.", or "directors arm chair". 10. If on that test a plausible conclusion has been drawn-no objection can be taken. 11. On that basis applying the correct principle the Tribunal found that the intention was not to part with the machine but to lease it out for a temporary period as a part of exploitation. In such a circumstance, it cannot be said that no business was carried on and their income derived from the machine letting was only a rent income. There was a temporary suspension of business for a temporary period for an object to tide over the crisis condition. There was never any act indicating that the assessee never intended to carry on the business. 12. In the background of these principles and in the facts and circumstances of the case so found, we cannot say such a finding was either perverse or not sustainable. 13. In the aforesaid view of the matter, the High Court was right in the view it took and the appeals must accordingly fail and are dismissed with costs. 14.
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0
### Explanation:
In the context of these facts, it appears that it was a possible conclusion that the assessee intended that there should be a temporary suspension of the business for the purpose of reconstruction of the company and for that matter there must be stoppage of the user of the machinery by the assessee. It was temporary lease though for 10 or 19 years on renewal years and after the expiry of the period the property reverted back to the assesseeIt is pre-dominantly a matter of intention. Intention is an inference to be drawn from the relevant facts. All the relevant facts, it appears have been considered by the Tribunal from the correct standpoint, i.e. Ordinary prudent businessman or as in England it used to be "man on the top of the platform omnibus.", or "directors arm chair".If on that test a plausible conclusion has been drawn-no objection can be takenOn that basis applying the correct principle the Tribunal found that the intention was not to part with the machine but to lease it out for a temporary period as a part of exploitation. In such a circumstance, it cannot be said that no business was carried on and their income derived from the machine letting was only a rent income. There was a temporary suspension of business for a temporary period for an object to tide over the crisis condition. There was never any act indicating that the assessee never intended to carry on the businessIn the background of these principles and in the facts and circumstances of the case so found, we cannot say such a finding was either perverse or not sustainableIn the aforesaid view of the matter, the High Court was right in the view it took and the appeals must accordingly fail and are dismissed with costsIt was therefore held that the terms of the lease deed that the intention of the appellant was to part with the entire machinery of the factory and the premises with the obvious purpose of earning rental income and not to treat the factory and the machinery as a commercial asset during the subsistence of the lease.
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Johnson and Johnson Limited Vs. Commissioner of Central Excise, Aurangabad | whether the appellants are entitled to exemption under Notifications Nos. 339/86-CE dated 11-6-1986 and 69/93-CE dated 28-2-1993 respectively. The Customs, Excise and Gold Control Appellate Tribunal (Mumbai Branch) has negatived the contention of the appellants. The Tribunal held that the decision of this Court in Jain Engineering case had no application as in that case the question was whether manufacturers of parts of combustion piston engines were entitled to that benefit or not. Distinguishing the case on that premise the Tribunal refused to place reliance thereon. It then quoted from the order of the appellate authority and held that the appellate authority had rightly held that the views of the experts could not be relied upon and so holding it concluded that the goods did not come within the purview of Heading 90 and, therefore, the demand of the appellants for exemption was baseless. It observed that since the goods in question are a combination of both items, the ratio of this Court in the decision cited above had no application. As far as the circular is concerned, it was held that it would not be applicable and accordingly dismissed the appeals. The appellants have approached this Court by way of these appeals 9. In the context of what we have stated hereinbefore the short question is whether the goods in question fall within Entry 3005.90 or they fall within the scope of Entry 90.18 within the meaning of the respective terms "others" and instruments and appliances used in surgical sciences. As stated earlier the submission of Mr. K. Parasaran, the learned Senior Counsel for the appellants, was that since each item in question was an integrated product comprising the needled suturing material, it fell within the meaning of the term "appliances" used in surgical operations and attracted duty under Item 90.18 of Chapter 90 whereas Mr. Subba Rao, the learned counsel for the Revenue, contended that it fell within the expression "others" in Item 3005.90. Mr. Parasaran further contended that if there was any doubt whatsoever it stood resolved by the subsequent two notifications issued under Section 5-A, being Notifications Nos. 60 of 1995 dated 16-3-1995 and 61 of 1995 dated 16-3-1995, respectively. Lastly, he relied on the Circular No. 9/96-Cus dated 13-2-1996 to state that the matter stood clarified in favour of the assessee by the said circular 10. Mr. Subba Rao contended that needle by itself could have fallen within Item 90.18 as an appliance but the needle along with the suturing material could not be said to be a surgical appliance and would not be attracted (sic covered) by the said item because suturing material stood specifically covered by Note 3 of Chapter 30 and would, therefore, fall within Entry 3005, namely, pharmaceutical goods not elsewhere specified and would be attracted by the residuary clause in Item 3005.90. We find it difficult to accept the contention urged on behalf of the Revenue. If the needle by itself fell within Entry 90.18 as a surgical appliance we find it difficult to conclude that if suturing material is affixed thereto, it ceases to a be a surgical appliance and would fall within the term suturing material in Note 3 of Chapter 30. Suturing material by itself may have attracted that item but the composite item comprising the needle as well as the suturing a material appended thereto could not fall within the expression suturing material and would not be outside the expression surgical appliances. At the relevant point of time these two were separately dealt with, needle simpliciter falling within the Entry 90.18 and suturing material simpliciter falling within clause (a) of Note 3 of Chapter 30 and consequently under Item 3005.90. But when the suturing material and the needle form an integrated single item used for surgical purposes it would not be proper to adopt a narrow construction to place it under the heading of suturing material removing it from the broader terminology of surgical appliance under Item 90.18. It was possibly for this reason that by the subsequent notifications the position was made clear and the ambiguity was removed. We are, therefore, of the opinion that the items produced by the appellant Company would fall within Entry 90.18 as the terminology surgical appliances has a broader compass than the terminology suturing appliances of Chapter 30 of the Excise Tariff. As far as the decision in Jain Engineering is concerned, the facts show that the notification provided that the article specified in the table annexed to the notification and falling under Heading 84.06 were exempt from payment of certain portion of customs duty. The table not only mentions internal combustion piston engines forming the subject-matter of Heading 84.06 but also mentions "parts thereof". It was construed that the notification intended to grant exemption to the parts also. The Court, therefore, turned down the Revenues contention that the notification was inapplicable to parts of the excisable item manufactured by the appellant. The Tribunal extracted para 7 of the judgment but merely stated that in the facts of the case the ratio was not applicable. We are afraid that the Tribunal failed to come to grips with the question. The submission was that the notification not only intended to grant exemption to internal combustion piston engines but also to parts thereof and once this intention was clear it was unreasonable to take a narrow view of the notification and to refuse to extend the benefit to the manufacturer. In the instant case also, we are of the opinion that the intention of the authorities was to grant exemption to certain life-saving and sight-saving articles manufactured in the country and once this intention is clear from the subsequent notifications issued under Section 5-A of the Act of 1995, we do not see any reason why we should take a narrow view to confine the two items produced by the appellants to Entry 3005.90 rather than place them in the wider connotation of surgical appliances in Entry 90.18 of Chapter 90 | 1[ds]We are, therefore, of the opinion that the items produced by the appellant Company would fall within Entry 90.18 as the terminology surgical appliances has a broader compass than the terminology suturing appliances of Chapter 30 of the Excise Tariff. As far as the decision in Jain Engineering is concerned, the facts show that the notification provided that the article specified in the table annexed to the notification and falling under Heading 84.06 were exempt from payment of certain portion of customs duty. The table not only mentions internal combustion piston engines forming ther of Heading 84.06 but also mentions "parts thereof". It was construed that the notification intended to grant exemption to the parts also. The Court, therefore, turned down the Revenues contention that the notification was inapplicable to parts of the excisable item manufactured by the appellant. The Tribunal extracted para 7 of the judgment but merely stated that in the facts of the case the ratio was not applicable. We are afraid that the Tribunal failed to come to grips with the question. The submission was that the notification not only intended to grant exemption to internal combustion piston engines but also to parts thereof and once this intention was clear it was unreasonable to take a narrow view of the notification and to refuse to extend the benefit to the manufacturer. In the instant case also, we are of the opinion that the intention of the authorities was to grant exemption to certaing andg articles manufactured in the country and once this intention is clear from the subsequent notifications issued under SectionA of the Act of 1995, we do not see any reason why we should take a narrow view to confine the two items produced by the appellants to Entry 3005.90 rather than place them in the wider connotation of surgical appliances in Entry 90.18 of Chapter 90 | 1 | 3,050 | 334 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
whether the appellants are entitled to exemption under Notifications Nos. 339/86-CE dated 11-6-1986 and 69/93-CE dated 28-2-1993 respectively. The Customs, Excise and Gold Control Appellate Tribunal (Mumbai Branch) has negatived the contention of the appellants. The Tribunal held that the decision of this Court in Jain Engineering case had no application as in that case the question was whether manufacturers of parts of combustion piston engines were entitled to that benefit or not. Distinguishing the case on that premise the Tribunal refused to place reliance thereon. It then quoted from the order of the appellate authority and held that the appellate authority had rightly held that the views of the experts could not be relied upon and so holding it concluded that the goods did not come within the purview of Heading 90 and, therefore, the demand of the appellants for exemption was baseless. It observed that since the goods in question are a combination of both items, the ratio of this Court in the decision cited above had no application. As far as the circular is concerned, it was held that it would not be applicable and accordingly dismissed the appeals. The appellants have approached this Court by way of these appeals 9. In the context of what we have stated hereinbefore the short question is whether the goods in question fall within Entry 3005.90 or they fall within the scope of Entry 90.18 within the meaning of the respective terms "others" and instruments and appliances used in surgical sciences. As stated earlier the submission of Mr. K. Parasaran, the learned Senior Counsel for the appellants, was that since each item in question was an integrated product comprising the needled suturing material, it fell within the meaning of the term "appliances" used in surgical operations and attracted duty under Item 90.18 of Chapter 90 whereas Mr. Subba Rao, the learned counsel for the Revenue, contended that it fell within the expression "others" in Item 3005.90. Mr. Parasaran further contended that if there was any doubt whatsoever it stood resolved by the subsequent two notifications issued under Section 5-A, being Notifications Nos. 60 of 1995 dated 16-3-1995 and 61 of 1995 dated 16-3-1995, respectively. Lastly, he relied on the Circular No. 9/96-Cus dated 13-2-1996 to state that the matter stood clarified in favour of the assessee by the said circular 10. Mr. Subba Rao contended that needle by itself could have fallen within Item 90.18 as an appliance but the needle along with the suturing material could not be said to be a surgical appliance and would not be attracted (sic covered) by the said item because suturing material stood specifically covered by Note 3 of Chapter 30 and would, therefore, fall within Entry 3005, namely, pharmaceutical goods not elsewhere specified and would be attracted by the residuary clause in Item 3005.90. We find it difficult to accept the contention urged on behalf of the Revenue. If the needle by itself fell within Entry 90.18 as a surgical appliance we find it difficult to conclude that if suturing material is affixed thereto, it ceases to a be a surgical appliance and would fall within the term suturing material in Note 3 of Chapter 30. Suturing material by itself may have attracted that item but the composite item comprising the needle as well as the suturing a material appended thereto could not fall within the expression suturing material and would not be outside the expression surgical appliances. At the relevant point of time these two were separately dealt with, needle simpliciter falling within the Entry 90.18 and suturing material simpliciter falling within clause (a) of Note 3 of Chapter 30 and consequently under Item 3005.90. But when the suturing material and the needle form an integrated single item used for surgical purposes it would not be proper to adopt a narrow construction to place it under the heading of suturing material removing it from the broader terminology of surgical appliance under Item 90.18. It was possibly for this reason that by the subsequent notifications the position was made clear and the ambiguity was removed. We are, therefore, of the opinion that the items produced by the appellant Company would fall within Entry 90.18 as the terminology surgical appliances has a broader compass than the terminology suturing appliances of Chapter 30 of the Excise Tariff. As far as the decision in Jain Engineering is concerned, the facts show that the notification provided that the article specified in the table annexed to the notification and falling under Heading 84.06 were exempt from payment of certain portion of customs duty. The table not only mentions internal combustion piston engines forming the subject-matter of Heading 84.06 but also mentions "parts thereof". It was construed that the notification intended to grant exemption to the parts also. The Court, therefore, turned down the Revenues contention that the notification was inapplicable to parts of the excisable item manufactured by the appellant. The Tribunal extracted para 7 of the judgment but merely stated that in the facts of the case the ratio was not applicable. We are afraid that the Tribunal failed to come to grips with the question. The submission was that the notification not only intended to grant exemption to internal combustion piston engines but also to parts thereof and once this intention was clear it was unreasonable to take a narrow view of the notification and to refuse to extend the benefit to the manufacturer. In the instant case also, we are of the opinion that the intention of the authorities was to grant exemption to certain life-saving and sight-saving articles manufactured in the country and once this intention is clear from the subsequent notifications issued under Section 5-A of the Act of 1995, we do not see any reason why we should take a narrow view to confine the two items produced by the appellants to Entry 3005.90 rather than place them in the wider connotation of surgical appliances in Entry 90.18 of Chapter 90
### Response:
1
### Explanation:
We are, therefore, of the opinion that the items produced by the appellant Company would fall within Entry 90.18 as the terminology surgical appliances has a broader compass than the terminology suturing appliances of Chapter 30 of the Excise Tariff. As far as the decision in Jain Engineering is concerned, the facts show that the notification provided that the article specified in the table annexed to the notification and falling under Heading 84.06 were exempt from payment of certain portion of customs duty. The table not only mentions internal combustion piston engines forming ther of Heading 84.06 but also mentions "parts thereof". It was construed that the notification intended to grant exemption to the parts also. The Court, therefore, turned down the Revenues contention that the notification was inapplicable to parts of the excisable item manufactured by the appellant. The Tribunal extracted para 7 of the judgment but merely stated that in the facts of the case the ratio was not applicable. We are afraid that the Tribunal failed to come to grips with the question. The submission was that the notification not only intended to grant exemption to internal combustion piston engines but also to parts thereof and once this intention was clear it was unreasonable to take a narrow view of the notification and to refuse to extend the benefit to the manufacturer. In the instant case also, we are of the opinion that the intention of the authorities was to grant exemption to certaing andg articles manufactured in the country and once this intention is clear from the subsequent notifications issued under SectionA of the Act of 1995, we do not see any reason why we should take a narrow view to confine the two items produced by the appellants to Entry 3005.90 rather than place them in the wider connotation of surgical appliances in Entry 90.18 of Chapter 90
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Ashok Leyland Limited Vs. Commissioner of Income Tax | the view that the import and sale of spare parts is not attributable to the industry carried on by the assessee and, therefore, the income arising therefrom does not qualify for the benefit of section 80E/80-I. The Tribunal, however, held in favour of the assessee whereupon the aforesaid question was referred to the High Court at the instance of the Revenue. The High Court has disagreed with the view taken by the Tribunal and has answered the question in favour of the Revenue and against the assesseeIt is brought to our notice by learned counsel for the appellant-assessee that for the subsequent assessment years 1968-69 and 1969-70, an identical reference was made under section 256 and on this occasion the High Court has answered the very same question, between the very same parties, in favour of the assessee and against the Revenue following the decision of this court in Cambay Electric Supply Industrial Co. Ltd. v. CIT 1978 (113) ITR 84. The later decision of the High Court is reported in CIT v. Ashok Leyland Ltd. 1981 (130) ITR 900 (Mad) . Learned counsel for the assessee commended the reasoning of the said decision for our acceptance. 3. Sections 80E and 80-1 were couched in identical terms. They provided for certain deduction from the profits and gains of a company attributable to priority industry. In so far as relevant, section 80-I(1) reads. " (1) In the case of a company to which this section applies, where the gross total income includes any profits and gains attributable to any priority industry, there shall be allowed, in accordance with and subject to the provisions of this section, a deduction from such profits and gains of an amount equal to eight per cent. thereof, in computing the total income of the company... " * 4. The expression "priority industry" occurring in the said section was defined in sub-section (7) of section 80B. It reads. " priority industry means the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Sixth Schedule or the business of any hotel where such business is carried on by an Indian company and the hotel is for the time being approved in this behalf by the Central Government ; " * 5. The industry being carried on by the assessee is admittedly a priority industry as defined in section 80-B(7). The only question is whether the profits and gains arising from import and sale of spare parts can be said to be "attributable to... priority industry" being carried on by the assessee. The Tribunal has found that the assessee commenced manufacturing Ashok Leyland trucks in collaboration with a foreign company Leyland from about 1966 onwards. There was a phased programme for the manufacture of necessary spare parts. It was found that some of the purchasers of the trucks from the assessee found it difficult during some years to get the requisite spare parts either because the spare parts manufactured by the assessee were not sufficient to meet the demand or because the assessee did not manufacture those particular spare parts. In the said circumstances and as a matter of commercial expediency, the assessee imported such spare parts and sold them during the accounting years relevant to the assessment years concerned herein. It is on these facts that the question referred has to be answered. We are of the opinion that reading the relevant portion of sub-section (1) of section 80-I along with the definition of "priority industry" in section 80B(7), it must be held that the profits and gains arising from import and sale of spare parts was attributable to the industry (priority industry) carried on by the assessee. On the facts found by the Tribunal it is difficult to disassociate the said activity from the main activity carried on by the assessee, viz., manufacture and sale of the Ashok Leyland trucks. It was intimately connected with the priority industry set up and being run by the assessee. The decision of this court in Cambay Electric Supply Industrial Co. Ltd. 1978 (113) ITR 84 , clearly supports the assessees case. In that case, the question was whether the balancing charge arising as a result of the sale of old machinery and buildings and worked out in accordance with section 41(2) had to be taken in the account and included in the profits and gains of the business carried on by the assessee. The following observations are relevant for our purposes (at page 93). " As regards the aspect emerging from the expression attributable to occurring in the phrase Profits and gains attributable to the business of the specified industry (here generation and distribution of electricity) on which the learned Solicitor-General relied, it will be pertinent to observe that the Legislature has deliberately used the expression attributable to and not the expression derived from. It cannot be disputed that the expression attributable to is certainly wider in import than the expression derived from. Had the expression derived from been used it could have with some force been contended that a balancing charge arising from the sale of old machinery and buildings cannot be regarded as profits and gains derived from the conduct of the business of generation and distribution of electricity. In this connection, it may be pointed out that whenever the Legislature wanted to give a restricted meaning in the manner suggested by the learned Solicitor-General, it has used the expression derived from, as, for instance, in section 80J. In our view, since the expression of wider import, namely, attributable to, has been used, the Legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity. " * 6. In our opinion, the said observations conclude the issue, as has been rightly held in the later decision of the Madras High Court 7. | 1[ds]We are of the opinion that reading the relevant portion of sub-section (1) of section 80-I along with the definition of "priority industry" in section 80B(7), it must be held that the profits and gains arising from import and sale of spare parts was attributable to the industry (priority industry) carried on by the assessee. On the facts found by the Tribunal it is difficult to disassociate the said activity from the main activity carried on by the assessee, viz., manufacture and sale of the Ashok Leyland trucks. It was intimately connected with the priority industry set up and being run by the assessee. The decision of this court in Cambay Electric Supply Industrial Co. Ltd. 1978 (113) ITR 84 , clearly supports the assessees case. In that case, the question was whether the balancing charge arising as a result of the sale of old machinery and buildings and worked out in accordance with section 41(2) had to be taken in the account and included in the profits and gains of the business carried on by the assessee. The following observations are relevant for our purposes (at page 93)" As regards the aspect emerging from the expression attributable to occurring in the phrase Profits and gains attributable to the business of the specified industry (here generation and distribution of electricity) on which the learned Solicitor-General relied, it will be pertinent to observe that the Legislature has deliberately used the expression attributable to and not the expression derived from. It cannot be disputed that the expression attributable to is certainly wider in import than the expression derived from. Had the expression derived from been used it could have with some force been contended that a balancing charge arising from the sale of old machinery and buildings cannot be regarded as profits and gains derived from the conduct of the business of generation and distribution of electricity. In this connection, it may be pointed out that whenever the Legislature wanted to give a restricted meaning in the manner suggested by the learned Solicitor-General, it has used the expression derived from, as, for instance, in section 80J. In our view, since the expression of wider import, namely, attributable to, has been used, the Legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity. " *In our opinion, the said observations conclude the issue, as has been rightly held in the later decision of the Madras High Court | 1 | 1,413 | 467 | ### Instruction:
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the view that the import and sale of spare parts is not attributable to the industry carried on by the assessee and, therefore, the income arising therefrom does not qualify for the benefit of section 80E/80-I. The Tribunal, however, held in favour of the assessee whereupon the aforesaid question was referred to the High Court at the instance of the Revenue. The High Court has disagreed with the view taken by the Tribunal and has answered the question in favour of the Revenue and against the assesseeIt is brought to our notice by learned counsel for the appellant-assessee that for the subsequent assessment years 1968-69 and 1969-70, an identical reference was made under section 256 and on this occasion the High Court has answered the very same question, between the very same parties, in favour of the assessee and against the Revenue following the decision of this court in Cambay Electric Supply Industrial Co. Ltd. v. CIT 1978 (113) ITR 84. The later decision of the High Court is reported in CIT v. Ashok Leyland Ltd. 1981 (130) ITR 900 (Mad) . Learned counsel for the assessee commended the reasoning of the said decision for our acceptance. 3. Sections 80E and 80-1 were couched in identical terms. They provided for certain deduction from the profits and gains of a company attributable to priority industry. In so far as relevant, section 80-I(1) reads. " (1) In the case of a company to which this section applies, where the gross total income includes any profits and gains attributable to any priority industry, there shall be allowed, in accordance with and subject to the provisions of this section, a deduction from such profits and gains of an amount equal to eight per cent. thereof, in computing the total income of the company... " * 4. The expression "priority industry" occurring in the said section was defined in sub-section (7) of section 80B. It reads. " priority industry means the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Sixth Schedule or the business of any hotel where such business is carried on by an Indian company and the hotel is for the time being approved in this behalf by the Central Government ; " * 5. The industry being carried on by the assessee is admittedly a priority industry as defined in section 80-B(7). The only question is whether the profits and gains arising from import and sale of spare parts can be said to be "attributable to... priority industry" being carried on by the assessee. The Tribunal has found that the assessee commenced manufacturing Ashok Leyland trucks in collaboration with a foreign company Leyland from about 1966 onwards. There was a phased programme for the manufacture of necessary spare parts. It was found that some of the purchasers of the trucks from the assessee found it difficult during some years to get the requisite spare parts either because the spare parts manufactured by the assessee were not sufficient to meet the demand or because the assessee did not manufacture those particular spare parts. In the said circumstances and as a matter of commercial expediency, the assessee imported such spare parts and sold them during the accounting years relevant to the assessment years concerned herein. It is on these facts that the question referred has to be answered. We are of the opinion that reading the relevant portion of sub-section (1) of section 80-I along with the definition of "priority industry" in section 80B(7), it must be held that the profits and gains arising from import and sale of spare parts was attributable to the industry (priority industry) carried on by the assessee. On the facts found by the Tribunal it is difficult to disassociate the said activity from the main activity carried on by the assessee, viz., manufacture and sale of the Ashok Leyland trucks. It was intimately connected with the priority industry set up and being run by the assessee. The decision of this court in Cambay Electric Supply Industrial Co. Ltd. 1978 (113) ITR 84 , clearly supports the assessees case. In that case, the question was whether the balancing charge arising as a result of the sale of old machinery and buildings and worked out in accordance with section 41(2) had to be taken in the account and included in the profits and gains of the business carried on by the assessee. The following observations are relevant for our purposes (at page 93). " As regards the aspect emerging from the expression attributable to occurring in the phrase Profits and gains attributable to the business of the specified industry (here generation and distribution of electricity) on which the learned Solicitor-General relied, it will be pertinent to observe that the Legislature has deliberately used the expression attributable to and not the expression derived from. It cannot be disputed that the expression attributable to is certainly wider in import than the expression derived from. Had the expression derived from been used it could have with some force been contended that a balancing charge arising from the sale of old machinery and buildings cannot be regarded as profits and gains derived from the conduct of the business of generation and distribution of electricity. In this connection, it may be pointed out that whenever the Legislature wanted to give a restricted meaning in the manner suggested by the learned Solicitor-General, it has used the expression derived from, as, for instance, in section 80J. In our view, since the expression of wider import, namely, attributable to, has been used, the Legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity. " * 6. In our opinion, the said observations conclude the issue, as has been rightly held in the later decision of the Madras High Court 7.
### Response:
1
### Explanation:
We are of the opinion that reading the relevant portion of sub-section (1) of section 80-I along with the definition of "priority industry" in section 80B(7), it must be held that the profits and gains arising from import and sale of spare parts was attributable to the industry (priority industry) carried on by the assessee. On the facts found by the Tribunal it is difficult to disassociate the said activity from the main activity carried on by the assessee, viz., manufacture and sale of the Ashok Leyland trucks. It was intimately connected with the priority industry set up and being run by the assessee. The decision of this court in Cambay Electric Supply Industrial Co. Ltd. 1978 (113) ITR 84 , clearly supports the assessees case. In that case, the question was whether the balancing charge arising as a result of the sale of old machinery and buildings and worked out in accordance with section 41(2) had to be taken in the account and included in the profits and gains of the business carried on by the assessee. The following observations are relevant for our purposes (at page 93)" As regards the aspect emerging from the expression attributable to occurring in the phrase Profits and gains attributable to the business of the specified industry (here generation and distribution of electricity) on which the learned Solicitor-General relied, it will be pertinent to observe that the Legislature has deliberately used the expression attributable to and not the expression derived from. It cannot be disputed that the expression attributable to is certainly wider in import than the expression derived from. Had the expression derived from been used it could have with some force been contended that a balancing charge arising from the sale of old machinery and buildings cannot be regarded as profits and gains derived from the conduct of the business of generation and distribution of electricity. In this connection, it may be pointed out that whenever the Legislature wanted to give a restricted meaning in the manner suggested by the learned Solicitor-General, it has used the expression derived from, as, for instance, in section 80J. In our view, since the expression of wider import, namely, attributable to, has been used, the Legislature intended to cover receipts from sources other than the actual conduct of the business of generation and distribution of electricity. " *In our opinion, the said observations conclude the issue, as has been rightly held in the later decision of the Madras High Court
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Malik Brothers Vs. Narendra Dadhich and Others | and the law on the subject, came to the conclusion that there has been a gross violation of the aforesaid provision of the Arbitration Act and it is not known why respondent No. 1 (Indore Development Authority) elected to appoint the Arbitrator. The High Court also came to the further conclusion that the land would not have been disposed of even on lease basis through arbitration and the Indore Development Authority committed an error of law and consequent public injury by revival of a close issue by appointment of an Arbitrator and by its attempt benefited the present appellant at the cost of public revenue. With the aforesaid conclusion, the High Court quashed the resolution of the Indore Development Authority, referring the dispute to the Arbitrator as well as the award of the Arbitrator and passed certain consequential directions. The question that arises for consideration therefore, is whether in the facts and circumstances of the case, the High Court was justified in entertaining a writ petition in the garb of a public interest litigation and was justified even in setting aside the award of a competent Arbitrator which was not assailed under the provisions of the Arbitration Act but by filing a petition under Article 226 on the ground that the very decision of the Improvement Trust, referring the matter to the Arbitrator was illegal and has caused public injury. 4. At the outset it may be stated that the land in question was admittedly put to public auction and the appellant was the highest bidder and this fact has not been disputed at any stage. The further admitted position is that the appellant had deposited some amount but could not deposit the amount even though the bid of the appellant was accepted by the competent authority and for non-deposit of the balance amount, the earlier amount deposited stood forfeited which however was challenged by the appellant. It is at that stage the Indore Development Authority took into consideration all the relevant factors and thought it appropriate to refer all disputes pertaining to the land, which was subject matter of the auction for arbitration. Not an iota of material has been placed before us to indicate that the said decision of the Improvement Trust was either for extraneous consideration or had not been taken bona fide. In course of hearing of this appeal, not an iota of material was produced before us by respondent No. 1 at whose instance the High Court had entertained the public interest litigation petition to indicate that there was any infirmity in the auction that was held on 15-4-1981 and that the highest bid obtained was not genuine and the price obtained thereon is grossly low. Though a bald assertain had been made by respondent No. 1 that the normal price of the land would be much higher than the highest auction price which the appellant had offered but no substantive material had been produced in the High Court and nothing has been brought to the notice of this Court also. In this view of the matter we fail to understand as to how the High Court could come to the conclusion that there has been gross public injury by referring the matter to the Arbitrator and the Improvement Trust has acted beyond its jurisdiction by referring the dispute pertaining to the land in question to the Arbitrator. In our considered opinion the very act of entertaining the application as a public interest litigation at the behest of respondent No. 1, who has absolutely no interest in the transaction was improper and the High Court had in fact not adverted to the parameters for entertaining a petition as a public interest litigation. It may not be out of place to mention at this stage that two other auctions, similarly held were not assailed but it is the auction where the appellant was the highest bidder was only assailed for the reasons known to respondent No. 1. When the appellant had challenged the legality of the action of the competent authority in the matter of forfeiture of the deposit made, the competent authority thought it appropriate to refer the entire dispute pertaining to the land in question for arbitration and we see no infirmity with that decision nor that decision can be said to have been taken on some extraneous consideration. We also fail to appreciate the conclusion of the High Court on Section 21 of the Arbitration Act inasmuch as there is no bar for parties to a dispute to refer the dispute for arbitration instead of litigating in common law Courts. In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an Arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a Court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting materials in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the Arbitrator as well as the award of the competent Arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned Judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent Arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law. | 1[ds]In our considered opinion the very act of entertaining the application as a public interest litigation at the behest of respondent No. 1, who has absolutely no interest in the transaction was improper and the High Court had in fact not adverted to the parameters for entertaining a petition as a public interest litigation. It may not be out of place to mention at this stage that two other auctions, similarly held were not assailed but it is the auction where the appellant was the highest bidder was only assailed for the reasons known to respondent No. 1. When the appellant had challenged the legality of the action of the competent authority in the matter of forfeiture of the deposit made, the competent authority thought it appropriate to refer the entire dispute pertaining to the land in question for arbitration and we see no infirmity with that decision nor that decision can be said to have been taken on some extraneous consideration. We also fail to appreciate the conclusion of the High Court on Section 21 of the Arbitration Act inasmuch as there is no bar for parties to a dispute to refer the dispute for arbitration instead of litigating in common law Courts. In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an Arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a Court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting materials in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the Arbitrator as well as the award of the competent Arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned Judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent Arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law.At the outset it may be stated that the land in question was admittedly put to public auction and the appellant was the highest bidder and this fact has not been disputed at any stage. The further admitted position is that the appellant had deposited some amount but could not deposit the amount even though the bid of the appellant was accepted by the competent authority and forof the balance amount, the earlier amount deposited stood forfeited which however was challenged by the appellant. It is at that stage the Indore Development Authority took into consideration all the relevant factors and thought it appropriate to refer all disputes pertaining to the land, which was subject matter of the auction for arbitration. Not an iota of material has been placed before us to indicate that the said decision of the Improvement Trust was either for extraneous consideration or had not been taken bona fide. In course of hearing of this appeal, not an iota of material was produced before us by respondent No. 1 at whose instance the High Court had entertained the public interest litigation petition to indicate that there was any infirmity in the auction that was held onand that the highest bid obtained was not genuine and the price obtained thereon is grossly low. Though a bald assertain had been made by respondent No. 1 that the normal price of the land would be much higher than the highest auction price which the appellant had offered but no substantive material had been produced in the High Court and nothing has been brought to the notice of this Court also. In this view of the matter we fail to understand as to how the High Court could come to the conclusion that there has been gross public injury by referring the matter to the Arbitrator and the Improvement Trust has acted beyond its jurisdiction by referring the dispute pertaining to the land in question to the Arbitrator. | 1 | 2,497 | 801 | ### Instruction:
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and the law on the subject, came to the conclusion that there has been a gross violation of the aforesaid provision of the Arbitration Act and it is not known why respondent No. 1 (Indore Development Authority) elected to appoint the Arbitrator. The High Court also came to the further conclusion that the land would not have been disposed of even on lease basis through arbitration and the Indore Development Authority committed an error of law and consequent public injury by revival of a close issue by appointment of an Arbitrator and by its attempt benefited the present appellant at the cost of public revenue. With the aforesaid conclusion, the High Court quashed the resolution of the Indore Development Authority, referring the dispute to the Arbitrator as well as the award of the Arbitrator and passed certain consequential directions. The question that arises for consideration therefore, is whether in the facts and circumstances of the case, the High Court was justified in entertaining a writ petition in the garb of a public interest litigation and was justified even in setting aside the award of a competent Arbitrator which was not assailed under the provisions of the Arbitration Act but by filing a petition under Article 226 on the ground that the very decision of the Improvement Trust, referring the matter to the Arbitrator was illegal and has caused public injury. 4. At the outset it may be stated that the land in question was admittedly put to public auction and the appellant was the highest bidder and this fact has not been disputed at any stage. The further admitted position is that the appellant had deposited some amount but could not deposit the amount even though the bid of the appellant was accepted by the competent authority and for non-deposit of the balance amount, the earlier amount deposited stood forfeited which however was challenged by the appellant. It is at that stage the Indore Development Authority took into consideration all the relevant factors and thought it appropriate to refer all disputes pertaining to the land, which was subject matter of the auction for arbitration. Not an iota of material has been placed before us to indicate that the said decision of the Improvement Trust was either for extraneous consideration or had not been taken bona fide. In course of hearing of this appeal, not an iota of material was produced before us by respondent No. 1 at whose instance the High Court had entertained the public interest litigation petition to indicate that there was any infirmity in the auction that was held on 15-4-1981 and that the highest bid obtained was not genuine and the price obtained thereon is grossly low. Though a bald assertain had been made by respondent No. 1 that the normal price of the land would be much higher than the highest auction price which the appellant had offered but no substantive material had been produced in the High Court and nothing has been brought to the notice of this Court also. In this view of the matter we fail to understand as to how the High Court could come to the conclusion that there has been gross public injury by referring the matter to the Arbitrator and the Improvement Trust has acted beyond its jurisdiction by referring the dispute pertaining to the land in question to the Arbitrator. In our considered opinion the very act of entertaining the application as a public interest litigation at the behest of respondent No. 1, who has absolutely no interest in the transaction was improper and the High Court had in fact not adverted to the parameters for entertaining a petition as a public interest litigation. It may not be out of place to mention at this stage that two other auctions, similarly held were not assailed but it is the auction where the appellant was the highest bidder was only assailed for the reasons known to respondent No. 1. When the appellant had challenged the legality of the action of the competent authority in the matter of forfeiture of the deposit made, the competent authority thought it appropriate to refer the entire dispute pertaining to the land in question for arbitration and we see no infirmity with that decision nor that decision can be said to have been taken on some extraneous consideration. We also fail to appreciate the conclusion of the High Court on Section 21 of the Arbitration Act inasmuch as there is no bar for parties to a dispute to refer the dispute for arbitration instead of litigating in common law Courts. In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an Arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a Court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting materials in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the Arbitrator as well as the award of the competent Arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned Judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent Arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law.
### Response:
1
### Explanation:
In our considered opinion the very act of entertaining the application as a public interest litigation at the behest of respondent No. 1, who has absolutely no interest in the transaction was improper and the High Court had in fact not adverted to the parameters for entertaining a petition as a public interest litigation. It may not be out of place to mention at this stage that two other auctions, similarly held were not assailed but it is the auction where the appellant was the highest bidder was only assailed for the reasons known to respondent No. 1. When the appellant had challenged the legality of the action of the competent authority in the matter of forfeiture of the deposit made, the competent authority thought it appropriate to refer the entire dispute pertaining to the land in question for arbitration and we see no infirmity with that decision nor that decision can be said to have been taken on some extraneous consideration. We also fail to appreciate the conclusion of the High Court on Section 21 of the Arbitration Act inasmuch as there is no bar for parties to a dispute to refer the dispute for arbitration instead of litigating in common law Courts. In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an Arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a Court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting materials in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the Arbitrator as well as the award of the competent Arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned Judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent Arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law.At the outset it may be stated that the land in question was admittedly put to public auction and the appellant was the highest bidder and this fact has not been disputed at any stage. The further admitted position is that the appellant had deposited some amount but could not deposit the amount even though the bid of the appellant was accepted by the competent authority and forof the balance amount, the earlier amount deposited stood forfeited which however was challenged by the appellant. It is at that stage the Indore Development Authority took into consideration all the relevant factors and thought it appropriate to refer all disputes pertaining to the land, which was subject matter of the auction for arbitration. Not an iota of material has been placed before us to indicate that the said decision of the Improvement Trust was either for extraneous consideration or had not been taken bona fide. In course of hearing of this appeal, not an iota of material was produced before us by respondent No. 1 at whose instance the High Court had entertained the public interest litigation petition to indicate that there was any infirmity in the auction that was held onand that the highest bid obtained was not genuine and the price obtained thereon is grossly low. Though a bald assertain had been made by respondent No. 1 that the normal price of the land would be much higher than the highest auction price which the appellant had offered but no substantive material had been produced in the High Court and nothing has been brought to the notice of this Court also. In this view of the matter we fail to understand as to how the High Court could come to the conclusion that there has been gross public injury by referring the matter to the Arbitrator and the Improvement Trust has acted beyond its jurisdiction by referring the dispute pertaining to the land in question to the Arbitrator.
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S.B. Adityan Vs. S. Kandaswami and Ors | Then comes S. 99 which states that in certain circumstances besides these orders, certain other orders have also to be made by the Tribunal. The material portion of the Section is in these terms: S. 99 - (1) At the time of making an order under S. 98 the Tribunal shall also make an order - (a) Where any charge is made in the petition of any corrupt practice having been committed at the election, recording - (i) a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, any candidate or his agent at the election, and the nature of that corrupt practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that pratice; and ................................................................ 14. Mr. Sastri contended that under this Section the Tribunal has to record a finding whether a corrupt practice has been committed with the consent of any candidate. He said that when a candidate accepts a gift made to him with the object of inducing him to withdraw his candidature, he consents to the corrupt practice of bribery being committed and such a candidate is liable to be named under the Section. He added that in order that such a candidate can be so named a charge of the corrupt practice has to be made against him in the election petition. The result, therefore, according to Mr. Sastri, is that a candidate who consents to a bribe being paid to him to withdrawn his candidature is guilty of a corrupt practice and therefore an allegation of such a corrupt practice can be made in the petition if it is intended to have him named under S. 99 and once such an allegation is made in the petition, S. 82 (b) would be attracted and the candidate has to be made a party to the petition. He says such allegations were made against Meganathan and Muthu.15. This contention seems to us to be clearly fallacious. Section 99 does not purport to define a corrupt practice.The definition of corrupt practice occurs in S. 123 and the corrupt practice mentioned in S. 99 has to be a corrupt practice as so defined. A corrupt practice committed with the consent of a candidate is not in itself a new kind of corrupt practice. When S. 99 talks of a corrupt practice having been committed with the consent of a candidate it means a corrupt practice as defined in S. 123 having been committed, and a candidate having consented to its commission.The consent by a candidate to the commission of a corrupt practice by some one else whatever its consequences under the Act may be, is not itself a corrupt practice.Therefore, to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature, is not to say that he himself committed a corrupt practice. Such a statement in an election petition is not an allegation of corrupt practice against the consenting candidate. Hence S. 82 (b) does not require that he should be made a party to the petition. We wish to make it clear that we are not to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being committed.We do not think it necessary to say anything on that question in this case. 16. Mr. Sastri then said that the term gratification in S. 123 was very wide and would include the withdrawal of his candidature by a candidate to induce another candidate to stand at an election. He contended that the affording of such a gratification would amount to a corrupt practice within S. 123. He submitted that such corrupt practices had been alleged in the petition against Meganathan and Muthu and they should therefore have been made parties to the petition under S. 82 (b).We are wholly unable to agree that the withdrawal of his candidature by a candidate to induce another candidate to stand at an election would be gratification within S. 123. But assume it is so. That does not help the appellant at all.Here, there is no allegation in the petition that Meganathan and Muthu withdrew their candidature in order to induce the appellant to stand at the election, so there is no allegation in the petition of corrupt practices having been committed by them by so withdrawing their candidature. It was therefore not necessary to make Meganathan and Muthu parties to the petition under S. 82 (b). 17. Lastly, Mr. Sastri contended that S. 82 (b) talked of allegations of any corrupt practice and it therefore contemplated any allegation relating to or concerning, a corrupt practice. He said that the election petition contained allegations against Meganathan and Muthu, relating to a corrupt practice inasmuch as it stated that they accepted the gratifications paid to them to withdraw their candidature and actually withdrew such candidature. Hence, he said, S. 82 (b) required that they should have been made parties to the petition.We are of opinion that when S. 82 (b) talks of allegations of corrupt practice against a candidate it means allegations that a candidate has committed a corrupt practice. Allegations can hardly be said to be against one unless they impute some default to him. So allegations of corrupt practice against a candidate must mean that the candidate was guilty of corrupt practice.We are also unable to appreciate how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any corrupt practice, for we have earlier shown that the corrupt practice consists in the giving of the gift and not in the acceptance of it. | 0[ds]That S. 123 (1) does not contemplate the acceptance of a gift to be a corrupt practice is also apparent from a consideration of S. 124 of the Act which was deleted by an amendment made by Act XXVII of 1956. Under Cl. (3) of that section the receipt of or an agreement to receive a gift with substantially the same object as mentioned in S. 123 was a corrupt practice. As legislative provisions are not duplicated, such a receipt of or an agreement to receive a gratification was clearly not a corrupt practice within S. 123 (1) as it stood before the amendment. The amending Act has dropped the provision making acceptance and an agreement to accept a bribe, a corrupt practice but has made no change in S. 123 (1) to bring within it these cases. Section 123 (1) cannot therefore be read as including within the definition of a bribe contained in it an acceptance of it. By omitting S. 124(3) from the Act therefore the legislature intended that acceptance of a bribe was no longer to be treated as a corrupt practice. In view of this clear indication of intention it would be idle to enquire why the legislature thought fit to exclude the acceptance of a bribe from the definition of corrupt practice. If the omission is accidental, then it is for the legislature to take the necessary action in that behalf. We cannot allow any consideration of the reason for the omission to affect the plain meaning of the language used in S. 123(1)15. This contention seems to us to be clearly fallacious. Section 99 does not purport to define a corrupt practice.The definition of corrupt practice occurs in S. 123 and the corrupt practice mentioned in S. 99 has to be a corrupt practice as so defined. A corrupt practice committed with the consent of a candidate is not in itself a new kind of corrupt practice. When S. 99 talks of a corrupt practice having been committed with the consent of a candidate it means a corrupt practice as defined in S. 123 having been committed, and a candidate having consented to its commission.The consent by a candidate to the commission of a corrupt practice by some one else whatever its consequences under the Act may be, is not itself a corrupt practice.Therefore, to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature, is not to say that he himself committed a corrupt practice. Such a statement in an election petition is not an allegation of corrupt practice against the consenting candidate. Hence S. 82 (b) does not require that he should be made a party to the petition. We wish to make it clear that we are not to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being committed.We do not think it necessary to say anything on that question in this caseWe are of opinion that when S. 82 (b) talks of allegations of corrupt practice against a candidate it means allegations that a candidate has committed a corrupt practice. Allegations can hardly be said to be against one unless they impute some default to him. So allegations of corrupt practice against a candidate must mean that the candidate was guilty of corrupt practice.We are also unable to appreciate how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any corrupt practice, for we have earlier shown that the corrupt practice consists in the giving of the gift and not in the acceptance of it. | 0 | 3,146 | 699 | ### 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:
Then comes S. 99 which states that in certain circumstances besides these orders, certain other orders have also to be made by the Tribunal. The material portion of the Section is in these terms: S. 99 - (1) At the time of making an order under S. 98 the Tribunal shall also make an order - (a) Where any charge is made in the petition of any corrupt practice having been committed at the election, recording - (i) a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, any candidate or his agent at the election, and the nature of that corrupt practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that pratice; and ................................................................ 14. Mr. Sastri contended that under this Section the Tribunal has to record a finding whether a corrupt practice has been committed with the consent of any candidate. He said that when a candidate accepts a gift made to him with the object of inducing him to withdraw his candidature, he consents to the corrupt practice of bribery being committed and such a candidate is liable to be named under the Section. He added that in order that such a candidate can be so named a charge of the corrupt practice has to be made against him in the election petition. The result, therefore, according to Mr. Sastri, is that a candidate who consents to a bribe being paid to him to withdrawn his candidature is guilty of a corrupt practice and therefore an allegation of such a corrupt practice can be made in the petition if it is intended to have him named under S. 99 and once such an allegation is made in the petition, S. 82 (b) would be attracted and the candidate has to be made a party to the petition. He says such allegations were made against Meganathan and Muthu.15. This contention seems to us to be clearly fallacious. Section 99 does not purport to define a corrupt practice.The definition of corrupt practice occurs in S. 123 and the corrupt practice mentioned in S. 99 has to be a corrupt practice as so defined. A corrupt practice committed with the consent of a candidate is not in itself a new kind of corrupt practice. When S. 99 talks of a corrupt practice having been committed with the consent of a candidate it means a corrupt practice as defined in S. 123 having been committed, and a candidate having consented to its commission.The consent by a candidate to the commission of a corrupt practice by some one else whatever its consequences under the Act may be, is not itself a corrupt practice.Therefore, to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature, is not to say that he himself committed a corrupt practice. Such a statement in an election petition is not an allegation of corrupt practice against the consenting candidate. Hence S. 82 (b) does not require that he should be made a party to the petition. We wish to make it clear that we are not to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being committed.We do not think it necessary to say anything on that question in this case. 16. Mr. Sastri then said that the term gratification in S. 123 was very wide and would include the withdrawal of his candidature by a candidate to induce another candidate to stand at an election. He contended that the affording of such a gratification would amount to a corrupt practice within S. 123. He submitted that such corrupt practices had been alleged in the petition against Meganathan and Muthu and they should therefore have been made parties to the petition under S. 82 (b).We are wholly unable to agree that the withdrawal of his candidature by a candidate to induce another candidate to stand at an election would be gratification within S. 123. But assume it is so. That does not help the appellant at all.Here, there is no allegation in the petition that Meganathan and Muthu withdrew their candidature in order to induce the appellant to stand at the election, so there is no allegation in the petition of corrupt practices having been committed by them by so withdrawing their candidature. It was therefore not necessary to make Meganathan and Muthu parties to the petition under S. 82 (b). 17. Lastly, Mr. Sastri contended that S. 82 (b) talked of allegations of any corrupt practice and it therefore contemplated any allegation relating to or concerning, a corrupt practice. He said that the election petition contained allegations against Meganathan and Muthu, relating to a corrupt practice inasmuch as it stated that they accepted the gratifications paid to them to withdraw their candidature and actually withdrew such candidature. Hence, he said, S. 82 (b) required that they should have been made parties to the petition.We are of opinion that when S. 82 (b) talks of allegations of corrupt practice against a candidate it means allegations that a candidate has committed a corrupt practice. Allegations can hardly be said to be against one unless they impute some default to him. So allegations of corrupt practice against a candidate must mean that the candidate was guilty of corrupt practice.We are also unable to appreciate how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any corrupt practice, for we have earlier shown that the corrupt practice consists in the giving of the gift and not in the acceptance of it.
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0
### Explanation:
That S. 123 (1) does not contemplate the acceptance of a gift to be a corrupt practice is also apparent from a consideration of S. 124 of the Act which was deleted by an amendment made by Act XXVII of 1956. Under Cl. (3) of that section the receipt of or an agreement to receive a gift with substantially the same object as mentioned in S. 123 was a corrupt practice. As legislative provisions are not duplicated, such a receipt of or an agreement to receive a gratification was clearly not a corrupt practice within S. 123 (1) as it stood before the amendment. The amending Act has dropped the provision making acceptance and an agreement to accept a bribe, a corrupt practice but has made no change in S. 123 (1) to bring within it these cases. Section 123 (1) cannot therefore be read as including within the definition of a bribe contained in it an acceptance of it. By omitting S. 124(3) from the Act therefore the legislature intended that acceptance of a bribe was no longer to be treated as a corrupt practice. In view of this clear indication of intention it would be idle to enquire why the legislature thought fit to exclude the acceptance of a bribe from the definition of corrupt practice. If the omission is accidental, then it is for the legislature to take the necessary action in that behalf. We cannot allow any consideration of the reason for the omission to affect the plain meaning of the language used in S. 123(1)15. This contention seems to us to be clearly fallacious. Section 99 does not purport to define a corrupt practice.The definition of corrupt practice occurs in S. 123 and the corrupt practice mentioned in S. 99 has to be a corrupt practice as so defined. A corrupt practice committed with the consent of a candidate is not in itself a new kind of corrupt practice. When S. 99 talks of a corrupt practice having been committed with the consent of a candidate it means a corrupt practice as defined in S. 123 having been committed, and a candidate having consented to its commission.The consent by a candidate to the commission of a corrupt practice by some one else whatever its consequences under the Act may be, is not itself a corrupt practice.Therefore, to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature, is not to say that he himself committed a corrupt practice. Such a statement in an election petition is not an allegation of corrupt practice against the consenting candidate. Hence S. 82 (b) does not require that he should be made a party to the petition. We wish to make it clear that we are not to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being committed.We do not think it necessary to say anything on that question in this caseWe are of opinion that when S. 82 (b) talks of allegations of corrupt practice against a candidate it means allegations that a candidate has committed a corrupt practice. Allegations can hardly be said to be against one unless they impute some default to him. So allegations of corrupt practice against a candidate must mean that the candidate was guilty of corrupt practice.We are also unable to appreciate how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any corrupt practice, for we have earlier shown that the corrupt practice consists in the giving of the gift and not in the acceptance of it.
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Sri Gopal Jalan & Company Vs. Calcutta Stock Exchangeassociation Ltd | unit of issued capital continued to exist and was kept in suspense until another shareholder was found for it : see Naresh Chandra Sanyal v. Ramani Kanta, ILR (1945) 2 Cal 105 : (AIR 1949 Cal 360 ). We have to examine the present case on this basis.10.If, therefore, the shares which the Company forfeited have to be considered as shares already created and as continuing in existence as such inspite of the forfeiture, obviously they could not be allotted in the sense in which that word is understood in the Company law as we have earlier stated. In Morrison v. Trustees etc. Insurance Corporation, (1899) 68 LJ Ch 11 the articles of the Company gave power to forfeit shares for non-payment of calls and further provided that "any share so forfeited shall be deemed to be the property of the Company and the directors may sell, reallot or otherwise dispose of the same in such manner as they think fit." It was held that the Company could reissue the forfeited shares giving credit for the money already received in respect of them. The contention that the transaction amounted to the issue of a share at a discount was rejected. Vaughan-Williams L. J. observed, "I do not like the use of the word issue with reference to the transaction with regard to these shares. If they were being issued, the argument for the appellant might possibly be right; but they are not being issued. When we look at the articles we see that what takes place on a forfeiture of shares is that the power of transferring them passes from the original shareholders to the company and the Company can then transfer the shares subject to the same rights and liabilities as if they had not been forfeited." To the same effect are the observations of Bacon V. C. in In re, Exchange Banking Co. Ltd., Ramwells case (1881) 50 LJ 827. Quite clearly, the view well accepted in company Courts has been that issue of the forfeited shares was not allotment of them but only a sale. If it were not so, the forfeiture itself would be in valid as involving an illegal reduction of capital. If the re-issue of a forfeited share is only its sale, then it is not an allotment and that being so, no question of filing any return in respect of such re-issue arises.11. It remains now to deal with sub-s. (5) of S. 75. That does create a difficulty. It provides that no return need be filed in respect of allotment of shares forfeited for non-payment of calls. It gives rise to an argument that the Act contemplates an "allotment" of shares forfeited for non-payment of calls for otherwise it would not be necessary to provide that returns in respect of such allotment need not be field. It is said that that being so, the word "allotment" in S. 75(1) should be understood as including the issue of shares forfeited for other reasons, for there is no reason to make any distinction between shares forfeited for non-payment of calls and those forfeited for other reasons in the present context. This argument is no doubt legitimate. But having given it our best consideration; we have come to the conclusion that it should be rejected. We think that sub-sec. (5)owes its origin to a confusion of ideas. Apart from it, all other provisions of the Act clearly contemplate by allotment the creation of shares out of the authorized and unappropriated capital of the Company and not re-issue of shares already created by allotment in the manner aforesaid but subsequently forfeited. There would be no justification for altering the meaning of that word in any other part of the Act because of the solitary provision occurring in sub-s (5)of S. 75.The Companies Act in force before Act of 1956 was the Act of 1913. Section 104 (1) of that Act corresponded to S. 75 (1) of the present Act. In 1936 there were large amendments made in the 1913 Act. Prior to these amendments there was no provision in S. 104 of the Act of 1913 corresponding to sub-s. (5) of S. 75 of the present Act. Therefore, up to 1936 there was no reason to contend that the word" allotment" in S. 104 (1) could at all include the re-issue of a forfeited share. The 1936 amendment added sub-s. (4) to S. 104 and that sub-section contained provision similar to sub-s. (5) of S. 75 of the present Act. We do not think that it could be legitimately contended that by the amendment of 1936 the meaning of the word "allotment" in S. 104(1) was altered. That being so, the word "allotment" in S. 75 (1) must be understood without reference to sub-s. (5), in the same way as that word in S. 104(1) had to be understood without reference to sub-s. (4) of that section. It is safer to read sub-s. (5) of S. 75 as having been enacted ex abundanti cautela, that is to say, to prevent any argument being raised that a return has to be filed of the re-issued shares forfeited for non-payment of calls. We also agree with the view expressed in the High Court that the reason why only forfeiture for non-payment of calls was mentioned in S. 104 (4) of the Act of 1913 and S. 75 (5) of the present Act is that there has always been a great deal of doubt, as will appear from the difference of opinion in the Calcutta High Court to which we have earlier referred, as to whether there can be any forfeiture of shares except for non-payment of calls which latter case had been expressly provided for by the statute. The other cases of forfeiture had apparently not been mentioned because if they had been it could have been legitimately argued that the legislature considered such forfeiture valid and the legislature did not want to give support to that argument. | 0[ds]Nothing in this section shall apply to the issue and allotment by a company of shares which under the provisions of its articles were forfeited for non-payment of calls.We agree with the learned Judges of the High court that a re-issue of a forfeited share is not an allotment of share within S. 75 (1). The Word "allotment" has not been defined in the Companies Act either in our country or in England. But we think that the meaning of that word is well understood and no decision has been brought to our notice to indicate that any doubt has ever been entertained as to it.It is beyond doubt from the authorities to which we have earlier referred, and there are many more which could be cited to show the same position, that in Company law allotment means the appropriation out of the previously unappropriated capital of a company, of a certain number of shares to a person. Till such allotment the shares do not exist as such. It is on allotment in this sense that the shares come into existence. Learned counsel for the appellant has not been able to cite any case where the word allotment has been used to describe a transaction with regard to an existing share, that is , a share previously brought into existence by appropriation to a person out of the authorised capital. In every case the words allotment of shares have been used to indicate the creation of shares by appropriation out of the unappropriated share capital to a particular person. We find no reason why the word allotment in S. 75 should have a different sense. It is said that sub-sec. (5) of S. 75 furnishes such awill deal with that argument later. Our attention has not been drawn to any other provision in our Companies Act which would support the contention that the Act includes within the word allotment a transaction with a share after it has been first created by appropriation out of the authorised share capital to a particular individual. As the learned Judges of the High Court pointed out, S. 75 occurs in Part III of the Act which deals with "Prospectus And Allotment. And Other Matters Relating To Issue Of Shares Or Debentures". Sections 69 to 75 are classed under the sub-heading Allotment and the only kind of allotment that is dealt with in these sections is the appropriation of shares to individuals out of the unappropriated share capital of the company. In these circumstances it would be impossible to give to the word allotment in S. 75(1) a differentthe present case both sides proceeded on the basis that the articles of the Company dealing with forfeiture of shares which we have earlier set out are valid articles. In other words, it has not been disputed that the Company may validly forfeit shares in terms of these articles. We accept that basis and proceed on the assumption that it isclearly, the view well accepted in company Courts has been that issue of the forfeited shares was not allotment of them but only a sale. If it were not so, the forfeiture itself would be in valid as involving an illegal reduction of capital. If the re-issue of a forfeited share is only its sale, then it is not an allotment and that being so, no question of filing any return in respect of such re-issueargument is no doubt legitimate. But having given it our best consideration; we have come to the conclusion that it should be rejected. We think that sub-sec. (5)owes its origin to a confusion of ideas. Apart from it, all other provisions of the Act clearly contemplate by allotment the creation of shares out of the authorized and unappropriated capital of the Company and not re-issue of shares already created by allotment in the manner aforesaid but subsequently forfeited. There would be no justification for altering the meaning of that word in any other part of the Act because of the solitary provision occurring in sub-s (5)of S. 75.The Companies Act in force before Act of 1956 was the Act of 1913. Section 104 (1) of that Act corresponded to S. 75 (1) of the present Act. In 1936 there were large amendments made in the 1913 Act. Prior to these amendments there was no provision in S. 104 of the Act of 1913 corresponding to sub-s. (5) of S. 75 of the present Act. Therefore, up to 1936 there was no reason to contend that the word" allotment" in S. 104 (1) could at all include the re-issue of a forfeited share. The 1936 amendment added sub-s. (4) to S. 104 and that sub-section contained provision similar to sub-s. (5) of S. 75 of the present Act. We do not think that it could be legitimately contended that by the amendment of 1936 the meaning of the word "allotment" in S. 104(1) was altered. That being so, the word "allotment" in S. 75 (1) must be understood without reference to sub-s. (5), in the same way as that word in S. 104(1) had to be understood without reference to sub-s. (4) of that section. It is safer to read sub-s. (5) of S. 75 as having been enacted ex abundanti cautela, that is to say, to prevent any argument being raised that a return has to be filed of the re-issued shares forfeited for non-payment of calls. We also agree with the view expressed in the High Court that the reason why only forfeiture for non-payment of calls was mentioned in S. 104 (4) of the Act of 1913 and S. 75 (5) of the present Act is that there has always been a great deal of doubt, as will appear from the difference of opinion in the Calcutta High Court to which we have earlier referred, as to whether there can be any forfeiture of shares except for non-payment of calls which latter case had been expressly provided for by the statute. The other cases of forfeiture had apparently not been mentioned because if they had been it could have been legitimately argued that the legislature considered such forfeiture valid and the legislature did not want to give support to that argument. | 0 | 3,375 | 1,151 | ### 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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unit of issued capital continued to exist and was kept in suspense until another shareholder was found for it : see Naresh Chandra Sanyal v. Ramani Kanta, ILR (1945) 2 Cal 105 : (AIR 1949 Cal 360 ). We have to examine the present case on this basis.10.If, therefore, the shares which the Company forfeited have to be considered as shares already created and as continuing in existence as such inspite of the forfeiture, obviously they could not be allotted in the sense in which that word is understood in the Company law as we have earlier stated. In Morrison v. Trustees etc. Insurance Corporation, (1899) 68 LJ Ch 11 the articles of the Company gave power to forfeit shares for non-payment of calls and further provided that "any share so forfeited shall be deemed to be the property of the Company and the directors may sell, reallot or otherwise dispose of the same in such manner as they think fit." It was held that the Company could reissue the forfeited shares giving credit for the money already received in respect of them. The contention that the transaction amounted to the issue of a share at a discount was rejected. Vaughan-Williams L. J. observed, "I do not like the use of the word issue with reference to the transaction with regard to these shares. If they were being issued, the argument for the appellant might possibly be right; but they are not being issued. When we look at the articles we see that what takes place on a forfeiture of shares is that the power of transferring them passes from the original shareholders to the company and the Company can then transfer the shares subject to the same rights and liabilities as if they had not been forfeited." To the same effect are the observations of Bacon V. C. in In re, Exchange Banking Co. Ltd., Ramwells case (1881) 50 LJ 827. Quite clearly, the view well accepted in company Courts has been that issue of the forfeited shares was not allotment of them but only a sale. If it were not so, the forfeiture itself would be in valid as involving an illegal reduction of capital. If the re-issue of a forfeited share is only its sale, then it is not an allotment and that being so, no question of filing any return in respect of such re-issue arises.11. It remains now to deal with sub-s. (5) of S. 75. That does create a difficulty. It provides that no return need be filed in respect of allotment of shares forfeited for non-payment of calls. It gives rise to an argument that the Act contemplates an "allotment" of shares forfeited for non-payment of calls for otherwise it would not be necessary to provide that returns in respect of such allotment need not be field. It is said that that being so, the word "allotment" in S. 75(1) should be understood as including the issue of shares forfeited for other reasons, for there is no reason to make any distinction between shares forfeited for non-payment of calls and those forfeited for other reasons in the present context. This argument is no doubt legitimate. But having given it our best consideration; we have come to the conclusion that it should be rejected. We think that sub-sec. (5)owes its origin to a confusion of ideas. Apart from it, all other provisions of the Act clearly contemplate by allotment the creation of shares out of the authorized and unappropriated capital of the Company and not re-issue of shares already created by allotment in the manner aforesaid but subsequently forfeited. There would be no justification for altering the meaning of that word in any other part of the Act because of the solitary provision occurring in sub-s (5)of S. 75.The Companies Act in force before Act of 1956 was the Act of 1913. Section 104 (1) of that Act corresponded to S. 75 (1) of the present Act. In 1936 there were large amendments made in the 1913 Act. Prior to these amendments there was no provision in S. 104 of the Act of 1913 corresponding to sub-s. (5) of S. 75 of the present Act. Therefore, up to 1936 there was no reason to contend that the word" allotment" in S. 104 (1) could at all include the re-issue of a forfeited share. The 1936 amendment added sub-s. (4) to S. 104 and that sub-section contained provision similar to sub-s. (5) of S. 75 of the present Act. We do not think that it could be legitimately contended that by the amendment of 1936 the meaning of the word "allotment" in S. 104(1) was altered. That being so, the word "allotment" in S. 75 (1) must be understood without reference to sub-s. (5), in the same way as that word in S. 104(1) had to be understood without reference to sub-s. (4) of that section. It is safer to read sub-s. (5) of S. 75 as having been enacted ex abundanti cautela, that is to say, to prevent any argument being raised that a return has to be filed of the re-issued shares forfeited for non-payment of calls. We also agree with the view expressed in the High Court that the reason why only forfeiture for non-payment of calls was mentioned in S. 104 (4) of the Act of 1913 and S. 75 (5) of the present Act is that there has always been a great deal of doubt, as will appear from the difference of opinion in the Calcutta High Court to which we have earlier referred, as to whether there can be any forfeiture of shares except for non-payment of calls which latter case had been expressly provided for by the statute. The other cases of forfeiture had apparently not been mentioned because if they had been it could have been legitimately argued that the legislature considered such forfeiture valid and the legislature did not want to give support to that argument.
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### Explanation:
of a forfeited share is not an allotment of share within S. 75 (1). The Word "allotment" has not been defined in the Companies Act either in our country or in England. But we think that the meaning of that word is well understood and no decision has been brought to our notice to indicate that any doubt has ever been entertained as to it.It is beyond doubt from the authorities to which we have earlier referred, and there are many more which could be cited to show the same position, that in Company law allotment means the appropriation out of the previously unappropriated capital of a company, of a certain number of shares to a person. Till such allotment the shares do not exist as such. It is on allotment in this sense that the shares come into existence. Learned counsel for the appellant has not been able to cite any case where the word allotment has been used to describe a transaction with regard to an existing share, that is , a share previously brought into existence by appropriation to a person out of the authorised capital. In every case the words allotment of shares have been used to indicate the creation of shares by appropriation out of the unappropriated share capital to a particular person. We find no reason why the word allotment in S. 75 should have a different sense. It is said that sub-sec. (5) of S. 75 furnishes such awill deal with that argument later. Our attention has not been drawn to any other provision in our Companies Act which would support the contention that the Act includes within the word allotment a transaction with a share after it has been first created by appropriation out of the authorised share capital to a particular individual. As the learned Judges of the High Court pointed out, S. 75 occurs in Part III of the Act which deals with "Prospectus And Allotment. And Other Matters Relating To Issue Of Shares Or Debentures". Sections 69 to 75 are classed under the sub-heading Allotment and the only kind of allotment that is dealt with in these sections is the appropriation of shares to individuals out of the unappropriated share capital of the company. In these circumstances it would be impossible to give to the word allotment in S. 75(1) a differentthe present case both sides proceeded on the basis that the articles of the Company dealing with forfeiture of shares which we have earlier set out are valid articles. In other words, it has not been disputed that the Company may validly forfeit shares in terms of these articles. We accept that basis and proceed on the assumption that it isclearly, the view well accepted in company Courts has been that issue of the forfeited shares was not allotment of them but only a sale. If it were not so, the forfeiture itself would be in valid as involving an illegal reduction of capital. If the re-issue of a forfeited share is only its sale, then it is not an allotment and that being so, no question of filing any return in respect of such re-issueargument is no doubt legitimate. But having given it our best consideration; we have come to the conclusion that it should be rejected. We think that sub-sec. (5)owes its origin to a confusion of ideas. Apart from it, all other provisions of the Act clearly contemplate by allotment the creation of shares out of the authorized and unappropriated capital of the Company and not re-issue of shares already created by allotment in the manner aforesaid but subsequently forfeited. There would be no justification for altering the meaning of that word in any other part of the Act because of the solitary provision occurring in sub-s (5)of S. 75.The Companies Act in force before Act of 1956 was the Act of 1913. Section 104 (1) of that Act corresponded to S. 75 (1) of the present Act. In 1936 there were large amendments made in the 1913 Act. Prior to these amendments there was no provision in S. 104 of the Act of 1913 corresponding to sub-s. (5) of S. 75 of the present Act. Therefore, up to 1936 there was no reason to contend that the word" allotment" in S. 104 (1) could at all include the re-issue of a forfeited share. The 1936 amendment added sub-s. (4) to S. 104 and that sub-section contained provision similar to sub-s. (5) of S. 75 of the present Act. We do not think that it could be legitimately contended that by the amendment of 1936 the meaning of the word "allotment" in S. 104(1) was altered. That being so, the word "allotment" in S. 75 (1) must be understood without reference to sub-s. (5), in the same way as that word in S. 104(1) had to be understood without reference to sub-s. (4) of that section. It is safer to read sub-s. (5) of S. 75 as having been enacted ex abundanti cautela, that is to say, to prevent any argument being raised that a return has to be filed of the re-issued shares forfeited for non-payment of calls. We also agree with the view expressed in the High Court that the reason why only forfeiture for non-payment of calls was mentioned in S. 104 (4) of the Act of 1913 and S. 75 (5) of the present Act is that there has always been a great deal of doubt, as will appear from the difference of opinion in the Calcutta High Court to which we have earlier referred, as to whether there can be any forfeiture of shares except for non-payment of calls which latter case had been expressly provided for by the statute. The other cases of forfeiture had apparently not been mentioned because if they had been it could have been legitimately argued that the legislature considered such forfeiture valid and the legislature did not want to give support to that argument.
|
Dr. Vijayakumaran C.P.V Vs. Central University of Kerala & Ors. | order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex¬facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules. As a matter of fact, the Internal Complaints Committee had recommended to proceed against the appellant appropriately but the Executive Council proceeded under the mistaken belief that in terms of clause 7 of the contract, it was open to the Executive Council to terminate the services of the appellant without a formal regular inquiry as per the service rules. Indisputably, in the present case, the Internal Complaints Committee was constituted in reference to the complaints received from the girl students about the alleged misconduct committed by the appellant, which allegations were duly inquired into in a formal inquiry after giving opportunity to the appellant and culminated with the report recording finding against the appellant with recommendation to proceed against him. 10. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, the 2013 Act). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of sexual harassment defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more. 11. A priori, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex¬facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted backwages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law. We do not intend to issue any direction in that regard keeping in mind the principle underlying the exposition of the Constitution Bench in Managing Director, ECIL, Hyderabad & Ors. vs. R. Karunakar & Ors. (1993) 4 SCC 727 . In that case, the Court was called upon to decide as to what should be the incidental order to be passed by the Court in case after following necessary procedure, the Court/Tribunal was to set aside the order of punishment. The Court observed thus: ¬ 31. ………………. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back¬wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. (emphasis supplied) Following the principle underlying the above quoted exposition, we proceed to hold that even though the impugned order of termination dated 30.11.2017 is set aside in terms of this judgment, as a result of which the appellant would stand reinstated, but at the same time, due to flawed approach of the respondent No. 1 – University, the entitlement to grant backwages is a matter which will be subject to the outcome of further action to be taken by the University as per the service rules and in accordance with law. | 1[ds]Going by the tenor of the stated order, it is incomprehensible as to how the same can be construed as termination simplictor when it has made the report of the inquiry conducted by the Internal Complaints Committee and the decision of the Executive Council dated 30.11.2017 as the foundation, in addition to the ground of academic performance. Had it been a case of mere unsatisfactory academic performance, the situation would have been entirely different. The stated order not only adverts to the report of the Internal Complaints Committee, but also the decision taken by the Executive Council, which in turn highlights the fact that the appellant had to face an inquiry before the Committee in reference to the allegations of serious misconduct committed by him. Notably, the appellant has been subjected to a formal inquiry before the Committee constituted under statutory regulations to inquire into the allegations bordering on moral turpitude or misconduct committed by the appellant and that inquiry culminated in a finding of guilt against the appellant with recommendation of the Executive Council to proceed against the appellant as per the service rules. In such a situation, it is unfathomable to construe the order as order of termination simplicitor8. It is well¬established position that the material which amounts to stigma need not be contained in the order of termination of the probationer, but might be contained in any document referred to in the termination order. Such reference may inevitably affect the future prospects of the incumbent and if so, the order must be construed as ex-facie stigmatic order of terminationIn the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex¬facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules. As a matter of fact, the Internal Complaints Committee had recommended to proceed against the appellant appropriately but the Executive Council proceeded under the mistaken belief that in terms of clause 7 of the contract, it was open to the Executive Council to terminate the services of the appellant without a formal regular inquiry as per the service rules. Indisputably, in the present case, the Internal Complaints Committee was constituted in reference to the complaints received from the girl students about the alleged misconduct committed by the appellant, which allegations were duly inquired into in a formal inquiry after giving opportunity to the appellant and culminated with the report recording finding against the appellant with recommendation to proceed against him10. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, the 2013 Act). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of sexual harassment defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more11. A priori, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex¬facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted backwages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law. We do not intend to issue any direction in that regard keeping in mind the principle underlying the exposition of the Constitution Bench in Managing Director, ECIL, Hyderabad & Ors. vs. R. Karunakar & Ors. (1993) 4 SCC 727 . In that case, the Court was called upon to decide as to what should be the incidental order to be passed by the Court in case after following necessary procedure, the Court/Tribunal was to set aside the order of punishment. The Court observed thus: ¬Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to theauthority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back¬wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in lawFollowing the principle underlying the above quoted exposition, we proceed to hold that even though the impugned order of termination dated 30.11.2017 is set aside in terms of this judgment, as a result of which the appellant would stand reinstated, but at the same time, due to flawed approach of the respondent No. 1 – University, the entitlement to grant backwages is a matter which will be subject to the outcome of further action to be taken by the University as per the service rules and in accordance with law9. In the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC 520 , the Court observed thus: ¬21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. | 1 | 4,270 | 1,404 | ### 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:
order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex¬facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules. As a matter of fact, the Internal Complaints Committee had recommended to proceed against the appellant appropriately but the Executive Council proceeded under the mistaken belief that in terms of clause 7 of the contract, it was open to the Executive Council to terminate the services of the appellant without a formal regular inquiry as per the service rules. Indisputably, in the present case, the Internal Complaints Committee was constituted in reference to the complaints received from the girl students about the alleged misconduct committed by the appellant, which allegations were duly inquired into in a formal inquiry after giving opportunity to the appellant and culminated with the report recording finding against the appellant with recommendation to proceed against him. 10. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, the 2013 Act). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of sexual harassment defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more. 11. A priori, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex¬facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted backwages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law. We do not intend to issue any direction in that regard keeping in mind the principle underlying the exposition of the Constitution Bench in Managing Director, ECIL, Hyderabad & Ors. vs. R. Karunakar & Ors. (1993) 4 SCC 727 . In that case, the Court was called upon to decide as to what should be the incidental order to be passed by the Court in case after following necessary procedure, the Court/Tribunal was to set aside the order of punishment. The Court observed thus: ¬ 31. ………………. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back¬wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. (emphasis supplied) Following the principle underlying the above quoted exposition, we proceed to hold that even though the impugned order of termination dated 30.11.2017 is set aside in terms of this judgment, as a result of which the appellant would stand reinstated, but at the same time, due to flawed approach of the respondent No. 1 – University, the entitlement to grant backwages is a matter which will be subject to the outcome of further action to be taken by the University as per the service rules and in accordance with law.
### Response:
1
### Explanation:
issued only after subjecting the incumbent to a regular inquiry as per the service rules. As a matter of fact, the Internal Complaints Committee had recommended to proceed against the appellant appropriately but the Executive Council proceeded under the mistaken belief that in terms of clause 7 of the contract, it was open to the Executive Council to terminate the services of the appellant without a formal regular inquiry as per the service rules. Indisputably, in the present case, the Internal Complaints Committee was constituted in reference to the complaints received from the girl students about the alleged misconduct committed by the appellant, which allegations were duly inquired into in a formal inquiry after giving opportunity to the appellant and culminated with the report recording finding against the appellant with recommendation to proceed against him10. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), it was obligatory on the Administration to refer such complaints to the Internal Committee or the Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short, the 2013 Act). Upon receipt of such complaint, an inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act. The procedure for conducting such inquiry has also been amplified in the 2015 Regulations. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of sexual harassment defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by other actions as per law. In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence. We say no more11. A priori, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex¬facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted backwages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law. We do not intend to issue any direction in that regard keeping in mind the principle underlying the exposition of the Constitution Bench in Managing Director, ECIL, Hyderabad & Ors. vs. R. Karunakar & Ors. (1993) 4 SCC 727 . In that case, the Court was called upon to decide as to what should be the incidental order to be passed by the Court in case after following necessary procedure, the Court/Tribunal was to set aside the order of punishment. The Court observed thus: ¬Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to theauthority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back¬wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in lawFollowing the principle underlying the above quoted exposition, we proceed to hold that even though the impugned order of termination dated 30.11.2017 is set aside in terms of this judgment, as a result of which the appellant would stand reinstated, but at the same time, due to flawed approach of the respondent No. 1 – University, the entitlement to grant backwages is a matter which will be subject to the outcome of further action to be taken by the University as per the service rules and in accordance with law9. In the case of Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC 520 , the Court observed thus: ¬21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
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BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY & ORS Vs. RAMA KANT SINGH | a decree within the meaning of section – 2 of the Code of Civil Procedure, 1908 of the principal Court of original jurisdiction within the local limits whereof the award or the interim award has been made and shall be executed accordingly. (emphasis added) 13. Revision.- (1) The High Court may, suo motu at any time or on an application made to it within three months from the date on which the award or interim award is made or reviewed under this Act, by any party aggrieved by the award or interim award so made or reviewed, call for the record of any case in which an award or interim award has been made or as the case may be reviewed and if the Tribunal appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. (2) For the purpose of exercising its powers of revision under this section, ? the High Court shall have the same powers as it has, and as far as may be, follow the same procedure as it follows, under the Code of Civil Procedure, 1908 while exercising its powers of revision under section-115 of the Code and for that purpose the Tribunal shall be deemed to be a Court subordinate to it. 18. Extension of period of limitation in certain cases. – The Tribunal may admit a reference under sub--section (2) or entertain an application for review under sub--section (1) of Section 11 or for revision under sub--section (1) of Section 12 after the period of limitation laid down in sub--section (1) of Section 8, sub--section (2) of section 11 or as the case may be, sub--section (1) of Section 12 if the party satisfies the Tribunal that the party had sufficient cause for not making the reference, or as the case may be, the application for review or revision within such period. 9. In this case, admittedly, there is no arbitration clause in the agreement between the parties. Sub--section (1) of Section 9 provides that even if there is no arbitration clause, the dispute arising between the parties to the contract must be referred to the Arbitration Tribunal. The dispute has been defined under Clause (e) of Section 2 of the 2008 Act. It means any difference relating to any claim arising out of the execution or non-execution of the whole or a part of a works contract, including the dispute regarding rescission thereof. Section 22 of the 2008 Act starts with a non-obstante clause which provides that notwithstanding anything contained in any other law, rule, order, scheme, or contract, any dispute as defined under section (e) of Section 2 shall be regulated by the provisions of the 2008 Act in the absence of an arbitration clause in the agreement. 10. In view of Section 8 of the 2008 Act, if any of the provisions of the 2008 Act are in conflict with the 1996 Act, the latter shall prevail to the extent of the conflict. In the present case, as there is no arbitration clause in the agreement between the parties, the provisions of the 1996 Act will have no application. Therefore, the reference to the Arbitration Tribunal will be governed by the 2008 Act. 11. As noted earlier, under sub--section (1) of Section 9 of the 2008 Act, the period of limitation is of one year from the date on which the dispute has arisen, which date in the present case is 8th June 2010, when the first appellant terminated the agreement. 12. As the 2008 Act provides for a specific period of limitation, Article 137 of the schedule in the 1963 Act will not apply. To that extent, the Arbitration Tribunal has committed an error. Under Section 18 of the 2008 Act, the Arbitration Tribunal has the power to condone the delay. The High Court recorded a finding that as the representation made by the respondent against the order of termination of the contract was kept pending for an inordinately long time and was not at all decided, the delay was explained by the respondent. The High Court, by recording the said finding in paragraph 10 of the impugned Judgment, held that sufficient cause was made out by the respondent for the delay. As observed earlier, the Arbitration Tribunal has the power to condone the delay in making a reference. Therefore, under Article 136 of the Constitution of India, this is not a fit case to interfere with the award on the ground that the reference was barred by limitation. 13. On merits, we find that the Arbitration Tribunal has interpreted various clauses of the agreement between the parties and held that there was no provision therein to forfeit the earnest money as well as the security deposit. The Arbitration Tribunal held that the first appellant had made only a part payment of the 4th bill. The Arbitration Tribunal held that an amount of Rs. 27,94,990/-- (Rupees twentyseven lakh ninety-four thousand nine hundred ninety only) was not paid as per the 4th bill. 14. As can be seen from Section 13 of the 2008 Act, the scope of revision is limited. A perusal of the judgment of the High Court shows that it has considered and interpreted some of the clauses in the agreement between the parties. High Court found that the Arbitration Tribunal had the jurisdiction to make the award and that the award does not suffer from manifest illegality and material irregularity. The High Court rightly found that the scope for interference with the award of the Arbitration Tribunal in revisional jurisdiction was very narrow. In the absence of any perversity, the High Court could not have given a different interpretation to the clauses in the agreement from the one provided by the Arbitration Tribunal. | 1[ds]9. In this case, admittedly, there is no arbitration clause in the agreement between the parties. Sub--section (1) of Section 9 provides that even if there is no arbitration clause, the dispute arising between the parties to the contract must be referred to the Arbitration Tribunal. The dispute has been defined under Clause (e) of Section 2 of the 2008 Act. It means any difference relating to any claim arising out of the execution or non-execution of the whole or a part of a works contract, including the dispute regarding rescission thereof. Section 22 of the 2008 Act starts with a non-obstante clause which provides that notwithstanding anything contained in any other law, rule, order, scheme, or contract, any dispute as defined under section (e) of Section 2 shall be regulated by the provisions of the 2008 Act in the absence of an arbitration clause in the agreement.10. In view of Section 8 of the 2008 Act, if any of the provisions of the 2008 Act are in conflict with the 1996 Act, the latter shall prevail to the extent of the conflict. In the present case, as there is no arbitration clause in the agreement between the parties, the provisions of the 1996 Act will have no application. Therefore, the reference to the Arbitration Tribunal will be governed by the 2008 Act.11. As noted earlier, under sub--section (1) of Section 9 of the 2008 Act, the period of limitation is of one year from the date on which the dispute has arisen, which date in the present case is 8th June 2010, when the first appellant terminated the agreement.12. As the 2008 Act provides for a specific period of limitation, Article 137 of the schedule in the 1963 Act will not apply. To that extent, the Arbitration Tribunal has committed an error. Under Section 18 of the 2008 Act, the Arbitration Tribunal has the power to condone the delay. The High Court recorded a finding that as the representation made by the respondent against the order of termination of the contract was kept pending for an inordinately long time and was not at all decided, the delay was explained by the respondent. The High Court, by recording the said finding in paragraph 10 of the impugned Judgment, held that sufficient cause was made out by the respondent for the delay. As observed earlier, the Arbitration Tribunal has the power to condone the delay in making a reference. Therefore, under Article 136 of the Constitution of India, this is not a fit case to interfere with the award on the ground that the reference was barred by limitation.13. On merits, we find that the Arbitration Tribunal has interpreted various clauses of the agreement between the parties and held that there was no provision therein to forfeit the earnest money as well as the security deposit. The Arbitration Tribunal held that the first appellant had made only a part payment of the 4th bill. The Arbitration Tribunal held that an amount of Rs. 27,94,990/-- (Rupees twentyseven lakh ninety-four thousand nine hundred ninety only) was not paid as per the 4th bill.14. As can be seen from Section 13 of the 2008 Act, the scope of revision is limited. A perusal of the judgment of the High Court shows that it has considered and interpreted some of the clauses in the agreement between the parties. High Court found that the Arbitration Tribunal had the jurisdiction to make the award and that the award does not suffer from manifest illegality and material irregularity. The High Court rightly found that the scope for interference with the award of the Arbitration Tribunal in revisional jurisdiction was very narrow. In the absence of any perversity, the High Court could not have given a different interpretation to the clauses in the agreement from the one provided by the Arbitration Tribunal. | 1 | 2,816 | 718 | ### 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:
a decree within the meaning of section – 2 of the Code of Civil Procedure, 1908 of the principal Court of original jurisdiction within the local limits whereof the award or the interim award has been made and shall be executed accordingly. (emphasis added) 13. Revision.- (1) The High Court may, suo motu at any time or on an application made to it within three months from the date on which the award or interim award is made or reviewed under this Act, by any party aggrieved by the award or interim award so made or reviewed, call for the record of any case in which an award or interim award has been made or as the case may be reviewed and if the Tribunal appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. (2) For the purpose of exercising its powers of revision under this section, ? the High Court shall have the same powers as it has, and as far as may be, follow the same procedure as it follows, under the Code of Civil Procedure, 1908 while exercising its powers of revision under section-115 of the Code and for that purpose the Tribunal shall be deemed to be a Court subordinate to it. 18. Extension of period of limitation in certain cases. – The Tribunal may admit a reference under sub--section (2) or entertain an application for review under sub--section (1) of Section 11 or for revision under sub--section (1) of Section 12 after the period of limitation laid down in sub--section (1) of Section 8, sub--section (2) of section 11 or as the case may be, sub--section (1) of Section 12 if the party satisfies the Tribunal that the party had sufficient cause for not making the reference, or as the case may be, the application for review or revision within such period. 9. In this case, admittedly, there is no arbitration clause in the agreement between the parties. Sub--section (1) of Section 9 provides that even if there is no arbitration clause, the dispute arising between the parties to the contract must be referred to the Arbitration Tribunal. The dispute has been defined under Clause (e) of Section 2 of the 2008 Act. It means any difference relating to any claim arising out of the execution or non-execution of the whole or a part of a works contract, including the dispute regarding rescission thereof. Section 22 of the 2008 Act starts with a non-obstante clause which provides that notwithstanding anything contained in any other law, rule, order, scheme, or contract, any dispute as defined under section (e) of Section 2 shall be regulated by the provisions of the 2008 Act in the absence of an arbitration clause in the agreement. 10. In view of Section 8 of the 2008 Act, if any of the provisions of the 2008 Act are in conflict with the 1996 Act, the latter shall prevail to the extent of the conflict. In the present case, as there is no arbitration clause in the agreement between the parties, the provisions of the 1996 Act will have no application. Therefore, the reference to the Arbitration Tribunal will be governed by the 2008 Act. 11. As noted earlier, under sub--section (1) of Section 9 of the 2008 Act, the period of limitation is of one year from the date on which the dispute has arisen, which date in the present case is 8th June 2010, when the first appellant terminated the agreement. 12. As the 2008 Act provides for a specific period of limitation, Article 137 of the schedule in the 1963 Act will not apply. To that extent, the Arbitration Tribunal has committed an error. Under Section 18 of the 2008 Act, the Arbitration Tribunal has the power to condone the delay. The High Court recorded a finding that as the representation made by the respondent against the order of termination of the contract was kept pending for an inordinately long time and was not at all decided, the delay was explained by the respondent. The High Court, by recording the said finding in paragraph 10 of the impugned Judgment, held that sufficient cause was made out by the respondent for the delay. As observed earlier, the Arbitration Tribunal has the power to condone the delay in making a reference. Therefore, under Article 136 of the Constitution of India, this is not a fit case to interfere with the award on the ground that the reference was barred by limitation. 13. On merits, we find that the Arbitration Tribunal has interpreted various clauses of the agreement between the parties and held that there was no provision therein to forfeit the earnest money as well as the security deposit. The Arbitration Tribunal held that the first appellant had made only a part payment of the 4th bill. The Arbitration Tribunal held that an amount of Rs. 27,94,990/-- (Rupees twentyseven lakh ninety-four thousand nine hundred ninety only) was not paid as per the 4th bill. 14. As can be seen from Section 13 of the 2008 Act, the scope of revision is limited. A perusal of the judgment of the High Court shows that it has considered and interpreted some of the clauses in the agreement between the parties. High Court found that the Arbitration Tribunal had the jurisdiction to make the award and that the award does not suffer from manifest illegality and material irregularity. The High Court rightly found that the scope for interference with the award of the Arbitration Tribunal in revisional jurisdiction was very narrow. In the absence of any perversity, the High Court could not have given a different interpretation to the clauses in the agreement from the one provided by the Arbitration Tribunal.
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### Explanation:
9. In this case, admittedly, there is no arbitration clause in the agreement between the parties. Sub--section (1) of Section 9 provides that even if there is no arbitration clause, the dispute arising between the parties to the contract must be referred to the Arbitration Tribunal. The dispute has been defined under Clause (e) of Section 2 of the 2008 Act. It means any difference relating to any claim arising out of the execution or non-execution of the whole or a part of a works contract, including the dispute regarding rescission thereof. Section 22 of the 2008 Act starts with a non-obstante clause which provides that notwithstanding anything contained in any other law, rule, order, scheme, or contract, any dispute as defined under section (e) of Section 2 shall be regulated by the provisions of the 2008 Act in the absence of an arbitration clause in the agreement.10. In view of Section 8 of the 2008 Act, if any of the provisions of the 2008 Act are in conflict with the 1996 Act, the latter shall prevail to the extent of the conflict. In the present case, as there is no arbitration clause in the agreement between the parties, the provisions of the 1996 Act will have no application. Therefore, the reference to the Arbitration Tribunal will be governed by the 2008 Act.11. As noted earlier, under sub--section (1) of Section 9 of the 2008 Act, the period of limitation is of one year from the date on which the dispute has arisen, which date in the present case is 8th June 2010, when the first appellant terminated the agreement.12. As the 2008 Act provides for a specific period of limitation, Article 137 of the schedule in the 1963 Act will not apply. To that extent, the Arbitration Tribunal has committed an error. Under Section 18 of the 2008 Act, the Arbitration Tribunal has the power to condone the delay. The High Court recorded a finding that as the representation made by the respondent against the order of termination of the contract was kept pending for an inordinately long time and was not at all decided, the delay was explained by the respondent. The High Court, by recording the said finding in paragraph 10 of the impugned Judgment, held that sufficient cause was made out by the respondent for the delay. As observed earlier, the Arbitration Tribunal has the power to condone the delay in making a reference. Therefore, under Article 136 of the Constitution of India, this is not a fit case to interfere with the award on the ground that the reference was barred by limitation.13. On merits, we find that the Arbitration Tribunal has interpreted various clauses of the agreement between the parties and held that there was no provision therein to forfeit the earnest money as well as the security deposit. The Arbitration Tribunal held that the first appellant had made only a part payment of the 4th bill. The Arbitration Tribunal held that an amount of Rs. 27,94,990/-- (Rupees twentyseven lakh ninety-four thousand nine hundred ninety only) was not paid as per the 4th bill.14. As can be seen from Section 13 of the 2008 Act, the scope of revision is limited. A perusal of the judgment of the High Court shows that it has considered and interpreted some of the clauses in the agreement between the parties. High Court found that the Arbitration Tribunal had the jurisdiction to make the award and that the award does not suffer from manifest illegality and material irregularity. The High Court rightly found that the scope for interference with the award of the Arbitration Tribunal in revisional jurisdiction was very narrow. In the absence of any perversity, the High Court could not have given a different interpretation to the clauses in the agreement from the one provided by the Arbitration Tribunal.
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Siddharam Satlingappa Mhetre Vs. State Of Maharashtra | in Kalyani, which is the binding authority on the point. 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and Ors., IV (2001) SLT 359=(2001) 4 SCC 448 , a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. 146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, I (2005) SLT 45=(2005) 2 SCC 673 , has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. 147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Ors., VIII (2008) SLT 695=(2008) 10 SCC 1 , again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Ors. v. Umadevi (3) and Ors., III (2006) SLT 539=(2006) 4 SCC 1 , is binding on all Courts including this Court till the same is overruled by a Larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the Court observed as under: We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even Larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the Courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 148. In Subhash Chandra and Anr. v.Delhi Subordinate Services Selection Board & Ors., I (2010) SLT 372=(2009) 15 SCC 458 , this Court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The Court in para 110 observed as under: Should we consider S. Pushpa v. Sivachanmugavelu, (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College, (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in Clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand & Ors., VIII (2008) SLT 695=(2008) 10 SCC 1 , therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio. 149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbias case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. In case there is no judgment of a Constitution Bench or Larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request Honble the Chief Justice to refer the matter to a Larger Bench of appropriate strength. 151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbias case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438, Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit. 152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside. 153. We direct the appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the arresting officer. | 1[ds]149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbias case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam150. In case there is no judgment of a Constitution Bench or Larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request Honble the Chief Justice to refer the matter to a Larger Bench of appropriate strength151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbias case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438, Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside153. We direct the appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the arresting officer93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438, Cr.P.C. has not been allowed its full play. The Constitution Bench in Sibbias case (supra) clearly mentioned that Section 438, Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439, Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some Courts of smaller strength have erroneously observed that Section 438, Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbias case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the Courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The Courts considering the bail application should try to maintain fine balance between the societal interests personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent Court99. As aptly observed in Sibbias case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail102. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbias case (supra)103. It is a settled legal position that the Court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time104. The intention of the Legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbias case (supra) has clearly Stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case. The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature entrusting this power to the superior Courts namely, the High Court and the Court of Session106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention107. The restriction on the provision of anticipatory bail under Section 438, Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhis case (supra) in which the Court observed that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable111. The Court must bear in mind that at times the applicant would approach the Court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed ae offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the Court and gets the relief from the Court for a limited period and thereafter he has to surrender before the trial Court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed ae offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this Court in Sibbias case (supra)112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of Section 438, Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty115. The Apex Court in Salauddins case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular Court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the Court is not informed about the nature of evidence against the alleged offender117. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the Court is cancelled by the Court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused118. A good deal of misunderstanding with regard to the ambit and scope of Section 438, Cr.P.C. could have been avoided in case the Constitution Bench decision of this Court in Sibbias case (supra) was correctly understood, appreciated and applied121. No inflexible guidelines ort formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbias case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under Section 438, Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned Judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The Legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior Courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior Court against the Court of Sessions or the High Court is always available126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumars case (supra), a three Judge Bench of this Court has referred to the 3rd Report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails133. In our considered view, the Constitution Bench in Sibbias case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438, Cr.P.C. A number of judgments have been referred to by the learned Counsel for the parties consisting of Benches of smaller strength where the Courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the Court granting the anticipatory bail should leave it to the regular Court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbias case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under Section 438, Cr.P.C. The Constitution Bench has aptly observed that we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbias case (supra), it would not be proper to limit the life of anticipatory bail. When the Court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular Court for bail, that means the life of Section 438, Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the Legislature. The Constitution Bench in Sibbias case (supra) clearly observed that it is not necessary toSection 438, Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438, Cr.P.C. granting bail cannot be curtailed135. The ratio of the judgment of the Constitution Bench in Sibbias case (supra) perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra; K. L. Verma v. State and Another; Adri Dharan Das v. State of West Bengal; and Sunita Devi v. State of Bihar and Anr. (supra)136. In Naresh Kumar Yadav v. Ravindra Kumar, IX (2007) SLT 50=IV (2007) DLT (Crl.) 588 (SC)=IV (2007) CCR 281 (SC)=(2008) 1 SCC 632 , ae Bench of this Court observed the power exercisable under Section 438, Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Benchs decision in Sibbias case (supra)137. We deem it appropriate to reiterate and assert that discretion vested in the Court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the Court under Section 438, Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the Legislature to a rigorous code of138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbias case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in438, Cr.P.C. | 1 | 18,604 | 2,710 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
in Kalyani, which is the binding authority on the point. 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and Ors., IV (2001) SLT 359=(2001) 4 SCC 448 , a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. 146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, I (2005) SLT 45=(2005) 2 SCC 673 , has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. 147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Ors., VIII (2008) SLT 695=(2008) 10 SCC 1 , again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Ors. v. Umadevi (3) and Ors., III (2006) SLT 539=(2006) 4 SCC 1 , is binding on all Courts including this Court till the same is overruled by a Larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the Court observed as under: We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even Larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the Courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 148. In Subhash Chandra and Anr. v.Delhi Subordinate Services Selection Board & Ors., I (2010) SLT 372=(2009) 15 SCC 458 , this Court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The Court in para 110 observed as under: Should we consider S. Pushpa v. Sivachanmugavelu, (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College, (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in Clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand & Ors., VIII (2008) SLT 695=(2008) 10 SCC 1 , therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio. 149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbias case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. In case there is no judgment of a Constitution Bench or Larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request Honble the Chief Justice to refer the matter to a Larger Bench of appropriate strength. 151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbias case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438, Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit. 152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside. 153. We direct the appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the arresting officer.
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on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused118. A good deal of misunderstanding with regard to the ambit and scope of Section 438, Cr.P.C. could have been avoided in case the Constitution Bench decision of this Court in Sibbias case (supra) was correctly understood, appreciated and applied121. No inflexible guidelines ort formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbias case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under Section 438, Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned Judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The Legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior Courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior Court against the Court of Sessions or the High Court is always available126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumars case (supra), a three Judge Bench of this Court has referred to the 3rd Report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails133. In our considered view, the Constitution Bench in Sibbias case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438, Cr.P.C. A number of judgments have been referred to by the learned Counsel for the parties consisting of Benches of smaller strength where the Courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the Court granting the anticipatory bail should leave it to the regular Court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbias case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under Section 438, Cr.P.C. The Constitution Bench has aptly observed that we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbias case (supra), it would not be proper to limit the life of anticipatory bail. When the Court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular Court for bail, that means the life of Section 438, Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the Legislature. The Constitution Bench in Sibbias case (supra) clearly observed that it is not necessary toSection 438, Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438, Cr.P.C. granting bail cannot be curtailed135. The ratio of the judgment of the Constitution Bench in Sibbias case (supra) perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra; K. L. Verma v. State and Another; Adri Dharan Das v. State of West Bengal; and Sunita Devi v. State of Bihar and Anr. (supra)136. In Naresh Kumar Yadav v. Ravindra Kumar, IX (2007) SLT 50=IV (2007) DLT (Crl.) 588 (SC)=IV (2007) CCR 281 (SC)=(2008) 1 SCC 632 , ae Bench of this Court observed the power exercisable under Section 438, Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Benchs decision in Sibbias case (supra)137. We deem it appropriate to reiterate and assert that discretion vested in the Court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the Court under Section 438, Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the Legislature to a rigorous code of138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbias case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in438, Cr.P.C.
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SRI SURESH KUMAR GOYAL Vs. THE STATE OF UTTAR PRADESH | successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/ complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 1 (2013) 3 SCC 330 29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecutions/complainants case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused. 13. In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant No.1. The material on record is absolutely clear that the acquisition was from the funds of Appellant No.1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No.2 and Respondent No.2. If Respondent No.2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor (supra) and are convinced that the instant case calls for interference under Section 482 CrPC. Further, from the facts that Appellant No.1 had disowned Respondent No.2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed. | 1[ds]13. In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant No.1. The material on record is absolutely clear that the acquisition was from the funds of Appellant No.1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No.2 and Respondent No.2. If Respondent No.2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor (supra) and are convinced that the instant case calls for interference underon 482 CrPC. Further, from the facts that Appellant No.1 had disowned Respondent No.2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed. | 1 | 4,238 | 253 | ### Instruction:
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successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/ complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 1 (2013) 3 SCC 330 29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecutions/complainants case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused. 13. In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant No.1. The material on record is absolutely clear that the acquisition was from the funds of Appellant No.1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No.2 and Respondent No.2. If Respondent No.2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor (supra) and are convinced that the instant case calls for interference under Section 482 CrPC. Further, from the facts that Appellant No.1 had disowned Respondent No.2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed.
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13. In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant No.1. The material on record is absolutely clear that the acquisition was from the funds of Appellant No.1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No.2 and Respondent No.2. If Respondent No.2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor (supra) and are convinced that the instant case calls for interference underon 482 CrPC. Further, from the facts that Appellant No.1 had disowned Respondent No.2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed.
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Kashiram Agarwala Vs. Union of India & Others | considerations of convenience of the department and no possible prejudice can be involved in such a transfer. Where, as in the present proceedings, assessment cases pending against the appellant before an officer in one ward are transferred to an officer in another ward in the same place, there is hardly any occasion for mentioning any reasons as such, because such transfers are invariably made on grounds of administrative convenience, and that shows that on principle in such cases neither can the notice be said to be necessary, nor would it be necessary to record any reasons for the transfer. The provisions contained in S, 124(3) of the Act deal with the same topic which was the subject-matter of S. 64(1) and (2) of the earlier Income-tax Act, 1922 (No. XI of 1922). There is, however, this difference between these two provisions that whereas Section 124 fixes jurisdiction, territorial or otherwise, of the Income-tax Officers, S. 64 fixed the place where an assessee was to be assessed.7. In this connection, it is also necessary to take into account the background of the provision contained in S. 127. In Pannalal Binjraj v. Union of India, 1957 SCR 233 : ((S) AIR 1957 SC 397 ) the validity of S. 5(7A) of the earlier Act of 1922 was challenged before this Court. The said Section had provided that the Commissioner of Income-tax may transfer any case from one Income-tax Officer subordinate to him to another; and the Central Board of Revenue may transfer any case from any one Income-tax Officer to another. Such transfer may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Income-tax Officer from whom the case is transferred. The argument which was urged before this Court in challenging the validity of this provision was that it infringed the citizens fundamental rights conferred by Articles 14 and 19(1)(g) of the Constitution. In support of this argument, reliance was placed on the fact that S. 64(1) and (2) conferred a right on the assessee to have his tax matter adjudicated upon by the respective officers mentioned in the said provisions; and since S. 5(7A) authorised the transfer of the assessees case from one Income-tax Officer to another, that involved infringement of his fundamental rights guaranteed by Articles 14 and 19(1)(g) read with S.64(1) and (2). It is necessary to emphasise that S. 5(7A) authorised transfer of income-tax cases from one officer to another not necessarily within the same place. In other words, the transfer authorised by Section 5(7A) would take the case from the jurisdiction of an officer entitled to try it under S. 64(1) and (2) to another officer who may not have jurisdiction to try the case under the said provision. That, indeed, was the basis on which the validity of S. 5(7A) was challenged. This Court, however, repelled the plea raised against the validity of the said Section on the ground that the right conferred on the assessee by Section 64(1) and (2) was not an absolute right and must be subject to the primary object of the Act itself, namely, the assessment and collection of the income-tax; and it was also held that where the exigencies of tax collection so required, the Commissioner of Income-tax or the Central Board of Revenue had the power to transfer his case under S. 5(7A) to some other officer outside the area where the assessee resided or carried on business. That is how Section 5(7A) was sustained.8. Even so, this Court observed in the case of Pannalal Binjraj, 1957 SCR 233 : ((S) AIR 1957 SC 397 ) (supra) that it would be better if an opportunity is given to the assessee in cases where the powers conferred by S. 5(7A) were intended to be exercised, because he would then be able to mention his objections to the intended transfer. It is in that connection that this Court further expressed its opinion that if the reasons for making the transfer "are reduced, however briefly, to writing, it will help the assessee in appreciating the circumstances which make it necessary or desirable to order such a transfer." It is obviously in pursuance of these observations that the Legislature has made the relevant provisions in S. 127(1) of the Act. If this background is borne in mind, it would be clear that the propriety of giving an opportunity to an assessee and the desirability of recording reasons which this Court emphasised, had reference to cases where transfers were intended to be made from an Income-tax Officer in one place to the Income-tax Officer in another place; and they obviously had no reference to transfers like the present where instead of one officer dealing with the case, another officer in the same place is asked to deal with it.9. It is in the light of these considerations that we have to construe the proviso to S. 127(1). As we have already indicated, the construction for which Mr. Jain contends is a reasonably possible construction. In fact, if the words used in the proviso are literally read, Mr. Jain would be justified in contending that the requirement that reasons must be recorded applies even to cases falling under it. On the other hand, if the obvious object of the proviso is taken into account and the relevant previous background is borne in mind, it would also seem reasonable to hold that in regard to cases falling under the proviso, an opportunity need not be given to the assessee, and the consequential need to record reasons for the transfer is also unnecessary, and this view is plainly consistent with the scheme of the provision and the true intent of its requirements. We would accordingly hold that the impugned orders cannot be challenged on the ground that the Board has not recorded reasons in directing the transfer of the cases pending against the assessee from one Income-tax Officer to another in the same locality. | 0[ds]5. But, on the other hand, the provision that nothing in sub-section (1) shall be deemed to require any opportunity to be given, is worded in an emphatic form; and that fact has to be borne in mind in considering the effect of the proviso. Besides, it would not be unreasonable to assume that the recording of reasons prescribed by S. 127(1) would be appropriate where a transfer is being made otherwise than in the manner prescribed by the proviso. In such a case, normally, the assessee has to be given a reasonable opportunity to be heard; and the natural corollary of this requirement is that his objections to the transfer should be considered and reasons given why the transfer is made despite the objection of the assessee. In other words, the requirement as to the recording of reasons flows as a natural consequence and corollary of the requirement that a reasonable opportunity should be given to the assessee. If, however, a reasonable opportunity is not given to the assessee on the ground that it is not possible to do so, S. 127(1) requires that the transfer being of a category where a reasonable opportunity should be given to the assessee, the authority should record its reasons for making the transfer, even though no opportunity was in fact given to the assessee. If that be the true position, it is not easy to understand why the proviso should be so construed as to require reasons to be given for the transfer, even though no opportunity to the assessee is required to be given. That is one aspect of the matter which has to be borne in mind in determining the true scope and effect of the proviso.It is in the light of these considerations that we have to construe the proviso to S. 127(1). As we have already indicated, the construction for which Mr. Jain contends is a reasonably possible construction. In fact, if the words used in the proviso are literally read, Mr. Jain would be justified in contending that the requirement that reasons must be recorded applies even to cases falling under it. On the other hand, if the obvious object of the proviso is taken into account and the relevant previous background is borne in mind, it would also seem reasonable to hold that in regard to cases falling under the proviso, an opportunity need not be given to the assessee, and the consequential need to record reasons for the transfer is also unnecessary, and this view is plainly consistent with the scheme of the provision and the true intent of its requirements. We would accordingly hold that the impugned orders cannot be challenged on the ground that the Board has not recorded reasons in directing the transfer of the cases pending against the assessee from one Income-tax Officer to another in the same locality. | 0 | 2,510 | 530 | ### Instruction:
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considerations of convenience of the department and no possible prejudice can be involved in such a transfer. Where, as in the present proceedings, assessment cases pending against the appellant before an officer in one ward are transferred to an officer in another ward in the same place, there is hardly any occasion for mentioning any reasons as such, because such transfers are invariably made on grounds of administrative convenience, and that shows that on principle in such cases neither can the notice be said to be necessary, nor would it be necessary to record any reasons for the transfer. The provisions contained in S, 124(3) of the Act deal with the same topic which was the subject-matter of S. 64(1) and (2) of the earlier Income-tax Act, 1922 (No. XI of 1922). There is, however, this difference between these two provisions that whereas Section 124 fixes jurisdiction, territorial or otherwise, of the Income-tax Officers, S. 64 fixed the place where an assessee was to be assessed.7. In this connection, it is also necessary to take into account the background of the provision contained in S. 127. In Pannalal Binjraj v. Union of India, 1957 SCR 233 : ((S) AIR 1957 SC 397 ) the validity of S. 5(7A) of the earlier Act of 1922 was challenged before this Court. The said Section had provided that the Commissioner of Income-tax may transfer any case from one Income-tax Officer subordinate to him to another; and the Central Board of Revenue may transfer any case from any one Income-tax Officer to another. Such transfer may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Income-tax Officer from whom the case is transferred. The argument which was urged before this Court in challenging the validity of this provision was that it infringed the citizens fundamental rights conferred by Articles 14 and 19(1)(g) of the Constitution. In support of this argument, reliance was placed on the fact that S. 64(1) and (2) conferred a right on the assessee to have his tax matter adjudicated upon by the respective officers mentioned in the said provisions; and since S. 5(7A) authorised the transfer of the assessees case from one Income-tax Officer to another, that involved infringement of his fundamental rights guaranteed by Articles 14 and 19(1)(g) read with S.64(1) and (2). It is necessary to emphasise that S. 5(7A) authorised transfer of income-tax cases from one officer to another not necessarily within the same place. In other words, the transfer authorised by Section 5(7A) would take the case from the jurisdiction of an officer entitled to try it under S. 64(1) and (2) to another officer who may not have jurisdiction to try the case under the said provision. That, indeed, was the basis on which the validity of S. 5(7A) was challenged. This Court, however, repelled the plea raised against the validity of the said Section on the ground that the right conferred on the assessee by Section 64(1) and (2) was not an absolute right and must be subject to the primary object of the Act itself, namely, the assessment and collection of the income-tax; and it was also held that where the exigencies of tax collection so required, the Commissioner of Income-tax or the Central Board of Revenue had the power to transfer his case under S. 5(7A) to some other officer outside the area where the assessee resided or carried on business. That is how Section 5(7A) was sustained.8. Even so, this Court observed in the case of Pannalal Binjraj, 1957 SCR 233 : ((S) AIR 1957 SC 397 ) (supra) that it would be better if an opportunity is given to the assessee in cases where the powers conferred by S. 5(7A) were intended to be exercised, because he would then be able to mention his objections to the intended transfer. It is in that connection that this Court further expressed its opinion that if the reasons for making the transfer "are reduced, however briefly, to writing, it will help the assessee in appreciating the circumstances which make it necessary or desirable to order such a transfer." It is obviously in pursuance of these observations that the Legislature has made the relevant provisions in S. 127(1) of the Act. If this background is borne in mind, it would be clear that the propriety of giving an opportunity to an assessee and the desirability of recording reasons which this Court emphasised, had reference to cases where transfers were intended to be made from an Income-tax Officer in one place to the Income-tax Officer in another place; and they obviously had no reference to transfers like the present where instead of one officer dealing with the case, another officer in the same place is asked to deal with it.9. It is in the light of these considerations that we have to construe the proviso to S. 127(1). As we have already indicated, the construction for which Mr. Jain contends is a reasonably possible construction. In fact, if the words used in the proviso are literally read, Mr. Jain would be justified in contending that the requirement that reasons must be recorded applies even to cases falling under it. On the other hand, if the obvious object of the proviso is taken into account and the relevant previous background is borne in mind, it would also seem reasonable to hold that in regard to cases falling under the proviso, an opportunity need not be given to the assessee, and the consequential need to record reasons for the transfer is also unnecessary, and this view is plainly consistent with the scheme of the provision and the true intent of its requirements. We would accordingly hold that the impugned orders cannot be challenged on the ground that the Board has not recorded reasons in directing the transfer of the cases pending against the assessee from one Income-tax Officer to another in the same locality.
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5. But, on the other hand, the provision that nothing in sub-section (1) shall be deemed to require any opportunity to be given, is worded in an emphatic form; and that fact has to be borne in mind in considering the effect of the proviso. Besides, it would not be unreasonable to assume that the recording of reasons prescribed by S. 127(1) would be appropriate where a transfer is being made otherwise than in the manner prescribed by the proviso. In such a case, normally, the assessee has to be given a reasonable opportunity to be heard; and the natural corollary of this requirement is that his objections to the transfer should be considered and reasons given why the transfer is made despite the objection of the assessee. In other words, the requirement as to the recording of reasons flows as a natural consequence and corollary of the requirement that a reasonable opportunity should be given to the assessee. If, however, a reasonable opportunity is not given to the assessee on the ground that it is not possible to do so, S. 127(1) requires that the transfer being of a category where a reasonable opportunity should be given to the assessee, the authority should record its reasons for making the transfer, even though no opportunity was in fact given to the assessee. If that be the true position, it is not easy to understand why the proviso should be so construed as to require reasons to be given for the transfer, even though no opportunity to the assessee is required to be given. That is one aspect of the matter which has to be borne in mind in determining the true scope and effect of the proviso.It is in the light of these considerations that we have to construe the proviso to S. 127(1). As we have already indicated, the construction for which Mr. Jain contends is a reasonably possible construction. In fact, if the words used in the proviso are literally read, Mr. Jain would be justified in contending that the requirement that reasons must be recorded applies even to cases falling under it. On the other hand, if the obvious object of the proviso is taken into account and the relevant previous background is borne in mind, it would also seem reasonable to hold that in regard to cases falling under the proviso, an opportunity need not be given to the assessee, and the consequential need to record reasons for the transfer is also unnecessary, and this view is plainly consistent with the scheme of the provision and the true intent of its requirements. We would accordingly hold that the impugned orders cannot be challenged on the ground that the Board has not recorded reasons in directing the transfer of the cases pending against the assessee from one Income-tax Officer to another in the same locality.
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M/s. Rai Udyog Ltd Vs. State of Maharashtra and Ors | Division Bench of this Court in the aforesaid writ petition that the applicants seeking intervention herein will be filing a civil suit for enforcement of their alleged easementary rights, we are of the opinion that the intervention application does not deserve consideration. Even otherwise, the notice impugned herein is a matter between the respondent No.1 and the petitioner, with which the applicants seeking intervention have not been able to show any concern. Therefore, the intervention application i.e. Criminal Application (APPW) No.24/2022 is dismissed. 8. Insofar as the challenge in the present writ petition is concerned, we have perused the impugned notice dated 28.06.2021. The notice starts by recording that the petitioner has started construction activity on the land in question and that a Dargah exists on a part of the land. It is then recorded that some people had gathered at the spot, leading to a law and order situation. On this basis, the respondent No.1 issued a direction to the petitioner to obtain appropriate order from the competent Court before undertaking any further activity on the said land. 9. To understand whether such a notice could be issued under Section 149 of the Cr.P.C., it would be appropriate to refer to the said provision, which reads as follows: 149. Police to prevent cognizable offences. - Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. 10. A perusal of the above quoted provision, would show that a Police Officer is expected to interpose only for the purpose of preventing commission of a cognizable offence and that he can take appropriate steps in that regard. The question is, whether the Police Officer, while exercising power under Section 149 of the Cr.P.C., can issue a restrainment order or an order akin to an injunction against a party. Reliance in this regard is placed on behalf of the petitioner on judgment and order dated 27.03.2015, passed by a Division Bench of this Court in the case of Shashikant Bhurya Kokani Vs. The State of Maharashtra & Ors. reported in 2015(2) BomCR (Cri) 701. While considering the scope of the aforementioned provision, in the said judgment, it was held as follows: 11. Section 149 of Criminal Procedure Code empowers every police officer to interpose for the purpose of preventing and, to the best of his ability, prevent the commission of any cognizable offence. Otherwise also, according to us, section 149 Cr.P.Code does not vest police officer in the exercise of jurisdiction under Section 149 Cr.P.C. to issue blanket order of injunction prohibiting any party from entering into the agricultural land. In our considered opinion, Respondent No.3 would not have issued impugned notice injecting the petitioner, more so when the appeals are pending adjudication. We are of the opinion that impugned notice (Annexure-F) issued by Respondent No.3 is unsustainable in law. 11. We are of the opinion that even if there was apprehension of a law and order situation being created at the spot in question, while exercising power under Section 149 of the Cr.C.P., the Police Officer (respondent No.1 herein) did not have the power or authority to issue a virtual injunction order against the petitioner – Company, which was undertaking construction on a piece of land. If any party sought to raise a dispute as regards the authority of the petitioner – Company to proceed with construction on the said piece of land, such a party would obviously have to knock the doors of the competent Civil Court to obtain urgent order of injunction. In fact, as noted above, the individuals who sought to intervene in the present petition, had filed Writ Petition No.2027/2022, before this Court and they had themselves proposed to file a civil suit for enforcement of the alleged easementary rights, in the backdrop of which, the writ petition stood disposed of. 12. It is significant that in Section 149 of the Cr.P.C., quoted above, the word interpose is used, in the context of a Police Officer preventing commission of any cognizable offence. In Cambridge Dictionary, interpose is defined by stating to put something between two things. In Collins Dictionary, interpose means to intervene or step in. As per Marriam-Webster Dictionary, interpose means to be or come between and in Oxford Learners Dictionary, interpose means to place somebody or something between two people or things. 13. Applying the aforesaid meanings given to the word interpose, in Section 149 of the Cr.P.C., a Police Officer is required to come between people or things to prevent commission of any cognizable offence. In the present case, even if the Police Officer apprehended commission of a cognizable offence, he was required to come in between persons and while doing so, ensuring that lawful activity was assisted and unlawful activities were prevented. The petitioner – Company carrying out development activity/construction lawfully could not have been restrained merely because some people gathered with the threat of committing cognizable offence. On the contrary, the Police Officer was expected to take appropriate steps by interposing and ensuring that lawlessness and unlawful activity was prevented. Those claiming any right to restrain the petitioner – Company from carrying out its development/construction activity ought to approach the competent Civil Court for obtaining appropriate orders of restraint, in accordance with law. Instead, the respondent No.1 – Police Officer in the present case asked the petitioner – Company to do so. 14. If the manner in which the respondent No.1 has sought to exercise power under Section 149 of the Cr.P.C. is upheld, it would lead to a situation, where development or other such activity could easily be stalled by individuals creating a law and order situation, whereupon a person or an entity seeking to undertake lawful activity, would be asked to approach the Civil Court and in the interregnum, the Police Officer would exercise power under Section 149 of the Cr.P.C. to virtually issue orders of injunction, which can never be contemplated under the aforesaid provision. | 1[ds]4. We have perused the intervention application, wherein the applicants claim that the aforesaid Dargah is existing for the past about 200 years and that if the petitioner – Company is permitted to continue development/construction activity on the land in question and the Dargah is demolished, it would adversely affect devotees, who visit the Dargah for religious activities. Reference is made to certain Government Resolutions, while claiming that the applicants need to be heard in the present petition.6. A perusal of the order dated 18.04.2022, passed in Writ Petition No.2027/2022, would show that the applicants herein had approached this Court by filing the aforesaid writ petition on the Civil Side, claiming two reliefs, firstly, challenging Government Resolution dated 02.03.2019 and secondly, seeking a writ of mandamus for permission to the petitioners therein i.e. the applicants herein and other devotees for easementary rights to perform religious activities in respect of said Dargah. The Division Bench of this Court found that during the course of arguments, the petitioners accepted that no legal right of the petitioners therein was affected and that they were not agitating the issue in larger public interest and that as regards the grievance sought to be projected in the writ petition, the petitioners therein proposed to file a civil suit for enforcement of their easementary rights. The writ petition stood disposed of by recording the afoesaid submissions advanced on behalf of the petitioners therein i.e. the applicants herein.7. It is an admitted position that in pursuance thereof, till date, the proposed civil suit has not been filed for enforcement of the alleged easementary rights. Instead, the petitioners therein have filed the present intervention application seeking to reagitate the same issues that were highlighted in the aforesaid writ petition. Having made a statement before the Division Bench of this Court in the aforesaid writ petition that the applicants seeking intervention herein will be filing a civil suit for enforcement of their alleged easementary rights, we are of the opinion that the intervention application does not deserve consideration. Even otherwise, the notice impugned herein is a matter between the respondent No.1 and the petitioner, with which the applicants seeking intervention have not been able to show any concern. Therefore, the intervention application i.e. Criminal Application (APPW) No.24/2022 is dismissed.8. Insofar as the challenge in the present writ petition is concerned, we have perused the impugned notice dated 28.06.2021. The notice starts by recording that the petitioner has started construction activity on the land in question and that a Dargah exists on a part of the land. It is then recorded that some people had gathered at the spot, leading to a law and order situation. On this basis, the respondent No.1 issued a direction to the petitioner to obtain appropriate order from the competent Court before undertaking any further activity on the said land.10. A perusal of the above quoted provision, would show that a Police Officer is expected to interpose only for the purpose of preventing commission of a cognizable offence and that he can take appropriate steps in that regard. The question is, whether the Police Officer, while exercising power under Section 149 of the Cr.P.C., can issue a restrainment order or an order akin to an injunction against a party. Reliance in this regard is placed on behalf of the petitioner on judgment and order dated 27.03.2015, passed by a Division Bench of this Court in the case of Shashikant Bhurya Kokani Vs. The State of Maharashtra & Ors. reported in 2015(2) BomCR (Cri) 701. While considering the scope of the aforementioned provision, in the said judgment, it was held as follows:11. Section 149 of Criminal Procedure Code empowers every police officer to interpose for the purpose of preventing and, to the best of his ability, prevent the commission of any cognizable offence. Otherwise also, according to us, section 149 Cr.P.Code does not vest police officer in the exercise of jurisdiction under Section 149 Cr.P.C. to issue blanket order of injunction prohibiting any party from entering into the agricultural land. In our considered opinion, Respondent No.3 would not have issued impugned notice injecting the petitioner, more so when the appeals are pending adjudication. We are of the opinion that impugned notice (Annexure-F) issued by Respondent No.3 is unsustainable in law.11. We are of the opinion that even if there was apprehension of a law and order situation being created at the spot in question, while exercising power under Section 149 of the Cr.C.P., the Police Officer (respondent No.1 herein) did not have the power or authority to issue a virtual injunction order against the petitioner – Company, which was undertaking construction on a piece of land. If any party sought to raise a dispute as regards the authority of the petitioner – Company to proceed with construction on the said piece of land, such a party would obviously have to knock the doors of the competent Civil Court to obtain urgent order of injunction. In fact, as noted above, the individuals who sought to intervene in the present petition, had filed Writ Petition No.2027/2022, before this Court and they had themselves proposed to file a civil suit for enforcement of the alleged easementary rights, in the backdrop of which, the writ petition stood disposed of.13. Applying the aforesaid meanings given to the word interpose, in Section 149 of the Cr.P.C., a Police Officer is required to come between people or things to prevent commission of any cognizable offence. In the present case, even if the Police Officer apprehended commission of a cognizable offence, he was required to come in between persons and while doing so, ensuring that lawful activity was assisted and unlawful activities were prevented. The petitioner – Company carrying out development activity/construction lawfully could not have been restrained merely because some people gathered with the threat of committing cognizable offence. On the contrary, the Police Officer was expected to take appropriate steps by interposing and ensuring that lawlessness and unlawful activity was prevented. Those claiming any right to restrain the petitioner – Company from carrying out its development/construction activity ought to approach the competent Civil Court for obtaining appropriate orders of restraint, in accordance with law. Instead, the respondent No.1 – Police Officer in the present case asked the petitioner – Company to do so.14. If the manner in which the respondent No.1 has sought to exercise power under Section 149 of the Cr.P.C. is upheld, it would lead to a situation, where development or other such activity could easily be stalled by individuals creating a law and order situation, whereupon a person or an entity seeking to undertake lawful activity, would be asked to approach the Civil Court and in the interregnum, the Police Officer would exercise power under Section 149 of the Cr.P.C. to virtually issue orders of injunction, which can never be contemplated under the aforesaid provision. | 1 | 1,796 | 1,260 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Division Bench of this Court in the aforesaid writ petition that the applicants seeking intervention herein will be filing a civil suit for enforcement of their alleged easementary rights, we are of the opinion that the intervention application does not deserve consideration. Even otherwise, the notice impugned herein is a matter between the respondent No.1 and the petitioner, with which the applicants seeking intervention have not been able to show any concern. Therefore, the intervention application i.e. Criminal Application (APPW) No.24/2022 is dismissed. 8. Insofar as the challenge in the present writ petition is concerned, we have perused the impugned notice dated 28.06.2021. The notice starts by recording that the petitioner has started construction activity on the land in question and that a Dargah exists on a part of the land. It is then recorded that some people had gathered at the spot, leading to a law and order situation. On this basis, the respondent No.1 issued a direction to the petitioner to obtain appropriate order from the competent Court before undertaking any further activity on the said land. 9. To understand whether such a notice could be issued under Section 149 of the Cr.P.C., it would be appropriate to refer to the said provision, which reads as follows: 149. Police to prevent cognizable offences. - Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. 10. A perusal of the above quoted provision, would show that a Police Officer is expected to interpose only for the purpose of preventing commission of a cognizable offence and that he can take appropriate steps in that regard. The question is, whether the Police Officer, while exercising power under Section 149 of the Cr.P.C., can issue a restrainment order or an order akin to an injunction against a party. Reliance in this regard is placed on behalf of the petitioner on judgment and order dated 27.03.2015, passed by a Division Bench of this Court in the case of Shashikant Bhurya Kokani Vs. The State of Maharashtra & Ors. reported in 2015(2) BomCR (Cri) 701. While considering the scope of the aforementioned provision, in the said judgment, it was held as follows: 11. Section 149 of Criminal Procedure Code empowers every police officer to interpose for the purpose of preventing and, to the best of his ability, prevent the commission of any cognizable offence. Otherwise also, according to us, section 149 Cr.P.Code does not vest police officer in the exercise of jurisdiction under Section 149 Cr.P.C. to issue blanket order of injunction prohibiting any party from entering into the agricultural land. In our considered opinion, Respondent No.3 would not have issued impugned notice injecting the petitioner, more so when the appeals are pending adjudication. We are of the opinion that impugned notice (Annexure-F) issued by Respondent No.3 is unsustainable in law. 11. We are of the opinion that even if there was apprehension of a law and order situation being created at the spot in question, while exercising power under Section 149 of the Cr.C.P., the Police Officer (respondent No.1 herein) did not have the power or authority to issue a virtual injunction order against the petitioner – Company, which was undertaking construction on a piece of land. If any party sought to raise a dispute as regards the authority of the petitioner – Company to proceed with construction on the said piece of land, such a party would obviously have to knock the doors of the competent Civil Court to obtain urgent order of injunction. In fact, as noted above, the individuals who sought to intervene in the present petition, had filed Writ Petition No.2027/2022, before this Court and they had themselves proposed to file a civil suit for enforcement of the alleged easementary rights, in the backdrop of which, the writ petition stood disposed of. 12. It is significant that in Section 149 of the Cr.P.C., quoted above, the word interpose is used, in the context of a Police Officer preventing commission of any cognizable offence. In Cambridge Dictionary, interpose is defined by stating to put something between two things. In Collins Dictionary, interpose means to intervene or step in. As per Marriam-Webster Dictionary, interpose means to be or come between and in Oxford Learners Dictionary, interpose means to place somebody or something between two people or things. 13. Applying the aforesaid meanings given to the word interpose, in Section 149 of the Cr.P.C., a Police Officer is required to come between people or things to prevent commission of any cognizable offence. In the present case, even if the Police Officer apprehended commission of a cognizable offence, he was required to come in between persons and while doing so, ensuring that lawful activity was assisted and unlawful activities were prevented. The petitioner – Company carrying out development activity/construction lawfully could not have been restrained merely because some people gathered with the threat of committing cognizable offence. On the contrary, the Police Officer was expected to take appropriate steps by interposing and ensuring that lawlessness and unlawful activity was prevented. Those claiming any right to restrain the petitioner – Company from carrying out its development/construction activity ought to approach the competent Civil Court for obtaining appropriate orders of restraint, in accordance with law. Instead, the respondent No.1 – Police Officer in the present case asked the petitioner – Company to do so. 14. If the manner in which the respondent No.1 has sought to exercise power under Section 149 of the Cr.P.C. is upheld, it would lead to a situation, where development or other such activity could easily be stalled by individuals creating a law and order situation, whereupon a person or an entity seeking to undertake lawful activity, would be asked to approach the Civil Court and in the interregnum, the Police Officer would exercise power under Section 149 of the Cr.P.C. to virtually issue orders of injunction, which can never be contemplated under the aforesaid provision.
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activities in respect of said Dargah. The Division Bench of this Court found that during the course of arguments, the petitioners accepted that no legal right of the petitioners therein was affected and that they were not agitating the issue in larger public interest and that as regards the grievance sought to be projected in the writ petition, the petitioners therein proposed to file a civil suit for enforcement of their easementary rights. The writ petition stood disposed of by recording the afoesaid submissions advanced on behalf of the petitioners therein i.e. the applicants herein.7. It is an admitted position that in pursuance thereof, till date, the proposed civil suit has not been filed for enforcement of the alleged easementary rights. Instead, the petitioners therein have filed the present intervention application seeking to reagitate the same issues that were highlighted in the aforesaid writ petition. Having made a statement before the Division Bench of this Court in the aforesaid writ petition that the applicants seeking intervention herein will be filing a civil suit for enforcement of their alleged easementary rights, we are of the opinion that the intervention application does not deserve consideration. Even otherwise, the notice impugned herein is a matter between the respondent No.1 and the petitioner, with which the applicants seeking intervention have not been able to show any concern. Therefore, the intervention application i.e. Criminal Application (APPW) No.24/2022 is dismissed.8. Insofar as the challenge in the present writ petition is concerned, we have perused the impugned notice dated 28.06.2021. The notice starts by recording that the petitioner has started construction activity on the land in question and that a Dargah exists on a part of the land. It is then recorded that some people had gathered at the spot, leading to a law and order situation. On this basis, the respondent No.1 issued a direction to the petitioner to obtain appropriate order from the competent Court before undertaking any further activity on the said land.10. A perusal of the above quoted provision, would show that a Police Officer is expected to interpose only for the purpose of preventing commission of a cognizable offence and that he can take appropriate steps in that regard. The question is, whether the Police Officer, while exercising power under Section 149 of the Cr.P.C., can issue a restrainment order or an order akin to an injunction against a party. Reliance in this regard is placed on behalf of the petitioner on judgment and order dated 27.03.2015, passed by a Division Bench of this Court in the case of Shashikant Bhurya Kokani Vs. The State of Maharashtra & Ors. reported in 2015(2) BomCR (Cri) 701. While considering the scope of the aforementioned provision, in the said judgment, it was held as follows:11. Section 149 of Criminal Procedure Code empowers every police officer to interpose for the purpose of preventing and, to the best of his ability, prevent the commission of any cognizable offence. Otherwise also, according to us, section 149 Cr.P.Code does not vest police officer in the exercise of jurisdiction under Section 149 Cr.P.C. to issue blanket order of injunction prohibiting any party from entering into the agricultural land. In our considered opinion, Respondent No.3 would not have issued impugned notice injecting the petitioner, more so when the appeals are pending adjudication. We are of the opinion that impugned notice (Annexure-F) issued by Respondent No.3 is unsustainable in law.11. We are of the opinion that even if there was apprehension of a law and order situation being created at the spot in question, while exercising power under Section 149 of the Cr.C.P., the Police Officer (respondent No.1 herein) did not have the power or authority to issue a virtual injunction order against the petitioner – Company, which was undertaking construction on a piece of land. If any party sought to raise a dispute as regards the authority of the petitioner – Company to proceed with construction on the said piece of land, such a party would obviously have to knock the doors of the competent Civil Court to obtain urgent order of injunction. In fact, as noted above, the individuals who sought to intervene in the present petition, had filed Writ Petition No.2027/2022, before this Court and they had themselves proposed to file a civil suit for enforcement of the alleged easementary rights, in the backdrop of which, the writ petition stood disposed of.13. Applying the aforesaid meanings given to the word interpose, in Section 149 of the Cr.P.C., a Police Officer is required to come between people or things to prevent commission of any cognizable offence. In the present case, even if the Police Officer apprehended commission of a cognizable offence, he was required to come in between persons and while doing so, ensuring that lawful activity was assisted and unlawful activities were prevented. The petitioner – Company carrying out development activity/construction lawfully could not have been restrained merely because some people gathered with the threat of committing cognizable offence. On the contrary, the Police Officer was expected to take appropriate steps by interposing and ensuring that lawlessness and unlawful activity was prevented. Those claiming any right to restrain the petitioner – Company from carrying out its development/construction activity ought to approach the competent Civil Court for obtaining appropriate orders of restraint, in accordance with law. Instead, the respondent No.1 – Police Officer in the present case asked the petitioner – Company to do so.14. If the manner in which the respondent No.1 has sought to exercise power under Section 149 of the Cr.P.C. is upheld, it would lead to a situation, where development or other such activity could easily be stalled by individuals creating a law and order situation, whereupon a person or an entity seeking to undertake lawful activity, would be asked to approach the Civil Court and in the interregnum, the Police Officer would exercise power under Section 149 of the Cr.P.C. to virtually issue orders of injunction, which can never be contemplated under the aforesaid provision.
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Bungo Steel Furniture Pvt. Ltd Vs. Union Of India | was set aside by the High Court, in appeal from the judgment of the learned single Judge passing a decree on its basis, on the ground that the award of the Umpire with regard to the compensation for the wrongful cancellation of the contract was erroneous in law and the error appeared on the face of the award. In the award, the arbitrator held that under Contract No. A. T. 1,000, only 1,805 bins had been manufactured, and under the Second Contract No. A. T. 10,48,367 bins had been manufactured. These bins were accepted and the remaining component parts had not been assembled into more finished bins by the time when the contract was cancelled. He further held that the cancellation by the Government for the balance was wrongful. There was, however, no evidence relating to the manufacturing cost of the aforesaid remaining component parts. Thereupon, he proceeded to award, by way of compensation for the wrongful termination of the contract by the Government as aforesaid, to the company the amount representing the value of the steel used up in making the said component parts which had not been assembled into completed bins, and, therefore, he did not allow the Government credit for the value of the steel used up in manufacturing those component parts. He further held that after manufacturing the finished bins and component parts of unfinished bins, no surplus steel was left. 8. The High Court, in setting aside the award, was of the view that in this part dealing with compensation payable by the Government to the appellant, the learned Umpire had acted contrary to the principles recognised in law for assessing compensation. In our view, considering the principles which apply to the exercise of the power of a Court to set aside an award of an arbitrator, this order by the High Court was not justified. 9. It is now a well-settled principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the Court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself. 10. In the present case, the Umpire held that the cancellation of the contract by the Government for the balance of the bins was wrongful. He was, therefore, fully entitled to award compensation for that breach of contract to the appellant. He, however found that there was no evidence relating to the manufacturing cost of the aforesaid remaining component parts which, on principles applicable to breaches of contract, would ordinarily have been the amount awarded as compensation. Having no such evidence, the Umpire, it appears, proceeded to use his discretion to determine the compensation which he thought should be equitably made payable by the Government to the appellant. He had already arrived at the finding that the steel supplied by the Government, which had not been used up in completed bins, had already been consumed in making component parts. In these circumstances, having decided that compensation should be paid by the Government to the appellant, he fixed the amount of compensation at the value represented by the steel used up in making those component parts. This award is not to be interpreted as proceeding on any basis that the value of the steel used up in making the component parts was held by him on some principle to be the compensation payable by the Government. What he actually meant was that having mentally decided on the amount that was to be awarded as compensation, he came to the view that that amount can equitably be treated as being equal to the value of the steel used up in making the component parts. What the value of that steel in the component parts was at that stage was not computed by him. May be, the steel had become less serviceable and deteriorated in value. What was the consideration that led him to consider that the value of the steel was equal to, and not more or less than, the amount which he considered it right to award as compensation, was not indicated by him in his award. This is, therefore, clearly a case where the arbitrator came to the conclusion that a certain amount should be paid by the Government as compensation for wrongful termination of the contract, and in his discretion, he laid down that that amount is equal to the value of the steel as it existed after it had been converted into component parts. He did not hold that the Government was not entitled to the return of the unused steel. What he actually held was that the Government being entitled to the value of the unused steel, no separate direction in respect of it need be made, because the value of that steel was equal to the amount of compensation which he was awarding to the appellant; and thus, the two liabilities of the appellant to the Government and of the Government to the appellant were set off against each other. In the circumstances, it has to be held that the Umpire, in fixing the amount of compensation, had not proceeded to follow any principles, the validity of which could be tested on the basis of laws applicable to breaches of contract. He awarded the compensation to the extent that he considered right in his discretion without indicating his reasons. Such a decision by an Umpire or an Arbitrator cannot be held to be erroneous on the face of the record. We, therefore, allow the appeals with costs, set aside the appellate order of the High Court, and restore that of the learned single Judge. ORDER | 1[ds]The award was set aside by the High Court, in appeal from the judgment of the learned single Judge passing a decree on its basis, on the ground that the award of the Umpire with regard to the compensation for the wrongful cancellation of the contract was erroneous in law and the error appeared on the face of the award. In the award, the arbitrator held that under Contract No. A. T. 1,000, only 1,805 bins had been manufactured, and under the Second Contract No. A. T. 10,48,367 bins had been manufactured. These bins were accepted and the remaining component parts had not been assembled into more finished bins by the time when the contract was cancelled. He further held that the cancellation by the Government for the balance was wrongful. There was, however, no evidence relating to the manufacturing cost of the aforesaid remaining component parts. Thereupon, he proceeded to award, by way of compensation for the wrongful termination of the contract by the Government as aforesaid, to the company the amount representing the value of the steel used up in making the said component parts which had not been assembled into completed bins, and, therefore, he did not allow the Government credit for the value of the steel used up in manufacturing those component parts. He further held that after manufacturing the finished bins and component parts of unfinished bins, no surplus steel was left8. The High Court, in setting aside the award, was of the view that in this part dealing with compensation payable by the Government to the appellant, the learned Umpire had acted contrary to the principles recognised in law for assessing compensation. In our view, considering the principles which apply to the exercise of the power of a Court to set aside an award of an arbitrator, this order by the High Court was not justified9. It is now ad principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the Court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself10. In the present case, the Umpire held that the cancellation of the contract by the Government for the balance of the bins was wrongful. He was, therefore, fully entitled to award compensation for that breach of contract to the appellant. He, however found that there was no evidence relating to the manufacturing cost of the aforesaid remaining component parts which, on principles applicable to breaches of contract, would ordinarily have been the amount awarded as compensation. Having no such evidence, the Umpire, it appears, proceeded to use his discretion to determine the compensation which he thought should be equitably made payable by the Government to the appellant. He had already arrived at the finding that the steel supplied by the Government, which had not been used up in completed bins, had already been consumed in making component parts. In these circumstances, having decided that compensation should be paid by the Government to the appellant, he fixed the amount of compensation at the value represented by the steel used up in making those component parts. This award is not to be interpreted as proceeding on any basis that the value of the steel used up in making the component parts was held by him on some principle to be the compensation payable by the Government. What he actually meant was that having mentally decided on the amount that was to be awarded as compensation, he came to the view that that amount can equitably be treated as being equal to the value of the steel used up in making the component parts. What the value of that steel in the component parts was at that stage was not computed by him. May be, the steel had become less serviceable and deteriorated in value. What was the consideration that led him to consider that the value of the steel was equal to, and not more or less than, the amount which he considered it right to award as compensation, was not indicated by him in his award. This is, therefore, clearly a case where the arbitrator came to the conclusion that a certain amount should be paid by the Government as compensation for wrongful termination of the contract, and in his discretion, he laid down that that amount is equal to the value of the steel as it existed after it had been converted into component parts. He did not hold that the Government was not entitled to the return of the unused steel. What he actually held was that the Government being entitled to the value of the unused steel, no separate direction in respect of it need be made, because the value of that steel was equal to the amount of compensation which he was awarding to the appellant; and thus, the two liabilities of the appellant to the Government and of the Government to the appellant were set off against each other. In the circumstances, it has to be held that the Umpire, in fixing the amount of compensation, had not proceeded to follow any principles, the validity of which could be tested on the basis of laws applicable to breaches of contract. He awarded the compensation to the extent that he considered right in his discretion without indicating his reasons. Such a decision by an Umpire or an Arbitrator cannot be held to be erroneous on the face of the record. We, therefore, allow the appeals with costs, set aside the appellate order of the High Court, and restore that of the learned single Judge. | 1 | 3,803 | 1,089 | ### Instruction:
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### Input:
was set aside by the High Court, in appeal from the judgment of the learned single Judge passing a decree on its basis, on the ground that the award of the Umpire with regard to the compensation for the wrongful cancellation of the contract was erroneous in law and the error appeared on the face of the award. In the award, the arbitrator held that under Contract No. A. T. 1,000, only 1,805 bins had been manufactured, and under the Second Contract No. A. T. 10,48,367 bins had been manufactured. These bins were accepted and the remaining component parts had not been assembled into more finished bins by the time when the contract was cancelled. He further held that the cancellation by the Government for the balance was wrongful. There was, however, no evidence relating to the manufacturing cost of the aforesaid remaining component parts. Thereupon, he proceeded to award, by way of compensation for the wrongful termination of the contract by the Government as aforesaid, to the company the amount representing the value of the steel used up in making the said component parts which had not been assembled into completed bins, and, therefore, he did not allow the Government credit for the value of the steel used up in manufacturing those component parts. He further held that after manufacturing the finished bins and component parts of unfinished bins, no surplus steel was left. 8. The High Court, in setting aside the award, was of the view that in this part dealing with compensation payable by the Government to the appellant, the learned Umpire had acted contrary to the principles recognised in law for assessing compensation. In our view, considering the principles which apply to the exercise of the power of a Court to set aside an award of an arbitrator, this order by the High Court was not justified. 9. It is now a well-settled principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the Court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself. 10. In the present case, the Umpire held that the cancellation of the contract by the Government for the balance of the bins was wrongful. He was, therefore, fully entitled to award compensation for that breach of contract to the appellant. He, however found that there was no evidence relating to the manufacturing cost of the aforesaid remaining component parts which, on principles applicable to breaches of contract, would ordinarily have been the amount awarded as compensation. Having no such evidence, the Umpire, it appears, proceeded to use his discretion to determine the compensation which he thought should be equitably made payable by the Government to the appellant. He had already arrived at the finding that the steel supplied by the Government, which had not been used up in completed bins, had already been consumed in making component parts. In these circumstances, having decided that compensation should be paid by the Government to the appellant, he fixed the amount of compensation at the value represented by the steel used up in making those component parts. This award is not to be interpreted as proceeding on any basis that the value of the steel used up in making the component parts was held by him on some principle to be the compensation payable by the Government. What he actually meant was that having mentally decided on the amount that was to be awarded as compensation, he came to the view that that amount can equitably be treated as being equal to the value of the steel used up in making the component parts. What the value of that steel in the component parts was at that stage was not computed by him. May be, the steel had become less serviceable and deteriorated in value. What was the consideration that led him to consider that the value of the steel was equal to, and not more or less than, the amount which he considered it right to award as compensation, was not indicated by him in his award. This is, therefore, clearly a case where the arbitrator came to the conclusion that a certain amount should be paid by the Government as compensation for wrongful termination of the contract, and in his discretion, he laid down that that amount is equal to the value of the steel as it existed after it had been converted into component parts. He did not hold that the Government was not entitled to the return of the unused steel. What he actually held was that the Government being entitled to the value of the unused steel, no separate direction in respect of it need be made, because the value of that steel was equal to the amount of compensation which he was awarding to the appellant; and thus, the two liabilities of the appellant to the Government and of the Government to the appellant were set off against each other. In the circumstances, it has to be held that the Umpire, in fixing the amount of compensation, had not proceeded to follow any principles, the validity of which could be tested on the basis of laws applicable to breaches of contract. He awarded the compensation to the extent that he considered right in his discretion without indicating his reasons. Such a decision by an Umpire or an Arbitrator cannot be held to be erroneous on the face of the record. We, therefore, allow the appeals with costs, set aside the appellate order of the High Court, and restore that of the learned single Judge. ORDER
### Response:
1
### Explanation:
The award was set aside by the High Court, in appeal from the judgment of the learned single Judge passing a decree on its basis, on the ground that the award of the Umpire with regard to the compensation for the wrongful cancellation of the contract was erroneous in law and the error appeared on the face of the award. In the award, the arbitrator held that under Contract No. A. T. 1,000, only 1,805 bins had been manufactured, and under the Second Contract No. A. T. 10,48,367 bins had been manufactured. These bins were accepted and the remaining component parts had not been assembled into more finished bins by the time when the contract was cancelled. He further held that the cancellation by the Government for the balance was wrongful. There was, however, no evidence relating to the manufacturing cost of the aforesaid remaining component parts. Thereupon, he proceeded to award, by way of compensation for the wrongful termination of the contract by the Government as aforesaid, to the company the amount representing the value of the steel used up in making the said component parts which had not been assembled into completed bins, and, therefore, he did not allow the Government credit for the value of the steel used up in manufacturing those component parts. He further held that after manufacturing the finished bins and component parts of unfinished bins, no surplus steel was left8. The High Court, in setting aside the award, was of the view that in this part dealing with compensation payable by the Government to the appellant, the learned Umpire had acted contrary to the principles recognised in law for assessing compensation. In our view, considering the principles which apply to the exercise of the power of a Court to set aside an award of an arbitrator, this order by the High Court was not justified9. It is now ad principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the Court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself10. In the present case, the Umpire held that the cancellation of the contract by the Government for the balance of the bins was wrongful. He was, therefore, fully entitled to award compensation for that breach of contract to the appellant. He, however found that there was no evidence relating to the manufacturing cost of the aforesaid remaining component parts which, on principles applicable to breaches of contract, would ordinarily have been the amount awarded as compensation. Having no such evidence, the Umpire, it appears, proceeded to use his discretion to determine the compensation which he thought should be equitably made payable by the Government to the appellant. He had already arrived at the finding that the steel supplied by the Government, which had not been used up in completed bins, had already been consumed in making component parts. In these circumstances, having decided that compensation should be paid by the Government to the appellant, he fixed the amount of compensation at the value represented by the steel used up in making those component parts. This award is not to be interpreted as proceeding on any basis that the value of the steel used up in making the component parts was held by him on some principle to be the compensation payable by the Government. What he actually meant was that having mentally decided on the amount that was to be awarded as compensation, he came to the view that that amount can equitably be treated as being equal to the value of the steel used up in making the component parts. What the value of that steel in the component parts was at that stage was not computed by him. May be, the steel had become less serviceable and deteriorated in value. What was the consideration that led him to consider that the value of the steel was equal to, and not more or less than, the amount which he considered it right to award as compensation, was not indicated by him in his award. This is, therefore, clearly a case where the arbitrator came to the conclusion that a certain amount should be paid by the Government as compensation for wrongful termination of the contract, and in his discretion, he laid down that that amount is equal to the value of the steel as it existed after it had been converted into component parts. He did not hold that the Government was not entitled to the return of the unused steel. What he actually held was that the Government being entitled to the value of the unused steel, no separate direction in respect of it need be made, because the value of that steel was equal to the amount of compensation which he was awarding to the appellant; and thus, the two liabilities of the appellant to the Government and of the Government to the appellant were set off against each other. In the circumstances, it has to be held that the Umpire, in fixing the amount of compensation, had not proceeded to follow any principles, the validity of which could be tested on the basis of laws applicable to breaches of contract. He awarded the compensation to the extent that he considered right in his discretion without indicating his reasons. Such a decision by an Umpire or an Arbitrator cannot be held to be erroneous on the face of the record. We, therefore, allow the appeals with costs, set aside the appellate order of the High Court, and restore that of the learned single Judge.
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Anil Sachar Vs. M/S Shree Nath Spinners P.Ltd.& Ors.Etc | two chequesin favourof the complainant through their sister concern M/S A.T. Overseas Ltd. i.e. Accused No. 1 and the chequeswere duly signed by Mr. MunishJain one of its directors” 15. The trial court materially erred while coming to a conclusion that in criminal law no presumption can be raised with regard to consideration as no goods had been supplied by the complainants to M/s. A.T. Overseas Ltd..The trial court ought to have considered provisions of Section 139 of the Act, which reads as under:- “139. Presumption in favourof holder - It shall be presumed, unless the contrary is proved, that the holder of a chequereceived the chequeof the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 16. According to the provisions of the aforestatedsection, there is a presumption with regard to consideration when a chequehas been paid by the drawer of the cheque. In the instant case, M/s. A.T. Overseas Ltd. paid the chequewhich had been duly signed by one of its Directors, namely, MunishJain. MunishJain is also a Director in M/s. ShreeNathSpinners Pvt. Ltd..As stated hereinabove, both are sister concerns having common Directors. Extracts of books of accounts had been produced before the trial court so as to show that both the companies were having several transactions and the companies used to pay on behalf of each other to other parties or their creditors. The above fact strengthens the presumption to the effect that M/s. A.T. Overseas Ltd. had paid the chequesto the complainants, which had been signed by MunishJain, in consideration of goods supplies to M/s ShreeNathSpinners Pvt. Ltd. Of course, the presumption referred to in Section 139 is rebuttable. In the instant case, no effort was made by MunishJain or any of the Directors of M/s. A.T. Overseas Ltd. for rebuttal of the aforestatedpresumption and, therefore, the presumption must go in favourof the holder of the cheques. Unfortunately, the trial court did not consider the above facts and came to the conclusion that there was no consideration for the chequeswhich had been given by M/s. A.T. Overseas Ltd. to the complainants.17. It is true that a limited company is a separate legal entity and its directors are different legal persons. In spite of the aforestatedlegal position, in view of the provisions of Section 139 of the Act and the understanding which had been arrived at among the complainants and the accused, one can safely come to a conclusion that the chequessigned by MunishJain had been given by M/s. A.T. Overseas Ltd. to the complainants in discharge of a debt or a liability, which had been incurred by M/s ShreeNathSpinners Pvt. Ltd.18. We may also refer to the judgment delivered by this Court in the case of ICDS Ltd. (supra). In the said judgment this Court has referred to the nature of liability which is incurred by the one who is a drawer of the cheque. If the chequeis given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the chequecan be made liable under Section 138 of the Act. The relevant observation made in the aforestatedjudgment is as under: “ Thewords “any cheque” and “other liability” occurring in Section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. These expressions leave no manner of doubt that for whatever reason it may be, the liability under Section 138 cannot be avoided in the event the chequestands returned by the banker unpaid. Any contra-interpretation would defeat the intent of the legislature. The High Court got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act.…….The language, however, has been rather specific as regard the intent of the legislature. The commencement of the section stands with the words “where any cheque”. The above noted three words are of extreme significance, in particular, by reason of the user of the word “any” - the first three words suggest that in fact for whatever reason if a chequeis drawn on an account maintained by him with a banker in favourof another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.” 19. Looking to the facts of the case and law on the subject, we are of the view that all the four chequesreferred to in both the complaints are presumed to have been given for consideration. The presumption under Section 139 of the Act has not been rebutted by the accused and, therefore, we are of the view that the trial court wrongly acquitted the accused by taking a view that there was no consideration for which the chequeswere given by MunishJain to the complainants. The aforesaid incorrect view was wrongly confirmed by the High Court. We, therefore, set aside the acquittal order and convict accused MunishJain under Section 138 of the Act.20. In view of the aforestatedfacts and legal position, in our opinion, the accused ought to have been held guilty, especially accused no. 4, MunishJain who had signed all the chequesfor M/s A.T. Overseas Ltd. We, therefore, hold MunishJain, accused no. 4 and respondent no. 4 herein, in both the cases guilty of the offence under Section 138 of the Act. | 1[ds]14. Upon perusal of the record, we find that the complainants had established before the trial court that there was an understanding among the complainants and the accused that in consideration of supply of goods to M/s. ShreeNathSpinners Pvt. Ltd., M/s. A.T. Overseas Ltd. was to make the payment. The aforestatedunderstanding was on account of the fact that directors in both the aforestatedcompanies were common and the aforestatedcompanies were sister concerns. In the circumstances, it can be very well said and it has been proved that in consideration of supply of goods to M/s. ShreeNathSpinners Pvt. Ltd., M/s. A.T. Overseas Ltd. had made the payment. In view of the above fact, in our opinion, the trial court was not right when it came to the conclusion that there was no reason for M/s. A.T. Overseas Ltd. to give the chequesto the complainants. The aforestatedfacts are very well reflected in the statement made in the complaint and in the evidence by the complainant whichhave not been controverted. Paras2 and 3 of the complaint are reproduced hereinThat the accused had business dealings with the complainant and supply of the goods which duly supplied by my client vide separate bills from time to time which was duly acknowledged by the accused no. 5 VarunJain director of the accused no. 1.3. That in order to discharge the liability of making the payment, the accused issued following two chequesin favourof the complainant through their sister concern M/S A.T. Overseas Ltd. i.e. Accused No. 1 and the chequeswere duly signed by Mr. MunishJain one of itsThe trial court materially erred while coming to a conclusion that in criminal law no presumption can be raised with regard to consideration as no goods had been supplied by the complainants to M/s. A.T. Overseas Ltd..The trial court ought to have considered provisions of Section 139 of the Act, which reads asPresumption in favourof holder - It shall be presumed, unless the contrary is proved, that the holder of a chequereceived the chequeof the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.According to the provisions of the aforestatedsection, there is a presumption with regard to consideration when a chequehas been paid by the drawer of the cheque. In the instant case, M/s. A.T. Overseas Ltd. paid the chequewhich had been duly signed by one of its Directors, namely, MunishJain. MunishJain is also a Director in M/s. ShreeNathSpinners Pvt. Ltd..As stated hereinabove, both are sister concerns having common Directors. Extracts of books of accounts had been produced before the trial court so as to show that both the companies were having several transactions and the companies used to pay on behalf of each other to other parties or their creditors. The above fact strengthens the presumption to the effect that M/s. A.T. Overseas Ltd. had paid the chequesto the complainants, which had been signed by MunishJain, in consideration of goods supplies to M/s ShreeNathSpinners Pvt. Ltd. Of course, the presumption referred to in Section 139 is rebuttable. In the instant case, no effort was made by MunishJain or any of the Directors of M/s. A.T. Overseas Ltd. for rebuttal of the aforestatedpresumption and, therefore, the presumption must go in favourof the holder of the cheques. Unfortunately, the trial court did not consider the above facts and came to the conclusion that there was no consideration for the chequeswhich had been given by M/s. A.T. Overseas Ltd. to the complainants.17. It is true that a limited company is a separate legal entity and its directors are different legal persons. In spite of the aforestatedlegal position, in view of the provisions of Section 139 of the Act and the understanding which had been arrived at among the complainants and the accused, one can safely come to a conclusion that the chequessigned by MunishJain had been given by M/s. A.T. Overseas Ltd. to the complainants in discharge of a debt or a liability, which had been incurred by M/s ShreeNathSpinners Pvt. Ltd.18. We may also refer to the judgment delivered by this Court in the case of ICDS Ltd. (supra). In the said judgment this Court has referred to the nature of liability which is incurred by the one who is a drawer of the cheque. If the chequeis given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the chequecan be made liable under Section 138 of the Act. The relevant observation made in the aforestatedjudgment is asoccurring in Section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. These expressions leave no manner of doubt that for whatever reason it may be, the liability under Section 138 cannot be avoided in the event the chequestands returned by the banker unpaid. Any contra-interpretation would defeat the intent of the legislature. The High Court got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act.…….The language, however, has been rather specific as regard the intent of the legislature. The commencement of the section stands with the wordsThe above noted three words are of extreme significance, in particular, by reason of the user of the word- the first three words suggest that in fact for whatever reason if a chequeis drawn on an account maintained by him with a banker in favourof another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.Looking to the facts of the case and law on the subject, we are of the view that all the four chequesreferred to in both the complaints are presumed to have been given for consideration. The presumption under Section 139 of the Act has not been rebutted by the accused and, therefore, we are of the view that the trial court wrongly acquitted the accused by taking a view that there was no consideration for which the chequeswere given by MunishJain to the complainants. The aforesaid incorrect view was wrongly confirmed by the High Court. We, therefore, set aside the acquittal order and convict accused MunishJain under Section 138 of the Act.20. In view of the aforestatedfacts and legal position, in our opinion, the accused ought to have been held guilty, especially accused no. 4, MunishJain who had signed all the chequesfor M/s A.T. Overseas Ltd. We, therefore, hold MunishJain, accused no. 4 and respondent no. 4 herein, in both the cases guilty of the offence under Section 138 of the Act. | 1 | 2,765 | 1,323 | ### Instruction:
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two chequesin favourof the complainant through their sister concern M/S A.T. Overseas Ltd. i.e. Accused No. 1 and the chequeswere duly signed by Mr. MunishJain one of its directors” 15. The trial court materially erred while coming to a conclusion that in criminal law no presumption can be raised with regard to consideration as no goods had been supplied by the complainants to M/s. A.T. Overseas Ltd..The trial court ought to have considered provisions of Section 139 of the Act, which reads as under:- “139. Presumption in favourof holder - It shall be presumed, unless the contrary is proved, that the holder of a chequereceived the chequeof the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 16. According to the provisions of the aforestatedsection, there is a presumption with regard to consideration when a chequehas been paid by the drawer of the cheque. In the instant case, M/s. A.T. Overseas Ltd. paid the chequewhich had been duly signed by one of its Directors, namely, MunishJain. MunishJain is also a Director in M/s. ShreeNathSpinners Pvt. Ltd..As stated hereinabove, both are sister concerns having common Directors. Extracts of books of accounts had been produced before the trial court so as to show that both the companies were having several transactions and the companies used to pay on behalf of each other to other parties or their creditors. The above fact strengthens the presumption to the effect that M/s. A.T. Overseas Ltd. had paid the chequesto the complainants, which had been signed by MunishJain, in consideration of goods supplies to M/s ShreeNathSpinners Pvt. Ltd. Of course, the presumption referred to in Section 139 is rebuttable. In the instant case, no effort was made by MunishJain or any of the Directors of M/s. A.T. Overseas Ltd. for rebuttal of the aforestatedpresumption and, therefore, the presumption must go in favourof the holder of the cheques. Unfortunately, the trial court did not consider the above facts and came to the conclusion that there was no consideration for the chequeswhich had been given by M/s. A.T. Overseas Ltd. to the complainants.17. It is true that a limited company is a separate legal entity and its directors are different legal persons. In spite of the aforestatedlegal position, in view of the provisions of Section 139 of the Act and the understanding which had been arrived at among the complainants and the accused, one can safely come to a conclusion that the chequessigned by MunishJain had been given by M/s. A.T. Overseas Ltd. to the complainants in discharge of a debt or a liability, which had been incurred by M/s ShreeNathSpinners Pvt. Ltd.18. We may also refer to the judgment delivered by this Court in the case of ICDS Ltd. (supra). In the said judgment this Court has referred to the nature of liability which is incurred by the one who is a drawer of the cheque. If the chequeis given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the chequecan be made liable under Section 138 of the Act. The relevant observation made in the aforestatedjudgment is as under: “ Thewords “any cheque” and “other liability” occurring in Section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. These expressions leave no manner of doubt that for whatever reason it may be, the liability under Section 138 cannot be avoided in the event the chequestands returned by the banker unpaid. Any contra-interpretation would defeat the intent of the legislature. The High Court got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act.…….The language, however, has been rather specific as regard the intent of the legislature. The commencement of the section stands with the words “where any cheque”. The above noted three words are of extreme significance, in particular, by reason of the user of the word “any” - the first three words suggest that in fact for whatever reason if a chequeis drawn on an account maintained by him with a banker in favourof another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.” 19. Looking to the facts of the case and law on the subject, we are of the view that all the four chequesreferred to in both the complaints are presumed to have been given for consideration. The presumption under Section 139 of the Act has not been rebutted by the accused and, therefore, we are of the view that the trial court wrongly acquitted the accused by taking a view that there was no consideration for which the chequeswere given by MunishJain to the complainants. The aforesaid incorrect view was wrongly confirmed by the High Court. We, therefore, set aside the acquittal order and convict accused MunishJain under Section 138 of the Act.20. In view of the aforestatedfacts and legal position, in our opinion, the accused ought to have been held guilty, especially accused no. 4, MunishJain who had signed all the chequesfor M/s A.T. Overseas Ltd. We, therefore, hold MunishJain, accused no. 4 and respondent no. 4 herein, in both the cases guilty of the offence under Section 138 of the Act.
### Response:
1
### Explanation:
accused no. 5 VarunJain director of the accused no. 1.3. That in order to discharge the liability of making the payment, the accused issued following two chequesin favourof the complainant through their sister concern M/S A.T. Overseas Ltd. i.e. Accused No. 1 and the chequeswere duly signed by Mr. MunishJain one of itsThe trial court materially erred while coming to a conclusion that in criminal law no presumption can be raised with regard to consideration as no goods had been supplied by the complainants to M/s. A.T. Overseas Ltd..The trial court ought to have considered provisions of Section 139 of the Act, which reads asPresumption in favourof holder - It shall be presumed, unless the contrary is proved, that the holder of a chequereceived the chequeof the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.According to the provisions of the aforestatedsection, there is a presumption with regard to consideration when a chequehas been paid by the drawer of the cheque. In the instant case, M/s. A.T. Overseas Ltd. paid the chequewhich had been duly signed by one of its Directors, namely, MunishJain. MunishJain is also a Director in M/s. ShreeNathSpinners Pvt. Ltd..As stated hereinabove, both are sister concerns having common Directors. Extracts of books of accounts had been produced before the trial court so as to show that both the companies were having several transactions and the companies used to pay on behalf of each other to other parties or their creditors. The above fact strengthens the presumption to the effect that M/s. A.T. Overseas Ltd. had paid the chequesto the complainants, which had been signed by MunishJain, in consideration of goods supplies to M/s ShreeNathSpinners Pvt. Ltd. Of course, the presumption referred to in Section 139 is rebuttable. In the instant case, no effort was made by MunishJain or any of the Directors of M/s. A.T. Overseas Ltd. for rebuttal of the aforestatedpresumption and, therefore, the presumption must go in favourof the holder of the cheques. Unfortunately, the trial court did not consider the above facts and came to the conclusion that there was no consideration for the chequeswhich had been given by M/s. A.T. Overseas Ltd. to the complainants.17. It is true that a limited company is a separate legal entity and its directors are different legal persons. In spite of the aforestatedlegal position, in view of the provisions of Section 139 of the Act and the understanding which had been arrived at among the complainants and the accused, one can safely come to a conclusion that the chequessigned by MunishJain had been given by M/s. A.T. Overseas Ltd. to the complainants in discharge of a debt or a liability, which had been incurred by M/s ShreeNathSpinners Pvt. Ltd.18. We may also refer to the judgment delivered by this Court in the case of ICDS Ltd. (supra). In the said judgment this Court has referred to the nature of liability which is incurred by the one who is a drawer of the cheque. If the chequeis given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the chequecan be made liable under Section 138 of the Act. The relevant observation made in the aforestatedjudgment is asoccurring in Section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. These expressions leave no manner of doubt that for whatever reason it may be, the liability under Section 138 cannot be avoided in the event the chequestands returned by the banker unpaid. Any contra-interpretation would defeat the intent of the legislature. The High Court got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act.…….The language, however, has been rather specific as regard the intent of the legislature. The commencement of the section stands with the wordsThe above noted three words are of extreme significance, in particular, by reason of the user of the word- the first three words suggest that in fact for whatever reason if a chequeis drawn on an account maintained by him with a banker in favourof another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.Looking to the facts of the case and law on the subject, we are of the view that all the four chequesreferred to in both the complaints are presumed to have been given for consideration. The presumption under Section 139 of the Act has not been rebutted by the accused and, therefore, we are of the view that the trial court wrongly acquitted the accused by taking a view that there was no consideration for which the chequeswere given by MunishJain to the complainants. The aforesaid incorrect view was wrongly confirmed by the High Court. We, therefore, set aside the acquittal order and convict accused MunishJain under Section 138 of the Act.20. In view of the aforestatedfacts and legal position, in our opinion, the accused ought to have been held guilty, especially accused no. 4, MunishJain who had signed all the chequesfor M/s A.T. Overseas Ltd. We, therefore, hold MunishJain, accused no. 4 and respondent no. 4 herein, in both the cases guilty of the offence under Section 138 of the Act.
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S.T.O., Sector II, Kanpur and Others Vs. Jwala Prasad, (Dead) By Lrs | 1. On undisputed facts as found on the record it is impossible to sustain the impugned order of the High Court quashing the assessment orders passed against the firm M/s. Jwala Prasad Krishna Pal for the years 1957-58 to 1961-62.2. Initially the respondent Jwala Prasad (since deceased) came to the court with the case that the kirana business carried on in the name and style of M/s. Jwala Prasad Kishan Pal was a proprietory business of his son, Ram Pal, and therefore, he was not liable for the sales tax due of the said business carried on by Ram Pal. But on the material that was brought on record, particularly the partnership deed dated November 20, 1961 it became clear that the business belonged to the joint family of which the respondent was the karta and was not the proprietory business of Ram Pal. The Revenue, therefore, sought to hold the respondent liable for the dues of the family business. Thereupon the respondent amended his writ petition claiming that the assessment orders were invalid because no notice of the assessment proceedings was served upon him. The High Court took the view that it was incumbent upon the sales tax authorities to serve a notice of the proposed assessment proceedings upon the karta and non-service of such notice upon the respondent vitiated the assessment orders.3. Once the court came to the conclusion that the business carried on in the name of M/s. Jwala Prasad Kishan Pal was a joint family business and not a proprietory business of Shri Ram Pal, it was difficult for the respondent to avoid the liability of the tax dues arising from the assessment made on the such joint family business. Further it has also been found on record that the said joint family business was actually managed by Ram Pal and before making assessments for the years in questions notices were served on Ram Pal, though not on the respondent as karta. But it is clear under Rule 77 that service of notice effected on Ram Pal, who was in actual management of the business, would be proper service and the assessments made on the joint family firm would also be proper. In fact, against the assessments made appeals were preferred by Ram Pal to the Appellate Authority. In our view, the assessment orders, therefore, could not be quashed or set aside on the ground that on notice had been served upon the respondent as karta before assessing the joint family business. Further, recovery from the respondent could not be avoided by him because he would be liable in respect of the demand arising against the business of the joint family of which he was a member. | 1[ds]3. Once the court came to the conclusion that the business carried on in the name of M/s. Jwala Prasad Kishan Pal was a joint family business and not a proprietory business of Shri Ram Pal, it was difficult for the respondent to avoid the liability of the tax dues arising from the assessment made on the such joint family business. Further it has also been found on record that the said joint family business was actually managed by Ram Pal and before making assessments for the years in questions notices were served on Ram Pal, though not on the respondent as karta. But it is clear under Rule 77 that service of notice effected on Ram Pal, who was in actual management of the business, would be proper service and the assessments made on the joint family firm would also be proper. In fact, against the assessments made appeals were preferred by Ram Pal to the Appellate Authority. In our view, the assessment orders, therefore, could not be quashed or set aside on the ground that on notice had been served upon the respondent as karta before assessing the joint family business. Further, recovery from the respondent could not be avoided by him because he would be liable in respect of the demand arising against the business of the joint family of which he was a member. | 1 | 485 | 249 | ### 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:
1. On undisputed facts as found on the record it is impossible to sustain the impugned order of the High Court quashing the assessment orders passed against the firm M/s. Jwala Prasad Krishna Pal for the years 1957-58 to 1961-62.2. Initially the respondent Jwala Prasad (since deceased) came to the court with the case that the kirana business carried on in the name and style of M/s. Jwala Prasad Kishan Pal was a proprietory business of his son, Ram Pal, and therefore, he was not liable for the sales tax due of the said business carried on by Ram Pal. But on the material that was brought on record, particularly the partnership deed dated November 20, 1961 it became clear that the business belonged to the joint family of which the respondent was the karta and was not the proprietory business of Ram Pal. The Revenue, therefore, sought to hold the respondent liable for the dues of the family business. Thereupon the respondent amended his writ petition claiming that the assessment orders were invalid because no notice of the assessment proceedings was served upon him. The High Court took the view that it was incumbent upon the sales tax authorities to serve a notice of the proposed assessment proceedings upon the karta and non-service of such notice upon the respondent vitiated the assessment orders.3. Once the court came to the conclusion that the business carried on in the name of M/s. Jwala Prasad Kishan Pal was a joint family business and not a proprietory business of Shri Ram Pal, it was difficult for the respondent to avoid the liability of the tax dues arising from the assessment made on the such joint family business. Further it has also been found on record that the said joint family business was actually managed by Ram Pal and before making assessments for the years in questions notices were served on Ram Pal, though not on the respondent as karta. But it is clear under Rule 77 that service of notice effected on Ram Pal, who was in actual management of the business, would be proper service and the assessments made on the joint family firm would also be proper. In fact, against the assessments made appeals were preferred by Ram Pal to the Appellate Authority. In our view, the assessment orders, therefore, could not be quashed or set aside on the ground that on notice had been served upon the respondent as karta before assessing the joint family business. Further, recovery from the respondent could not be avoided by him because he would be liable in respect of the demand arising against the business of the joint family of which he was a member.
### Response:
1
### Explanation:
3. Once the court came to the conclusion that the business carried on in the name of M/s. Jwala Prasad Kishan Pal was a joint family business and not a proprietory business of Shri Ram Pal, it was difficult for the respondent to avoid the liability of the tax dues arising from the assessment made on the such joint family business. Further it has also been found on record that the said joint family business was actually managed by Ram Pal and before making assessments for the years in questions notices were served on Ram Pal, though not on the respondent as karta. But it is clear under Rule 77 that service of notice effected on Ram Pal, who was in actual management of the business, would be proper service and the assessments made on the joint family firm would also be proper. In fact, against the assessments made appeals were preferred by Ram Pal to the Appellate Authority. In our view, the assessment orders, therefore, could not be quashed or set aside on the ground that on notice had been served upon the respondent as karta before assessing the joint family business. Further, recovery from the respondent could not be avoided by him because he would be liable in respect of the demand arising against the business of the joint family of which he was a member.
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GURUSWAMY Vs. DY.COMMNR.,SHIMOGA DISTT. & ORS | 1. This appeal is directed against the judgment and order dated 31st July, 1998 passed by the Division Bench of the High Court of Karnataka in Writ appeal No.2722 of 1998.2. Land measuring 3 acres 25 guntas in Survey No.40 situated in Sanda Village of Shakaripur Taluk, Shimoga District (Karnataka) was allegedly granted to one Basavanayappa (deceased) and now represented by his legal representatives Chowdamma and Guramma.3. Basavanayappa sold the land in 1958 in favour of one Mruthyunjayappa who then sold the land to the appellant, i.e., Guruswamy on 31st January, 1984 under a registered sale deed.4. The legal representatives of Basavanayappa then filed a petition for restoration of the land and for a declaration that the sale made by Mruthyunjayappa in favour of Guruswamy was void and contrary to Section 4(1) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979 (for short ?the Act?). An enquiry was conducted by the Assistant Commissioner on the basis of the application made by the legal representatives of Basavanayappa and he passed an order to the effect that the sale was in violation of the Act and, therefore, directed restoration of the land.5. Feeling aggrieved, Guruswamy preferred an appeal and the Appellate Authority then remanded the matter to the Assistant Commissioner for fresh consideration. After the remand, the Assistant Commissioner passed an order on 9 th October, 1991 in which it was held that the land was ?darkhast haraj?, which is to say that it was land sold by auction and it was not grantee land.6. Feeling aggrieved, Basavanayappa preferred an appeal before the Deputy Commissioner, but that appeal came to be dismissed by an order dated 2nd January, 1997.7. Against the orders passed by the Revenue Authorities, Basavanayappa preferred a writ petition which was allowed by the learned Single Judge by an order dated 8th June, 1998. Against this order passed by the learned Single Judge, a writ appeal was preferred by Guruswamy and that came to be dismissed by the impugned judgment and order.8. We have heard learned counsel for the parties and note that the Revenue Authorities had recorded as a matter of fact that there was nothing to indicate that a grant had been made in favour of Basavanyappa and that on the contrary the land was sold by public auction and was subsequently purchased by Mruthunjayappa, who in turn sold it to Guruswamy in 1984.9. The Division Bench of the High Court perused the original file and found that the grant certificate was not on record. What was on record was only a xerox copy of the grant certificate and some portion of that xerox copy was struck off.10. Notwithstanding this, the Division Bench relied upon the xerox copy and came to the conclusion that the land was originally allotted to Basavanayappa by way of a grant. On this basis and considering the provisions of the Act, it was held that the sale to Mruthyunjayappa was void and, consequently, further sale in favour of Guruswamy was void.11. In our opinion, the High Court was in error in relying upon a photocopy of a document which had cuttings on it. The document could not be relied upon in that condition. The burden was on the legal representatives of Basavanayappa to produce the grant to substantiate their case, but they were unable to do so. On the other hand, the Revenue Authorities had come to a clear conclusion that the land was not grantee land. In view of this and in the absence of any conclusion that the findings of the Revenue Authorities were perverse or based on no material, the High Court was in error in setting aside the finding of fact recorded by the Revenue Authorities. | 1[ds]8. We have heard learned counsel for the parties and note that the Revenue Authorities had recorded as a matter of fact that there was nothing to indicate that a grant had been made in favour of Basavanyappa and that on the contrary the land was sold by public auction and was subsequently purchased by Mruthunjayappa, who in turn sold it to Guruswamy in 19849. The Division Bench of the High Court perused the original file and found that the grant certificate was not on record. What was on record was only a xerox copy of the grant certificate and some portion of that xerox copy was struck off10. Notwithstanding this, the Division Bench relied upon the xerox copy and came to the conclusion that the land was originally allotted to Basavanayappa by way of a grant. On this basis and considering the provisions of the Act, it was held that the sale to Mruthyunjayappa was void and, consequently, further sale in favour of Guruswamy was void11. In our opinion, the High Court was in error in relying upon a photocopy of a document which had cuttings on it. The document could not be relied upon in that condition. The burden was on the legal representatives of Basavanayappa to produce the grant to substantiate their case, but they were unable to do so. On the other hand, the Revenue Authorities had come to a clear conclusion that the land was not grantee land. In view of this and in the absence of any conclusion that the findings of the Revenue Authorities were perverse or based on no material, the High Court was in error in setting aside the finding of fact recorded by the Revenue Authorities. | 1 | 688 | 310 | ### 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:
1. This appeal is directed against the judgment and order dated 31st July, 1998 passed by the Division Bench of the High Court of Karnataka in Writ appeal No.2722 of 1998.2. Land measuring 3 acres 25 guntas in Survey No.40 situated in Sanda Village of Shakaripur Taluk, Shimoga District (Karnataka) was allegedly granted to one Basavanayappa (deceased) and now represented by his legal representatives Chowdamma and Guramma.3. Basavanayappa sold the land in 1958 in favour of one Mruthyunjayappa who then sold the land to the appellant, i.e., Guruswamy on 31st January, 1984 under a registered sale deed.4. The legal representatives of Basavanayappa then filed a petition for restoration of the land and for a declaration that the sale made by Mruthyunjayappa in favour of Guruswamy was void and contrary to Section 4(1) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979 (for short ?the Act?). An enquiry was conducted by the Assistant Commissioner on the basis of the application made by the legal representatives of Basavanayappa and he passed an order to the effect that the sale was in violation of the Act and, therefore, directed restoration of the land.5. Feeling aggrieved, Guruswamy preferred an appeal and the Appellate Authority then remanded the matter to the Assistant Commissioner for fresh consideration. After the remand, the Assistant Commissioner passed an order on 9 th October, 1991 in which it was held that the land was ?darkhast haraj?, which is to say that it was land sold by auction and it was not grantee land.6. Feeling aggrieved, Basavanayappa preferred an appeal before the Deputy Commissioner, but that appeal came to be dismissed by an order dated 2nd January, 1997.7. Against the orders passed by the Revenue Authorities, Basavanayappa preferred a writ petition which was allowed by the learned Single Judge by an order dated 8th June, 1998. Against this order passed by the learned Single Judge, a writ appeal was preferred by Guruswamy and that came to be dismissed by the impugned judgment and order.8. We have heard learned counsel for the parties and note that the Revenue Authorities had recorded as a matter of fact that there was nothing to indicate that a grant had been made in favour of Basavanyappa and that on the contrary the land was sold by public auction and was subsequently purchased by Mruthunjayappa, who in turn sold it to Guruswamy in 1984.9. The Division Bench of the High Court perused the original file and found that the grant certificate was not on record. What was on record was only a xerox copy of the grant certificate and some portion of that xerox copy was struck off.10. Notwithstanding this, the Division Bench relied upon the xerox copy and came to the conclusion that the land was originally allotted to Basavanayappa by way of a grant. On this basis and considering the provisions of the Act, it was held that the sale to Mruthyunjayappa was void and, consequently, further sale in favour of Guruswamy was void.11. In our opinion, the High Court was in error in relying upon a photocopy of a document which had cuttings on it. The document could not be relied upon in that condition. The burden was on the legal representatives of Basavanayappa to produce the grant to substantiate their case, but they were unable to do so. On the other hand, the Revenue Authorities had come to a clear conclusion that the land was not grantee land. In view of this and in the absence of any conclusion that the findings of the Revenue Authorities were perverse or based on no material, the High Court was in error in setting aside the finding of fact recorded by the Revenue Authorities.
### Response:
1
### Explanation:
8. We have heard learned counsel for the parties and note that the Revenue Authorities had recorded as a matter of fact that there was nothing to indicate that a grant had been made in favour of Basavanyappa and that on the contrary the land was sold by public auction and was subsequently purchased by Mruthunjayappa, who in turn sold it to Guruswamy in 19849. The Division Bench of the High Court perused the original file and found that the grant certificate was not on record. What was on record was only a xerox copy of the grant certificate and some portion of that xerox copy was struck off10. Notwithstanding this, the Division Bench relied upon the xerox copy and came to the conclusion that the land was originally allotted to Basavanayappa by way of a grant. On this basis and considering the provisions of the Act, it was held that the sale to Mruthyunjayappa was void and, consequently, further sale in favour of Guruswamy was void11. In our opinion, the High Court was in error in relying upon a photocopy of a document which had cuttings on it. The document could not be relied upon in that condition. The burden was on the legal representatives of Basavanayappa to produce the grant to substantiate their case, but they were unable to do so. On the other hand, the Revenue Authorities had come to a clear conclusion that the land was not grantee land. In view of this and in the absence of any conclusion that the findings of the Revenue Authorities were perverse or based on no material, the High Court was in error in setting aside the finding of fact recorded by the Revenue Authorities.
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Shalimar Chemical Works Ltd Vs. Surendra Oil & Dal Mills (Refineries) & Others | and so, it cannot strictly say that it requires additional evidence ‘to enable it to pronounce judgment’, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence ‘for any other substantial cause’ under Rule 27(1)(b) of the Code.“ 9. Mr. Rao further submitted that the very narrow view of Order 41 Rule 27 taken by the division bench has only led to frustrate the ends of justice. In order to lend strength to his submission, Mr. Rao referred to the illuminating and perennially relevant passage from the judgment of Vivian Bose, J. in Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya, 1955 (2) SCR 1 ( at page 8): “Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.” 10. Mr. P.S. Narasimha, learned Senior Advocate, appearing for the respondents submitted that in terms of Section 31 of the Trade and Merchandise Marks Act, 1958 original registration certificate of the trade mark was the primary evidence in the case instituted by the appellant and in the absence of the original registration certificates brought on record, the only course open to the trial Court was to dismiss the suit, which it rightly did. Mr. Narasimha further pointed out that the learned Single Judge after taking the originals on record, straightaway proceeded to pronounce the final judgment in the appeal even without allowing the defendants/respondents an opportunity of rebuttal. The denial of any opportunity of rebuttal of the additional evidence taken by the appellate Court caused immense prejudice to the defendants/respondents.11. To an extent Mr. Narasimha is justified in his submission. Having regard to the manner in which the proceedings took place before the trial Court, the learned Single Judge was not unjustified in taking the originals of the certificates of registration as additional documents but the error lay in the fact that the learned Single Judge allowed the application for taking additional evidence and at the same time proceeded to finally allow the appeal on the basis of the evidence taken by him on record. Alluding to this aspect of the matter, the Division Bench made the following criticism: “We have seen that the cross-examination of P.W.1 was very brief and it only related to the fact that the photo stat were being produced. Any good lawyer would do the same thing, but had the original documents been produced, which were admissible in evidence at the time of trial, the cross-examination perhaps would have covered these documents as well. Once the learned Single Judge, had decided to allow the plaintiff to produce the documents, then it was necessary also to provide an opportunity to the defendants to further cross-examine the witness who produced those documents. But we have seen from the judgment of the learned single Judge that the application under Order 41 Rule 27 of the Code was decided along with the appeals itself.” 12. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial Court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. The learned Single Judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under Clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so. The judgment and order dated April 25, 2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28. | 1[ds]12. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial Court should not haveas exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subjectto objection of proof andadmissibility The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. The learned Single Judge rightly allowed theplea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under Clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so. The judgment and order dated April 25, 2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28. | 1 | 3,261 | 450 | ### 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:
and so, it cannot strictly say that it requires additional evidence ‘to enable it to pronounce judgment’, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence ‘for any other substantial cause’ under Rule 27(1)(b) of the Code.“ 9. Mr. Rao further submitted that the very narrow view of Order 41 Rule 27 taken by the division bench has only led to frustrate the ends of justice. In order to lend strength to his submission, Mr. Rao referred to the illuminating and perennially relevant passage from the judgment of Vivian Bose, J. in Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya, 1955 (2) SCR 1 ( at page 8): “Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.” 10. Mr. P.S. Narasimha, learned Senior Advocate, appearing for the respondents submitted that in terms of Section 31 of the Trade and Merchandise Marks Act, 1958 original registration certificate of the trade mark was the primary evidence in the case instituted by the appellant and in the absence of the original registration certificates brought on record, the only course open to the trial Court was to dismiss the suit, which it rightly did. Mr. Narasimha further pointed out that the learned Single Judge after taking the originals on record, straightaway proceeded to pronounce the final judgment in the appeal even without allowing the defendants/respondents an opportunity of rebuttal. The denial of any opportunity of rebuttal of the additional evidence taken by the appellate Court caused immense prejudice to the defendants/respondents.11. To an extent Mr. Narasimha is justified in his submission. Having regard to the manner in which the proceedings took place before the trial Court, the learned Single Judge was not unjustified in taking the originals of the certificates of registration as additional documents but the error lay in the fact that the learned Single Judge allowed the application for taking additional evidence and at the same time proceeded to finally allow the appeal on the basis of the evidence taken by him on record. Alluding to this aspect of the matter, the Division Bench made the following criticism: “We have seen that the cross-examination of P.W.1 was very brief and it only related to the fact that the photo stat were being produced. Any good lawyer would do the same thing, but had the original documents been produced, which were admissible in evidence at the time of trial, the cross-examination perhaps would have covered these documents as well. Once the learned Single Judge, had decided to allow the plaintiff to produce the documents, then it was necessary also to provide an opportunity to the defendants to further cross-examine the witness who produced those documents. But we have seen from the judgment of the learned single Judge that the application under Order 41 Rule 27 of the Code was decided along with the appeals itself.” 12. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial Court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. The learned Single Judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under Clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so. The judgment and order dated April 25, 2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28.
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12. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial Court should not haveas exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subjectto objection of proof andadmissibility The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. The learned Single Judge rightly allowed theplea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under Clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so. The judgment and order dated April 25, 2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28.
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Employees' State Insurance Corporation and Another Vs. G.N. Mathur and Others | and (such director) shall, so long as he is so resident, be deemed to be the occupier of the factory for the purposes of this Chapter, until further notice cancelling his nomination is received by the Inspector or unitil he (ceases to be a director).The plain reading of sub-section (2) makes it clear that the Company may nominate a director to be the occupier of the factory for the purpose of Chapter X and such nominee shall be deemed to be the occupier of the factory for the purpose of Chapter X only.5. Mr. Mehta submitted that respondent No. 1 was nominated as a Technical Director under sub-section (2) of section 100 of the Factories Act for the period commencing from May 1980 and ending with October 31, 1983. The learned Counsel urged that once respondent No. 1 was nominated as an occupier then respondent No. 1 becomes principal employer as defined under section 2(17)(i) of the Act and is liable to deposit employers contribution under section 40(1) of the Act. Mr. Talsania, learned Counsel appearing on behalf of respondent No. 1, on the other hand, submitted that respondent No. 1 was nominated as occupier under sub-section (2) of section 100 of the Factories Act and such nomination was only for the purpose of Chapter X of the Factories Act and such nominee cannot be treated as an occupier because respondent No. 1 is not established to be a person who has ultimate control over the affairs of the factory as required under section 2(n) of the Factories Act. In other words, the submission is that respondent No. 1 is not occupier under section 2(n) of the Factories Act but was only deemed to be an occupier for the purpose of Chapter X on nomination under sub-section (2) of section 100 of the Factories Act. Mr. Talsania also referred to the fact that the Corporation in the proceedings instituted by the directors to challenge service of notice for payment of employers contribution, has stated in affidavit that respondent No. 1 was not empowered to deal with financial matters. The learned Counsel urged that in these circumstances, respondent No. 1 cannot be held to be a principal employer under section 2(17)(i) of the Act and consequently declaration of the Employees State Insurance Court cannot be faulted.In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of sub-section (2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under sub-section (2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under sub-section (2) of section 100 cannot be treated as occupier under section 2(n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under sub-section (2) of section 100 but it is not necessary that the nominee under sub-section (2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under sub-section (2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the factory. Mr. Mehta found it extremely difficult to contend that respondent No. 1 had ultimate control over the affairs of Elphinstone Spinning and Weaving Mills. The learned Counsel conceded that respondent No. 1 was not empowered to deal with the financial matters and nothing was produced before the Employees State Insurance Court to indicate that respondent No. 1 had ultimate control over the affairs of the Mills.6. The expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under sub-section (2) of section 100 and consequently can never be considered as an occupier under section 2(n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2(17)(i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was in over-all charge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2(n) of the Factories Act and consequently not the principal employer under section 2(17)(i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2(17)(iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition. | 0[ds]In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of(2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under(2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under(2) of section 100 cannot be treated as occupier under section 2(n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under(2) of section 100 but it is not necessary that the nominee under(2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under(2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the factory. Mr. Mehta found it extremely difficult to contend that respondent No. 1 had ultimate control over the affairs of Elphinstone Spinning and Weaving Mills.The expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under(2) of section 100 and consequently can never be considered as an occupier under section 2(n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2(17)(i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was incharge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2(n) of the Factories Act and consequently not the principal employer under section 2(17)(i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2(17)(iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition. | 0 | 2,538 | 653 | ### Instruction:
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and (such director) shall, so long as he is so resident, be deemed to be the occupier of the factory for the purposes of this Chapter, until further notice cancelling his nomination is received by the Inspector or unitil he (ceases to be a director).The plain reading of sub-section (2) makes it clear that the Company may nominate a director to be the occupier of the factory for the purpose of Chapter X and such nominee shall be deemed to be the occupier of the factory for the purpose of Chapter X only.5. Mr. Mehta submitted that respondent No. 1 was nominated as a Technical Director under sub-section (2) of section 100 of the Factories Act for the period commencing from May 1980 and ending with October 31, 1983. The learned Counsel urged that once respondent No. 1 was nominated as an occupier then respondent No. 1 becomes principal employer as defined under section 2(17)(i) of the Act and is liable to deposit employers contribution under section 40(1) of the Act. Mr. Talsania, learned Counsel appearing on behalf of respondent No. 1, on the other hand, submitted that respondent No. 1 was nominated as occupier under sub-section (2) of section 100 of the Factories Act and such nomination was only for the purpose of Chapter X of the Factories Act and such nominee cannot be treated as an occupier because respondent No. 1 is not established to be a person who has ultimate control over the affairs of the factory as required under section 2(n) of the Factories Act. In other words, the submission is that respondent No. 1 is not occupier under section 2(n) of the Factories Act but was only deemed to be an occupier for the purpose of Chapter X on nomination under sub-section (2) of section 100 of the Factories Act. Mr. Talsania also referred to the fact that the Corporation in the proceedings instituted by the directors to challenge service of notice for payment of employers contribution, has stated in affidavit that respondent No. 1 was not empowered to deal with financial matters. The learned Counsel urged that in these circumstances, respondent No. 1 cannot be held to be a principal employer under section 2(17)(i) of the Act and consequently declaration of the Employees State Insurance Court cannot be faulted.In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of sub-section (2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under sub-section (2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under sub-section (2) of section 100 cannot be treated as occupier under section 2(n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under sub-section (2) of section 100 but it is not necessary that the nominee under sub-section (2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under sub-section (2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the factory. Mr. Mehta found it extremely difficult to contend that respondent No. 1 had ultimate control over the affairs of Elphinstone Spinning and Weaving Mills. The learned Counsel conceded that respondent No. 1 was not empowered to deal with the financial matters and nothing was produced before the Employees State Insurance Court to indicate that respondent No. 1 had ultimate control over the affairs of the Mills.6. The expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under sub-section (2) of section 100 and consequently can never be considered as an occupier under section 2(n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2(17)(i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was in over-all charge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2(n) of the Factories Act and consequently not the principal employer under section 2(17)(i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2(17)(iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition.
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In our judgment, the contention urged on behalf of respondent No. 1 deserves acceptance. The plain reading of(2) of section 100 of the Factories Act makes it clear that the person nominated shall be deemed to be an occupier for the purpose of Chapter X only and this Chapter deals with the subject of penalties and procedure. In other words, a person nominated under(2) would be required to face prosecution and punishment in respect of any contravention of the provisions of the Factories Act or rules framed thereunder. Such nomination which treats the nominee as a deemed occupier and only for Chapter X can, by no stretch of imagination, be extended beyond the limited purpose for which the nomination was made. The person nominated as an occupier under(2) of section 100 cannot be treated as occupier under section 2(n) of the Factories Act, unless such nominee has ultimate control over the affairs of the factory. It is possible that a person having ultimate control over the affairs of the factory may be nominated under(2) of section 100 but it is not necessary that the nominee under(2) must necessarily have the ultimate control over the affairs of the factory. Once this aspect is clear then it is obvious that respondent No. 1 who was nominated under(2) of section 100 cannot be treated as an occupier unless it is established by the Corporation that respondent No. 1 had ultimate control over the affairs of the factory. Mr. Mehta found it extremely difficult to contend that respondent No. 1 had ultimate control over the affairs of Elphinstone Spinning and Weaving Mills.The expression `ultimate control connotes that the person must have right to take policy decision in respect of running of the Mills. Respondent No. 1 was an employee who was merely designated as Technical Director, obviously for the purpose of nomination under(2) of section 100 and consequently can never be considered as an occupier under section 2(n) of the Factories Act and, therefore, was not `principal employer as contemplated under section 2(17)(i) of the Act. It also cannot be overlooked that notice served upon respondent No. 1 demands employers contribution for the period commencing from January 1977 and ending with September 1983 and in any event, respondent No. 1 was not even a Technical Director for the entire period. Respondent No. 1 was Technical Director from May 1980 to October 31, 1983. The Employees State Insurance Court rightly pointed out the Corporations claim in the affidavit filed in petitions filed by Directors in this Court that Ashokkumar Jalan, Director of the Company was incharge of the affairs of the Company and not respondent No. 1. The assertion of the Corporation clearly establishes that respondent No. 1 was not occupier under section 2(n) of the Factories Act and consequently not the principal employer under section 2(17)(i) of the Act. A faint effort was made by Mr. Mehta to suggest that respondent No. 1 can be treated as principal employer under section 2(17)(iii) of the Act but the submission is misconceived as the Corporation failed to produce any material to establish that respondent No. 1 was responsible for supervision and control over the establishment. In our judgment, the declaration given by the Employees State Insurance Court does not suffer from any infirmity and the learned Judge was right in dismissing the petition.
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Creative Tours & Travels (India) Private Limited Vs. Intellectual Property Appellate Board (Circuit Bench Sitting At Mumbai) & Others | a letter dated 2nd July 1997 produced by Respondent No.3 before it containing a suggestion by the Registrar of Companies to the Petitioner before us that some other name be adopted, as "CREATIVE" was not available now and it was already used by some other Company. Yet, the Petitioner applied and wished to use the same name. The Board then referred to the specific argument of the Applicant before it / Respondent No.3 before us, that it has been using the mark and name since 1977. After noting all the contentions and the Judgments relied upon, what is specifically noted is the argument by the Petitioner that provisions of Section 12 of the Trade Marks Act, 1999 are not applicable, as the adoption is honest. After hearing both the parties, the Board reserved its orders, but, later on, certain documents were filed. Those were public documents, including some of the communications from the Registrar of Companies. It, therefore, permitted the Applicant (Respondent No.3) before it to file the documents along with an application styled as Miscellaneous Petition No.233 of 2012. It also gave opportunity to the Petitioner to file its documents and, equally, reply and rejoinder to the Miscellaneous Petition. The Miscellaneous Petition was heard and thereafter the Board, in the interest of justice, granted opportunity to produce the documents. All these documents are, thus, referred to by the Board, from Para 48. It then proceeded to consider the rival contentions.We are in agreement with Mr. Rao that, as far as the locus standi of the Applicant / Respondent No.3 before us, it has not been disputed. What is then material and relevant to note is the evidence that the Petitioner before us produces to support its version of honest concurrent use. The burden to prove that version was entirely upon the Petitioner. The burden to prove the assertion of honest concurrent use, in the opinion of the Board, has not been discharged by the Petitioner. The Board firstly refers to the e-mail demanding payment. That, according to the Board, is one of the supporting materials. That would indicate that both marks remaining on the register is likely to cause confusion. Then it relies upon a communication by the Registrar of Companies dated 2nd July 1997 addressed to the Petitioner before us. If the Registrar brought to the notice of the Petitioner that there was already another Company functional and in the name of Respondent No.3, then, he advised the Petitioner to choose some other name. The Petitioner has ignored that aspect. Apart therefrom, it asserted before the Board independently that it is using the trade mark since 12th August 1997. That was definitely a much later date in point of time. Before us what has been asserted is the usage is from 1979. That is admittedly not by the Petitioner and the registered Entity that it is now, namely, under a distinct Statute, the Indian Companies Act, 1956. The uninterrupted user is claimed and on the basis of the Sole Proprietors registration. However, we are concerned in this case with the two companies and it is the Companys version, which would have to be gone into and dealt with by the Board.The Board found that the Assessment Orders, Income Tax Returns, advertisement, awards etc. would not indicate that prior to 1997 or the registration, there was any user or from the registration, the use is stated to have commenced. That is, according to the Petitioner, also referable to first Assessment Order-1998. However, that is not in the name of the Petitioner-Company but an individual. The explanation now given for the same is that, there was no occasion for the Petitioner-Company to file Income Tax Returns in its name and as a company prior to its incorporation and registration. We are, therefore, of the clear view that this argument is an afterthought. The Petitioner went before the Board and relied upon its honest concurrent use as a Private Limited Company. When it produces the requisite materials, those are of 1998 and onwards. There is no evidence of the year 1997, much less from 1979. It is in these circumstances that the Board finds that there is no substance in the contentions raised on behalf of the Petitioner. The Board summarizes this conclusion possibly in one or two paragraphs. However, we do not find that the same is perverse or vitiated by non-application of mind, as criticized by Dr. Saraf. Thus, when there is no consistency in the version of the Petitioner and it has changed from time to time, then, this criticism is not warranted.43. In the present case, when the two Entities are Corporate Entities, namely, Companies and registered under the Indian Companies Act, 1956, then, it was for the Petitioner-Company to have established and proved its honest concurrent use. That is not established and proved, as is demanded in law. In such circumstances, we do not think that the Board committed any error in allowing the application filed by Respondent No.3 and expunging the trade mark from the register. The Board, thus, summarizes its conclusions and rightly in Para No.59. It has also concluded, on the basis of all the materials produced and order of assessment, that Respondent No.3 is prior user and that the Petitioner before us has not satisfied the Board as to the use, as claimed in the application for registration. The Board was, therefore, justified in issuing its ultimate direction of expunging of the mark from the register. The Board found that the figures of turnover would not establish and prove the Petitioners assertion of honest concurrent use since 1979.44. These figures and the success at the interim stage in the Suit before High Court of Delhi are not enough to prove the above plea. Something more was required to prove honesty and concurrent user. That was not brought on record by the Petitioner. Such a conclusion is neither perverse nor vitiated by any error of law apparent on the face of the record. | 0[ds]25. Therefore, the opinion of the Registrar in case of honest concurrent use or existence of other special circumstances permit registration by more than one proprietor of the trade marks, which are identical or similar in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose. Thus, in the case of honest concurrent use and with which we are concerned, the opinion of the Trade Mark Registrar shall be in accordance with Section 12 and the permission envisaged thereunder is irrespective of the fact that there is any trade mark already registered or not.26. On the application, that was filed by Respondent No.3, for rectification, a copy of which is also enclosed to the Petition, the impugned order has been passed. We permitted the parties to inspect the original record so as to convince us that the registration in favour of the Petitioner, as granted by the Registrar, is vitiated or otherwise. The foundation for the Rectification Application appears to be a notice styled as "Cease and Desist Notice", copy whereof is enclosed to the Petition at Page No.`327, "AnnexureThat was addressed to both, the Petitioner and one V.S. Abdul Karim. That claims that Respondent No.3 registered as "Creative Travel Private Limited" at New Delhi is a Company established in the year 1977 as a Private Limited Company. It is duly registered under the Indian Companies Act, 1956. The Company was established amongst others with an object to deal in destination management, corporate package, conferences and meetings. During the period of three decades, the Company claims to be in the field of tours and travels and it is a trade mark in itself. The global membership and the registration of the mark under the predecessor enactment, namely, Trade and Merchandise Marks Act, 1958 is relied upon together with the goodwill and reputation. It is based on the assertions in these notices that the Petitioner was called upon to discontinue and cease from using the mark or the impugned trademark "CREATIVE".27. True it is that, thereafter the action / suit for infringement was brought and presently that suit is pending. An interim application therein was duly filed, but that was contested by the Petitioner. That application was dismissed and Dr. Saraf seeks to rely upon the findings therein. It is submitted that these findings have been approved by a Division Bench of the same High Court in dismissing aAppeal. Even the Supreme Court upheld such an order and concurrently passed. However, we are of the view that the present proceedings, being distinct in nature, have to be viewed differently. The parameters and tests that have to be applied and by the Board are undisputed. Those are to be applied in the present proceedings, which are styled as rectification proceedings.In the case before us, the Petitioner itself contested the Respondent No.3s application on the assertion that there is honest concurrent use. Once that was the assertion and the Board was obliged to consider it, then, it was incumbent upon the Petitioner to have substantiated its plea with cogent and satisfactory evidence. The material that the Petitioner produced in that behalf was found to be lacking.38. True it is that, the Board could have elaborated the reasons assigned by it and in the manner done by us, but merely because it chooses to pass a short and brief order, does not mean that it is necessarily failing to apply its mind. It has not failed to apply its mind to the relevant materials. It has rather noted them and referred to them as well. In its lengthy narration of facts, grounds, it may have reproduced the contentions of both sides, but the Tribunal is aware of the materials produced by the parties as well. Once these materials were produced, the Board was well within its powers to consider the same and come to a conclusion as to whether they are adequate and sufficient enough to establish and prove the case of honest concurrent use.39. In that regard, what the Board has found and rightly is that the materials placed by the Petitioner are not such as would establish and prove its assertion of honest concurrent use. The Board has referred to the facts and pointed out as to how the Applicant before it, namely, Respondent No.3 before us, was in identical business and even its annual turnover has increased. It also claims to be established by one Mr. Ram Kohli, who was considered as the Goodwill Ambassador in the field of Tourism. How he has created new markets in United States, Germany and other European countries for India as a destination is referred to. He promoted the first charters from America in 1972 and after returning to India, founded the Respondentwhich is styled as "Creative Travel", which offers tours and travel services. That was founded in 1977. Thereafter its achievements are noted and it is clearly the case of Respondent No.3, the Applicant before the Board, that it is a registered proprietor of the trade mark "Creative Travel". The registrations are valid and subsisting. It is in the month of May 2006, that it came to know that Respondent No.1 before the Board, namely, the Petitioner before us, has adopted the trade name "Creative Tours and Travels (India) Private Limited" and is using the same in relation to tours and travels business. The application before Respondent No.1 does not suppress the pendency of the suit and rejection of the interim relief application therein. Thereafter, the Applicant (Respondent No.3) proceeds to challenge the registration and submits that the impugned trade mark is registered without sufficient cause and is wrongly remaining in the register and ought to be removed. The various provisions of the Trade Marks Act, 1999 are relied upon. Thereafter the grounds of removal are set out, as referred to in Para 8 of the impugned Judgment and Order. The rectification of the trade mark "CREATIVE" was sought.40. In answer thereto, it is the Petitioners case that it is in identical business from 1979. Firstly, it was Sole Proprietor and later on as a Private Limited Company. It also relied upon somewhat identical achievements and awards. It also relied upon the membership of the International Organization. It also relied upon the turnover for the yearand claiming registration of a trade mark inIt has claimed that it has a distinct colour scheme and style.41. It also seeks to rely upon the honest concurrent use from 1979 and without any interruption. Thus, the Suit in the High Court at Delhi apart, the proceedings before the IPAB were contested by the Petitioner before us on essentially this case. The Petitioner also relied upon numerous documents.42. In para 27 of the impugned Judgment, the Board refers to a letter dated 2nd July 1997 produced by Respondent No.3 before it containing a suggestion by the Registrar of Companies to the Petitioner before us that some other name be adopted, as "CREATIVE" was not available now and it was already used by some other Company. Yet, the Petitioner applied and wished to use the same name. The Board then referred to the specific argument of the Applicant before it / Respondent No.3 before us, that it has been using the mark and name since 1977. After noting all the contentions and the Judgments relied upon, what is specifically noted is the argument by the Petitioner that provisions of Section 12 of the Trade Marks Act, 1999 are not applicable, as the adoption is honest. After hearing both the parties, the Board reserved its orders, but, later on, certain documents were filed. Those were public documents, including some of the communications from the Registrar of Companies. It, therefore, permitted the Applicant (Respondent No.3) before it to file the documents along with an application styled as Miscellaneous Petition No.233 of 2012. It also gave opportunity to the Petitioner to file its documents and, equally, reply and rejoinder to the Miscellaneous Petition. The Miscellaneous Petition was heard and thereafter the Board, in the interest of justice, granted opportunity to produce the documents. All these documents are, thus, referred to by the Board, from Para 48. It then proceeded to consider the rival contentions.We are in agreement with Mr. Rao that, as far as the locus standi of the Applicant / Respondent No.3 before us, it has not been disputed. What is then material and relevant to note is the evidence that the Petitioner before us produces to support its version of honest concurrent use. The burden to prove that version was entirely upon the Petitioner. The burden to prove the assertion of honest concurrent use, in the opinion of the Board, has not been discharged by the Petitioner. The Board firstly refers to thedemanding payment. That, according to the Board, is one of the supporting materials. That would indicate that both marks remaining on the register is likely to cause confusion. Then it relies upon a communication by the Registrar of Companies dated 2nd July 1997 addressed to the Petitioner before us. If the Registrar brought to the notice of the Petitioner that there was already another Company functional and in the name of Respondent No.3, then, he advised the Petitioner to choose some other name. The Petitioner has ignored that aspect. Apart therefrom, it asserted before the Board independently that it is using the trade mark since 12th August 1997. That was definitely a much later date in point of time. Before us what has been asserted is the usage is from 1979. That is admittedly not by the Petitioner and the registered Entity that it is now, namely, under a distinct Statute, the Indian Companies Act, 1956. The uninterrupted user is claimed and on the basis of the Sole Proprietors registration. However, we are concerned in this case with the two companies and it is the Companys version, which would have to be gone into and dealt with by the Board.The Board found that the Assessment Orders, Income Tax Returns, advertisement, awards etc. would not indicate that prior to 1997 or the registration, there was any user or from the registration, the use is stated to have commenced. That is, according to the Petitioner, also referable to first AssessmentHowever, that is not in the name of thebut an individual. The explanation now given for the same is that, there was no occasion for theto file Income Tax Returns in its name and as a company prior to its incorporation and registration. We are, therefore, of the clear view that this argument is an afterthought. The Petitioner went before the Board and relied upon its honest concurrent use as a Private Limited Company. When it produces the requisite materials, those are of 1998 and onwards. There is no evidence of the year 1997, much less from 1979. It is in these circumstances that the Board finds that there is no substance in the contentions raised on behalf of the Petitioner. The Board summarizes this conclusion possibly in one or two paragraphs. However, we do not find that the same is perverse or vitiated byof mind, as criticized by Dr. Saraf. Thus, when there is no consistency in the version of the Petitioner and it has changed from time to time, then, this criticism is not warranted.43. In the present case, when the two Entities are Corporate Entities, namely, Companies and registered under the Indian Companies Act, 1956, then, it was for theto have established and proved its honest concurrent use. That is not established and proved, as is demanded in law. In such circumstances, we do not think that the Board committed any error in allowing the application filed by Respondent No.3 and expunging the trade mark from the register. The Board, thus, summarizes its conclusions and rightly in Para No.59. It has also concluded, on the basis of all the materials produced and order of assessment, that Respondent No.3 is prior user and that the Petitioner before us has not satisfied the Board as to the use, as claimed in the application for registration. The Board was, therefore, justified in issuing its ultimate direction of expunging of the mark from the register. The Board found that the figures of turnover would not establish and prove the Petitioners assertion of honest concurrent use since 1979.44. These figures and the success at the interim stage in the Suit before High Court of Delhi are not enough to prove the above plea. Something more was required to prove honesty and concurrent user. That was not brought on record by the Petitioner. Such a conclusion is neither perverse nor vitiated by any error of law apparent on the face of the record. | 0 | 10,286 | 2,380 | ### 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:
a letter dated 2nd July 1997 produced by Respondent No.3 before it containing a suggestion by the Registrar of Companies to the Petitioner before us that some other name be adopted, as "CREATIVE" was not available now and it was already used by some other Company. Yet, the Petitioner applied and wished to use the same name. The Board then referred to the specific argument of the Applicant before it / Respondent No.3 before us, that it has been using the mark and name since 1977. After noting all the contentions and the Judgments relied upon, what is specifically noted is the argument by the Petitioner that provisions of Section 12 of the Trade Marks Act, 1999 are not applicable, as the adoption is honest. After hearing both the parties, the Board reserved its orders, but, later on, certain documents were filed. Those were public documents, including some of the communications from the Registrar of Companies. It, therefore, permitted the Applicant (Respondent No.3) before it to file the documents along with an application styled as Miscellaneous Petition No.233 of 2012. It also gave opportunity to the Petitioner to file its documents and, equally, reply and rejoinder to the Miscellaneous Petition. The Miscellaneous Petition was heard and thereafter the Board, in the interest of justice, granted opportunity to produce the documents. All these documents are, thus, referred to by the Board, from Para 48. It then proceeded to consider the rival contentions.We are in agreement with Mr. Rao that, as far as the locus standi of the Applicant / Respondent No.3 before us, it has not been disputed. What is then material and relevant to note is the evidence that the Petitioner before us produces to support its version of honest concurrent use. The burden to prove that version was entirely upon the Petitioner. The burden to prove the assertion of honest concurrent use, in the opinion of the Board, has not been discharged by the Petitioner. The Board firstly refers to the e-mail demanding payment. That, according to the Board, is one of the supporting materials. That would indicate that both marks remaining on the register is likely to cause confusion. Then it relies upon a communication by the Registrar of Companies dated 2nd July 1997 addressed to the Petitioner before us. If the Registrar brought to the notice of the Petitioner that there was already another Company functional and in the name of Respondent No.3, then, he advised the Petitioner to choose some other name. The Petitioner has ignored that aspect. Apart therefrom, it asserted before the Board independently that it is using the trade mark since 12th August 1997. That was definitely a much later date in point of time. Before us what has been asserted is the usage is from 1979. That is admittedly not by the Petitioner and the registered Entity that it is now, namely, under a distinct Statute, the Indian Companies Act, 1956. The uninterrupted user is claimed and on the basis of the Sole Proprietors registration. However, we are concerned in this case with the two companies and it is the Companys version, which would have to be gone into and dealt with by the Board.The Board found that the Assessment Orders, Income Tax Returns, advertisement, awards etc. would not indicate that prior to 1997 or the registration, there was any user or from the registration, the use is stated to have commenced. That is, according to the Petitioner, also referable to first Assessment Order-1998. However, that is not in the name of the Petitioner-Company but an individual. The explanation now given for the same is that, there was no occasion for the Petitioner-Company to file Income Tax Returns in its name and as a company prior to its incorporation and registration. We are, therefore, of the clear view that this argument is an afterthought. The Petitioner went before the Board and relied upon its honest concurrent use as a Private Limited Company. When it produces the requisite materials, those are of 1998 and onwards. There is no evidence of the year 1997, much less from 1979. It is in these circumstances that the Board finds that there is no substance in the contentions raised on behalf of the Petitioner. The Board summarizes this conclusion possibly in one or two paragraphs. However, we do not find that the same is perverse or vitiated by non-application of mind, as criticized by Dr. Saraf. Thus, when there is no consistency in the version of the Petitioner and it has changed from time to time, then, this criticism is not warranted.43. In the present case, when the two Entities are Corporate Entities, namely, Companies and registered under the Indian Companies Act, 1956, then, it was for the Petitioner-Company to have established and proved its honest concurrent use. That is not established and proved, as is demanded in law. In such circumstances, we do not think that the Board committed any error in allowing the application filed by Respondent No.3 and expunging the trade mark from the register. The Board, thus, summarizes its conclusions and rightly in Para No.59. It has also concluded, on the basis of all the materials produced and order of assessment, that Respondent No.3 is prior user and that the Petitioner before us has not satisfied the Board as to the use, as claimed in the application for registration. The Board was, therefore, justified in issuing its ultimate direction of expunging of the mark from the register. The Board found that the figures of turnover would not establish and prove the Petitioners assertion of honest concurrent use since 1979.44. These figures and the success at the interim stage in the Suit before High Court of Delhi are not enough to prove the above plea. Something more was required to prove honesty and concurrent user. That was not brought on record by the Petitioner. Such a conclusion is neither perverse nor vitiated by any error of law apparent on the face of the record.
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documents.42. In para 27 of the impugned Judgment, the Board refers to a letter dated 2nd July 1997 produced by Respondent No.3 before it containing a suggestion by the Registrar of Companies to the Petitioner before us that some other name be adopted, as "CREATIVE" was not available now and it was already used by some other Company. Yet, the Petitioner applied and wished to use the same name. The Board then referred to the specific argument of the Applicant before it / Respondent No.3 before us, that it has been using the mark and name since 1977. After noting all the contentions and the Judgments relied upon, what is specifically noted is the argument by the Petitioner that provisions of Section 12 of the Trade Marks Act, 1999 are not applicable, as the adoption is honest. After hearing both the parties, the Board reserved its orders, but, later on, certain documents were filed. Those were public documents, including some of the communications from the Registrar of Companies. It, therefore, permitted the Applicant (Respondent No.3) before it to file the documents along with an application styled as Miscellaneous Petition No.233 of 2012. It also gave opportunity to the Petitioner to file its documents and, equally, reply and rejoinder to the Miscellaneous Petition. The Miscellaneous Petition was heard and thereafter the Board, in the interest of justice, granted opportunity to produce the documents. All these documents are, thus, referred to by the Board, from Para 48. It then proceeded to consider the rival contentions.We are in agreement with Mr. Rao that, as far as the locus standi of the Applicant / Respondent No.3 before us, it has not been disputed. What is then material and relevant to note is the evidence that the Petitioner before us produces to support its version of honest concurrent use. The burden to prove that version was entirely upon the Petitioner. The burden to prove the assertion of honest concurrent use, in the opinion of the Board, has not been discharged by the Petitioner. The Board firstly refers to thedemanding payment. That, according to the Board, is one of the supporting materials. That would indicate that both marks remaining on the register is likely to cause confusion. Then it relies upon a communication by the Registrar of Companies dated 2nd July 1997 addressed to the Petitioner before us. If the Registrar brought to the notice of the Petitioner that there was already another Company functional and in the name of Respondent No.3, then, he advised the Petitioner to choose some other name. The Petitioner has ignored that aspect. Apart therefrom, it asserted before the Board independently that it is using the trade mark since 12th August 1997. That was definitely a much later date in point of time. Before us what has been asserted is the usage is from 1979. That is admittedly not by the Petitioner and the registered Entity that it is now, namely, under a distinct Statute, the Indian Companies Act, 1956. The uninterrupted user is claimed and on the basis of the Sole Proprietors registration. However, we are concerned in this case with the two companies and it is the Companys version, which would have to be gone into and dealt with by the Board.The Board found that the Assessment Orders, Income Tax Returns, advertisement, awards etc. would not indicate that prior to 1997 or the registration, there was any user or from the registration, the use is stated to have commenced. That is, according to the Petitioner, also referable to first AssessmentHowever, that is not in the name of thebut an individual. The explanation now given for the same is that, there was no occasion for theto file Income Tax Returns in its name and as a company prior to its incorporation and registration. We are, therefore, of the clear view that this argument is an afterthought. The Petitioner went before the Board and relied upon its honest concurrent use as a Private Limited Company. When it produces the requisite materials, those are of 1998 and onwards. There is no evidence of the year 1997, much less from 1979. It is in these circumstances that the Board finds that there is no substance in the contentions raised on behalf of the Petitioner. The Board summarizes this conclusion possibly in one or two paragraphs. However, we do not find that the same is perverse or vitiated byof mind, as criticized by Dr. Saraf. Thus, when there is no consistency in the version of the Petitioner and it has changed from time to time, then, this criticism is not warranted.43. In the present case, when the two Entities are Corporate Entities, namely, Companies and registered under the Indian Companies Act, 1956, then, it was for theto have established and proved its honest concurrent use. That is not established and proved, as is demanded in law. In such circumstances, we do not think that the Board committed any error in allowing the application filed by Respondent No.3 and expunging the trade mark from the register. The Board, thus, summarizes its conclusions and rightly in Para No.59. It has also concluded, on the basis of all the materials produced and order of assessment, that Respondent No.3 is prior user and that the Petitioner before us has not satisfied the Board as to the use, as claimed in the application for registration. The Board was, therefore, justified in issuing its ultimate direction of expunging of the mark from the register. The Board found that the figures of turnover would not establish and prove the Petitioners assertion of honest concurrent use since 1979.44. These figures and the success at the interim stage in the Suit before High Court of Delhi are not enough to prove the above plea. Something more was required to prove honesty and concurrent user. That was not brought on record by the Petitioner. Such a conclusion is neither perverse nor vitiated by any error of law apparent on the face of the record.
|
A.M. Moosa Vs. Commnr Of Income Tax, Trivandrum | under Section 80-HHC (1) or (3)(a) or (3)(b). In arriving at the figure of positive profit, both the profits and the losses will have to be considered. If the net figure is a positive profit, then the assessee will be entitled to a deduction. If the net figure is a loss then the assessee will not be entitled to a deduction. Sub-section (3)(c) deals with cases where the export is of both self-manufactured goods as well as trading goods. The opening part of sub-section (3)(c) states "profits derived from such export shall". Then follow clauses (i) and (ii). Between clauses (i) and (ii) the word "and" appears. A plain reading of sub-section (3)(c) shows that "profits from such exports" has to be profits from exports of self-manufactured goods plus profits from exports of trading goods. The profit is to be calculated in the manner laid down in Sections (3)(c)(i) and (ii). The opening words "profit derived from such exports" together with the word "and" clearly indicate that the profits have to be calculated by counting both the exports. It is clear from a reading of sub-section (1) of Section 80-HHC(3) that a deduction can be permitted only if there is a positive profit in the exports of both self-manufactured goods as well as trading goods. If there is a loss in either of the two then that loss has to be taken into account for the purposes of computing profits.8. Under Section 80-HHC(1), the deduction is to be given in computing the total income of the assessee. In computing the total income of the assessee both profits as well as losses will have to be taken into consideration. Section 80-AB is relevant. It reads as follows: "80-AB. Where any deduction is required to be made or allowed under any section included in this Chapter under the heading C. Deductions in respect of certain incomes in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provision of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income." (emphasis in original) 9. Section 80-B(5) is also relevant. Section 80-B(5) provides that "gross total income" means total income computed in accordance with the provisions of the Income Tax Act.10. Section 80-AB is also in Chapter VI-A. It starts with the words "where any deduction is required to be made or allowed under any section included in this Chapter". This would include Section 80-HHC. Section 80-AB further provides that "notwithstanding anything contained in that section". Thus Section 80-AB has been given an overriding effect over all other sections in Chapter VI-A. Section 80-HHC does not provide that its provisions are to prevail over Section 80-AB or over any other provision of the Act. Section 80-HHC would thus be governed by Section 80-AB. Decisions of the Bombay High Court in CIT v. Shirke Construction Equipment Ltd. (2000 (246) ITR 429) and the Kerala High Court in CIT v. T.C. Usha (2003 (132) Taxman 297) to the contrary cannot be said to be the correct law. Section 80-AB makes it clear that the computation of income has to be in accordance with the provisions of the Act. If the income has to be computed in accordance with the provisions of the Act, then not only profits but also losses have to be taken into consideration.11. Even under Section 80-HHC (3) (c) (i) the profit is to be adjusted profit of business. The adjusted profit of the business means a profit as reduced by the profit derived from business of exports out of India of trading goods. Thus in calculating the profits under sub-section (3)(c)(i) one necessarily has to reduce profits under sub-section (3)(c)(ii). As seen above, the term "profit" means positive profit. Thus if there is loss then those losses in export of trading goods have to be adjusted. They cannot be ignored. A plain reading of Section 80-HHC makes it clear that in arriving at profits earned from export of both self-manufactured goods and trading goods, the profits and losses in both the trades have to be taken into consideration. If after such adjustments there is a positive profit, the assessee would be entitled to deduction under Section 80-HHC(1). If there is a loss he will not be entitled to any deduction.12. It was submitted that the word "profit" in Section 80-HHC must have the same meaning in the entire section, and that as the word profit in Section 80-HHC(1) means only positive profit, it will have the same meaning in Section 80-HHC(3)(c). It is submitted that thus the word profit in Section 80-HHC(3)(c) would not include losses and if there are any losses, they are to be ignored. The plea is clearly without substance. Firstly, it is not necessary that the word "profit" must have the same meaning. The meaning of the word "profit" will depend on the context in which it is used. In Section 80-HHC (1) it is admittedly used to indicate positive "profit" because the deduction will only be of a positive profit. Section 80-HHC(3) is the sub-section which provides how profits are to be worked out in computing total income. For purposes of such computation both profits and losses have to be taken into account. Thus the word "profit" in Section 80-HHC(3) will mean profits after taking into account losses, if any. More importantly, in our view, the term "profit" in Section 80-HHC both in sub-section (1) and in sub-section (3) means a positive profit worked out after taking into consideration the losses, if any. Thus the word "profit" has the same meaning in Sections 80-HHC(1) and (3). | 0[ds]7. The stand needs careful consideration. Undoubtedly, Section 80-HHC has been incorporated with a view to providing incentive to export houses. Even though a liberal interpretation has to be given to such a provision, the interpretation has to be as per the wordings of this section. If the wordings of the section are clear, then benefits, which are not available under the section, cannot be conferred by ignoring or misinterpreting words in the section. In this case we are concerned with the wordings of sub-section (3)(c) of Section 80-HHC. As noted earlier, sub-section (3)(a) deals with the case where the export is only of self-manufactured goods. Sub-section (3)(b) deals with the case where the export is only of trading goods. Thus, when the legislature wanted to take exports from self-manufactured goods or trading goods separately, it has already so provided in sub-sections (3)(a) and (3)(b). It would not be denied that the word "profit" in Section 80-HHC (1) and Sections 80-HHC(3)(a) or (3)(b)means a positive profit. In other words, if there is a loss then no deduction would be available under Section 80-HHC (1) or (3)(a) or (3)(b). In arriving at the figure of positive profit, both the profits and the losses will have to be considered. If the net figure is a positive profit, then the assessee will be entitled to a deduction. If the net figure is a loss then the assessee will not be entitled to a deduction. Sub-section (3)(c) deals with cases where the export is of both self-manufactured goods as well as trading goods. The opening part of sub-section (3)(c) states "profits derived from such export shall". Then follow clauses (i) and (ii). Between clauses (i) and (ii) the word "and" appears. A plain reading of sub-section (3)(c) shows that "profits from such exports" has to be profits from exports of self-manufactured goods plus profits from exports of trading goods. The profit is to be calculated in the manner laid down in Sections (3)(c)(i) and (ii). The opening words "profit derived from such exports" together with the word "and" clearly indicate that the profits have to be calculated by counting both the exports. It is clear from a reading of sub-section (1) of Section 80-HHC(3) that a deduction can be permitted only if there is a positive profit in the exports of both self-manufactured goods as well as trading goods. If there is a loss in either of the two then that loss has to be taken into account for the purposes of computing profits.8. Under Section 80-HHC(1), the deduction is to be given in computing the total income of the assessee. In computing the total income of the assessee both profits as well as losses will have to be taken into consideration. Section 80-AB is relevant. It reads asWhere any deduction is required to be made or allowed under any section included in this Chapter under the heading C. Deductions in respect of certain incomes in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provision of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income." (emphasis inSection 80-B(5) is also relevant. Section 80-B(5) provides that "gross total income" means total income computed in accordance with the provisions of the Income Tax Act.10. Section 80-AB is also in Chapter VI-A. It starts with the words "where any deduction is required to be made or allowed under any section included in this Chapter". This would include Section 80-HHC. Section 80-AB further provides that "notwithstanding anything contained in that section". Thus Section 80-AB has been given an overriding effect over all other sections in Chapter VI-A. Section 80-HHC does not provide that its provisions are to prevail over Section 80-AB or over any other provision of the Act. Section 80-HHC would thus be governed by Section 80-AB. Decisions of the Bombay High Court in CIT v. Shirke Construction Equipment Ltd. (2000 (246) ITR 429) and the Kerala High Court in CIT v. T.C. Usha (2003 (132) Taxman 297) to the contrary cannot be said to be the correct law. Section 80-AB makes it clear that the computation of income has to be in accordance with the provisions of the Act. If the income has to be computed in accordance with the provisions of the Act, then not only profits but also losses have to be taken into consideration.11. Even under Section 80-HHC (3) (c) (i) the profit is to be adjusted profit of business. The adjusted profit of the business means a profit as reduced by the profit derived from business of exports out of India of trading goods. Thus in calculating the profits under sub-section (3)(c)(i) one necessarily has to reduce profits under sub-section (3)(c)(ii). As seen above, the term "profit" means positive profit. Thus if there is loss then those losses in export of trading goods have to be adjusted. They cannot be ignored. A plain reading of Section 80-HHC makes it clear that in arriving at profits earned from export of both self-manufactured goods and trading goods, the profits and losses in both the trades have to be taken into consideration. If after such adjustments there is a positive profit, the assessee would be entitled to deduction under Section 80-HHC(1). If there is a loss he will not be entitled to any deduction.12. It was submitted that the word "profit" in Section 80-HHC must have the same meaning in the entire section, and that as the word profit in Section 80-HHC(1) means only positive profit, it will have the same meaning in Section 80-HHC(3)(c). It is submitted that thus the word profit in Section 80-HHC(3)(c) would not include losses and if there are any losses, they are to be ignored. The plea is clearly without substance. Firstly, it is not necessary that the word "profit" must have the same meaning. The meaning of the word "profit" will depend on the context in which it is used. In Section 80-HHC (1) it is admittedly used to indicate positive "profit" because the deduction will only be of a positive profit. Section 80-HHC(3) is the sub-section which provides how profits are to be worked out in computing total income. For purposes of such computation both profits and losses have to be taken into account. Thus the word "profit" in Section 80-HHC(3) will mean profits after taking into account losses, if any. More importantly, in our view, the term "profit" in Section 80-HHC both in sub-section (1) and in sub-section (3) means a positive profit worked out after taking into consideration the losses, if any. Thus the word "profit" has the same meaning in Sections 80-HHC(1) and (3). | 0 | 3,672 | 1,470 | ### 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:
under Section 80-HHC (1) or (3)(a) or (3)(b). In arriving at the figure of positive profit, both the profits and the losses will have to be considered. If the net figure is a positive profit, then the assessee will be entitled to a deduction. If the net figure is a loss then the assessee will not be entitled to a deduction. Sub-section (3)(c) deals with cases where the export is of both self-manufactured goods as well as trading goods. The opening part of sub-section (3)(c) states "profits derived from such export shall". Then follow clauses (i) and (ii). Between clauses (i) and (ii) the word "and" appears. A plain reading of sub-section (3)(c) shows that "profits from such exports" has to be profits from exports of self-manufactured goods plus profits from exports of trading goods. The profit is to be calculated in the manner laid down in Sections (3)(c)(i) and (ii). The opening words "profit derived from such exports" together with the word "and" clearly indicate that the profits have to be calculated by counting both the exports. It is clear from a reading of sub-section (1) of Section 80-HHC(3) that a deduction can be permitted only if there is a positive profit in the exports of both self-manufactured goods as well as trading goods. If there is a loss in either of the two then that loss has to be taken into account for the purposes of computing profits.8. Under Section 80-HHC(1), the deduction is to be given in computing the total income of the assessee. In computing the total income of the assessee both profits as well as losses will have to be taken into consideration. Section 80-AB is relevant. It reads as follows: "80-AB. Where any deduction is required to be made or allowed under any section included in this Chapter under the heading C. Deductions in respect of certain incomes in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provision of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income." (emphasis in original) 9. Section 80-B(5) is also relevant. Section 80-B(5) provides that "gross total income" means total income computed in accordance with the provisions of the Income Tax Act.10. Section 80-AB is also in Chapter VI-A. It starts with the words "where any deduction is required to be made or allowed under any section included in this Chapter". This would include Section 80-HHC. Section 80-AB further provides that "notwithstanding anything contained in that section". Thus Section 80-AB has been given an overriding effect over all other sections in Chapter VI-A. Section 80-HHC does not provide that its provisions are to prevail over Section 80-AB or over any other provision of the Act. Section 80-HHC would thus be governed by Section 80-AB. Decisions of the Bombay High Court in CIT v. Shirke Construction Equipment Ltd. (2000 (246) ITR 429) and the Kerala High Court in CIT v. T.C. Usha (2003 (132) Taxman 297) to the contrary cannot be said to be the correct law. Section 80-AB makes it clear that the computation of income has to be in accordance with the provisions of the Act. If the income has to be computed in accordance with the provisions of the Act, then not only profits but also losses have to be taken into consideration.11. Even under Section 80-HHC (3) (c) (i) the profit is to be adjusted profit of business. The adjusted profit of the business means a profit as reduced by the profit derived from business of exports out of India of trading goods. Thus in calculating the profits under sub-section (3)(c)(i) one necessarily has to reduce profits under sub-section (3)(c)(ii). As seen above, the term "profit" means positive profit. Thus if there is loss then those losses in export of trading goods have to be adjusted. They cannot be ignored. A plain reading of Section 80-HHC makes it clear that in arriving at profits earned from export of both self-manufactured goods and trading goods, the profits and losses in both the trades have to be taken into consideration. If after such adjustments there is a positive profit, the assessee would be entitled to deduction under Section 80-HHC(1). If there is a loss he will not be entitled to any deduction.12. It was submitted that the word "profit" in Section 80-HHC must have the same meaning in the entire section, and that as the word profit in Section 80-HHC(1) means only positive profit, it will have the same meaning in Section 80-HHC(3)(c). It is submitted that thus the word profit in Section 80-HHC(3)(c) would not include losses and if there are any losses, they are to be ignored. The plea is clearly without substance. Firstly, it is not necessary that the word "profit" must have the same meaning. The meaning of the word "profit" will depend on the context in which it is used. In Section 80-HHC (1) it is admittedly used to indicate positive "profit" because the deduction will only be of a positive profit. Section 80-HHC(3) is the sub-section which provides how profits are to be worked out in computing total income. For purposes of such computation both profits and losses have to be taken into account. Thus the word "profit" in Section 80-HHC(3) will mean profits after taking into account losses, if any. More importantly, in our view, the term "profit" in Section 80-HHC both in sub-section (1) and in sub-section (3) means a positive profit worked out after taking into consideration the losses, if any. Thus the word "profit" has the same meaning in Sections 80-HHC(1) and (3).
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then no deduction would be available under Section 80-HHC (1) or (3)(a) or (3)(b). In arriving at the figure of positive profit, both the profits and the losses will have to be considered. If the net figure is a positive profit, then the assessee will be entitled to a deduction. If the net figure is a loss then the assessee will not be entitled to a deduction. Sub-section (3)(c) deals with cases where the export is of both self-manufactured goods as well as trading goods. The opening part of sub-section (3)(c) states "profits derived from such export shall". Then follow clauses (i) and (ii). Between clauses (i) and (ii) the word "and" appears. A plain reading of sub-section (3)(c) shows that "profits from such exports" has to be profits from exports of self-manufactured goods plus profits from exports of trading goods. The profit is to be calculated in the manner laid down in Sections (3)(c)(i) and (ii). The opening words "profit derived from such exports" together with the word "and" clearly indicate that the profits have to be calculated by counting both the exports. It is clear from a reading of sub-section (1) of Section 80-HHC(3) that a deduction can be permitted only if there is a positive profit in the exports of both self-manufactured goods as well as trading goods. If there is a loss in either of the two then that loss has to be taken into account for the purposes of computing profits.8. Under Section 80-HHC(1), the deduction is to be given in computing the total income of the assessee. In computing the total income of the assessee both profits as well as losses will have to be taken into consideration. Section 80-AB is relevant. It reads asWhere any deduction is required to be made or allowed under any section included in this Chapter under the heading C. Deductions in respect of certain incomes in respect of any income of the nature specified in that section which is included in the gross total income of the assessee, then, notwithstanding anything contained in that section, for the purpose of computing the deduction under that section, the amount of income of that nature as computed in accordance with the provision of this Act (before making any deduction under this Chapter) shall alone be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his gross total income." (emphasis inSection 80-B(5) is also relevant. Section 80-B(5) provides that "gross total income" means total income computed in accordance with the provisions of the Income Tax Act.10. Section 80-AB is also in Chapter VI-A. It starts with the words "where any deduction is required to be made or allowed under any section included in this Chapter". This would include Section 80-HHC. Section 80-AB further provides that "notwithstanding anything contained in that section". Thus Section 80-AB has been given an overriding effect over all other sections in Chapter VI-A. Section 80-HHC does not provide that its provisions are to prevail over Section 80-AB or over any other provision of the Act. Section 80-HHC would thus be governed by Section 80-AB. Decisions of the Bombay High Court in CIT v. Shirke Construction Equipment Ltd. (2000 (246) ITR 429) and the Kerala High Court in CIT v. T.C. Usha (2003 (132) Taxman 297) to the contrary cannot be said to be the correct law. Section 80-AB makes it clear that the computation of income has to be in accordance with the provisions of the Act. If the income has to be computed in accordance with the provisions of the Act, then not only profits but also losses have to be taken into consideration.11. Even under Section 80-HHC (3) (c) (i) the profit is to be adjusted profit of business. The adjusted profit of the business means a profit as reduced by the profit derived from business of exports out of India of trading goods. Thus in calculating the profits under sub-section (3)(c)(i) one necessarily has to reduce profits under sub-section (3)(c)(ii). As seen above, the term "profit" means positive profit. Thus if there is loss then those losses in export of trading goods have to be adjusted. They cannot be ignored. A plain reading of Section 80-HHC makes it clear that in arriving at profits earned from export of both self-manufactured goods and trading goods, the profits and losses in both the trades have to be taken into consideration. If after such adjustments there is a positive profit, the assessee would be entitled to deduction under Section 80-HHC(1). If there is a loss he will not be entitled to any deduction.12. It was submitted that the word "profit" in Section 80-HHC must have the same meaning in the entire section, and that as the word profit in Section 80-HHC(1) means only positive profit, it will have the same meaning in Section 80-HHC(3)(c). It is submitted that thus the word profit in Section 80-HHC(3)(c) would not include losses and if there are any losses, they are to be ignored. The plea is clearly without substance. Firstly, it is not necessary that the word "profit" must have the same meaning. The meaning of the word "profit" will depend on the context in which it is used. In Section 80-HHC (1) it is admittedly used to indicate positive "profit" because the deduction will only be of a positive profit. Section 80-HHC(3) is the sub-section which provides how profits are to be worked out in computing total income. For purposes of such computation both profits and losses have to be taken into account. Thus the word "profit" in Section 80-HHC(3) will mean profits after taking into account losses, if any. More importantly, in our view, the term "profit" in Section 80-HHC both in sub-section (1) and in sub-section (3) means a positive profit worked out after taking into consideration the losses, if any. Thus the word "profit" has the same meaning in Sections 80-HHC(1) and (3).
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Sant Singh Nalwa and Another Vs. Financial Commissioner, Haryana and Ors., Etc | Single Judge was not justified in striking down the Rules as being ultra vires.Moreover, it is obvious that the Rules were made under section 27 of the Act which authorises the Government to make rules for carrying out the purposes of the Act. If the dominant object of the Act was to take over the surplus area according to the formula contained in various provisions of the Act particularly sub sections (3) and (5) of s.2, there is no material on the record to show that the Rules do not fulfil or carry out the object contained in the Act. Moreover, in Jagir Singh and Ors. v. The State of Punjab and Ors. a Division Bench of the Punjab High Court while considering a similar contention rejected the argument that the Annexure framed under the Rules was bad as it did not consider the nature and quality of the Soil. In this connection, the Division Bench observed thus:-"It is thus clear that the formation of an assessment circle necessarily takes into consideration the various factors mentioned by the learned author and those include the nature of soil and its quality apart from various other factors affecting the yield. The circumstance therefore, that in the Annexure the State of Punjab has been split up into assessment circles, as determined at the time of the Settlement, is highly significant, and leaves no doubt that Settlement, is highly significant and leaves no doubt that the nature and the quality of the soil inherent in the formation of an assessment circle have been taken into consideration for valuing the land for purposes of its conversion into standard acres. At the same time, the existing sources of irrigation have all been taken into consideration. It is, in the circumstances, impossible to agree that the Annexure in any manner violates the direction contained in the Punjab Security of Land Tenures Act.We are, in the circumstances, unable to agree that the disputed rule and Annexure A attached to the Rules are ultra vires the Punjab Security of Land Tenures Act."We find ourselves in complete agreement with the observations made by the High Court and endorse the same. With due respect, the view taken by Sarkaria J., as he then was (the single Judge in the instant case) is not at all in consonance with the scheme and spirit of the Rules framed under the Act and is based on a wrong interpretation of the nature extent and ambit of the classification made in annexure A.12. We therefore fully agree with the Division Bench judgment of the High Court that the classification is in accordance with the provisions of sub section (5) of s. 2 of the Act and is therefore, constitutionally valid. The first contention put forward by the counsel for the appellants is therefore overruled.13. Coming now to the second contention that even if the classification is correct, the revenue authorities were wrong in treating the surplus land in dispute as unirrigated area. We find no substance in this argument. The relevant Annexure which gives the surplus land in District Karnal is to be found at page 308 of the compilation of Punjab &Haryana Local Acts (vol VII) where while lands classified as Chahi, Abi, Nehri, Unirrigated and Nehri/Non-perennial are mentioned, there is no mention of sailab or adna sailab lands. Whereas at page 306 in the same volume there is no sailab land except in tehsil Sonepat. Thus, it appears that so far as Karnal District is concerned there was no sailab land at the time when the Rules were framed and the classification was made. Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas as shown at p. 306 of the aforesaid compilation, in which case this would be more detrimental to the interests of the appellants. The Collector and the Commissioner have therefore rightly treated the land as unirrigated which is almost the lowest category and whose valuation is given as 9 annas per acre. We, therefore, find no error in the classification made by the revenue authorities.We are unable to agree with the counsel for the appellants that as the land in question did not fall in any of the heads of classification made in District Karnal they will carry no value at all because this is directly opposed to the various schemes of the classification made under the Rules. A subsidiary contention in this very argument was that the land should have been valued in accordance with Rule 2, provisos (a) to (c), which may be extracted thus:"2. Conversion of ordinary acres into standard acres. The Equivalent, in standard acres, of one ordinary acre of any class of land in any assessment circle, shall be determined by dividing by 16, the valuation shown in Annexure A to these rules for such class of land in the said assessment circle;Provided that the valuation shall be-(a) in the case of Banjar Qadim land, one-half of the value of the class previously described in the records and in the absence of any specific class being stated, one-half of the value of the lowest barani land.(b) in the case of Banjar Ja did land, seven-eighth of the value of the relevant class of land as previously entered in the records, or in the absence of specified class in the records of the lowest barani land; and(c) in the case of cultivated thur land subject to waterlogging, one-eighth of the value of the class of land shown in the records or in the absence of any class, of the lowest barani land."14. The three categories given in clauses (a), (b) and (c) as extracted above do not at all cover the land of the appellants which is sailab or adna sailab and therefore they cannot be given the benefit of any of these three sub- clauses of the proviso. For these reason s, the second contention is overruled.15. | 0[ds]Coming now to the first point raised by the appellants regarding the constitutionality of the Rules framed under the Act, after hearing the counsel for the parties we find no merit in this contention. Sub-section (5) of section 2 of the Act merely requires that the Rule should classify the land according to the quantity of the yield and quality of the soil. The Rules have classified the land by preparing a schedule consisting of various Annexures which divide the land s according to the quantity of yield and quality of the soil into various categories. A perusal of the Annexures to the Rules clearly shows that the valuation statement and the class of land has been described not only as being applicable to one place or the other but in view of the entire topography of every district or tehsil, it is manifest that in a peculiar State like Punjab and Haryana diverse factors, namely, the situation or position of the land, its nearness to the river, the irrigation facilities, the ravages of flood, the fertility of the land and its produce and various other similar circumstances have to be taken into consideration in determining the nature and character of thenow to the first point raised by the appellants regarding the constitutionality of the Rules framed under the Act, after hearing the counsel for the parties we find no merit in this contention. Sub-section (5) of section 2 of the Act merely requires that the Rule should classify the land according to the quantity of the yield and quality of the soil. The Rules have classified the land by preparing a schedule consisting of various Annexures which divide the land s according to the quantity of yield and quality of the soil into various categories. A perusal of the Annexures to the Rules clearly shows that the valuation statement and the class of land has been described not only as being applicable to one place or the other but in view of the entire topography of every district or tehsil, it is manifest that in a peculiar State like Punjab and Haryana diverse factors, namely, the situation or position of the land, its nearness to the river, the irrigation facilities, the ravages of flood, the fertility of the land and its produce and various other similar circumstances have to be taken into consideration in determining the nature and character of thetherefore fully agree with the Division Bench judgment of the High Court that the classification is in accordance with the provisions of sub section (5) of s. 2 of the Act and is therefore, constitutionally valid. The first contention put forward by the counsel for the appellants is thereforenow to the second contention that even if the classification is correct, the revenue authorities were wrong in treating the surplus land in dispute as unirrigated area. We find no substance in this argument. The relevant Annexure which gives the surplus land in District Karnal is to be found at page 308 of the compilation of Punjab &Haryana Local Acts (vol VII) where while lands classified as Chahi, Abi, Nehri, Unirrigated and Nehri/Non-perennial are mentioned, there is no mention of sailab or adna sailab lands. Whereas at page 306 in the same volume there is no sailab land except in tehsil Sonepat. Thus, it appears that so far as Karnal District is concerned there was no sailab land at the time when the Rules were framed and the classification was made. Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas as shown at p. 306 of the aforesaid compilation, in which case this would be more detrimental to the interests of the appellants. The Collector and the Commissioner have therefore rightly treated the land as unirrigated which is almost the lowest category and whose valuation is given as 9 annas per acre. We, therefore, find no error in the classification made by the revenue authorities.We are unable to agree with the counsel for the appellants that as the land in question did not fall in any of the heads of classification made in District Karnal they will carry no value at all because this is directly opposed to the various schemes of the classification made under the Rules. A subsidiary contention in this very argument was that the land should have been valued in accordance with Rule 2, provisos (a) to (c), which may be extractedConversion of ordinary acres into standard acres. The Equivalent, in standard acres, of one ordinary acre of any class of land in any assessment circle, shall be determined by dividing by 16, the valuation shown in Annexure A to these rules for such class of land in the said assessment circle;Provided that the valuation shall be-(a) in the case of Banjar Qadim land, one-half of the value of the class previously described in the records and in the absence of any specific class being stated, one-half of the value of the lowest barani land.(b) in the case of Banjar Ja did land, seven-eighth of the value of the relevant class of land as previously entered in the records, or in the absence of specified class in the records of the lowest barani land; and(c) in the case of cultivated thur land subject to waterlogging, one-eighth of the value of the class of land shown in the records or in the absence of any class, of the lowest baranithree categories given in clauses (a), (b) and (c) as extracted above do not at all cover the land of the appellants which is sailab or adna sailab and therefore they cannot be given the benefit of any of these three sub- clauses of the proviso. For these reason s, the second contention is overruled. | 0 | 3,169 | 1,069 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Single Judge was not justified in striking down the Rules as being ultra vires.Moreover, it is obvious that the Rules were made under section 27 of the Act which authorises the Government to make rules for carrying out the purposes of the Act. If the dominant object of the Act was to take over the surplus area according to the formula contained in various provisions of the Act particularly sub sections (3) and (5) of s.2, there is no material on the record to show that the Rules do not fulfil or carry out the object contained in the Act. Moreover, in Jagir Singh and Ors. v. The State of Punjab and Ors. a Division Bench of the Punjab High Court while considering a similar contention rejected the argument that the Annexure framed under the Rules was bad as it did not consider the nature and quality of the Soil. In this connection, the Division Bench observed thus:-"It is thus clear that the formation of an assessment circle necessarily takes into consideration the various factors mentioned by the learned author and those include the nature of soil and its quality apart from various other factors affecting the yield. The circumstance therefore, that in the Annexure the State of Punjab has been split up into assessment circles, as determined at the time of the Settlement, is highly significant, and leaves no doubt that Settlement, is highly significant and leaves no doubt that the nature and the quality of the soil inherent in the formation of an assessment circle have been taken into consideration for valuing the land for purposes of its conversion into standard acres. At the same time, the existing sources of irrigation have all been taken into consideration. It is, in the circumstances, impossible to agree that the Annexure in any manner violates the direction contained in the Punjab Security of Land Tenures Act.We are, in the circumstances, unable to agree that the disputed rule and Annexure A attached to the Rules are ultra vires the Punjab Security of Land Tenures Act."We find ourselves in complete agreement with the observations made by the High Court and endorse the same. With due respect, the view taken by Sarkaria J., as he then was (the single Judge in the instant case) is not at all in consonance with the scheme and spirit of the Rules framed under the Act and is based on a wrong interpretation of the nature extent and ambit of the classification made in annexure A.12. We therefore fully agree with the Division Bench judgment of the High Court that the classification is in accordance with the provisions of sub section (5) of s. 2 of the Act and is therefore, constitutionally valid. The first contention put forward by the counsel for the appellants is therefore overruled.13. Coming now to the second contention that even if the classification is correct, the revenue authorities were wrong in treating the surplus land in dispute as unirrigated area. We find no substance in this argument. The relevant Annexure which gives the surplus land in District Karnal is to be found at page 308 of the compilation of Punjab &Haryana Local Acts (vol VII) where while lands classified as Chahi, Abi, Nehri, Unirrigated and Nehri/Non-perennial are mentioned, there is no mention of sailab or adna sailab lands. Whereas at page 306 in the same volume there is no sailab land except in tehsil Sonepat. Thus, it appears that so far as Karnal District is concerned there was no sailab land at the time when the Rules were framed and the classification was made. Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas as shown at p. 306 of the aforesaid compilation, in which case this would be more detrimental to the interests of the appellants. The Collector and the Commissioner have therefore rightly treated the land as unirrigated which is almost the lowest category and whose valuation is given as 9 annas per acre. We, therefore, find no error in the classification made by the revenue authorities.We are unable to agree with the counsel for the appellants that as the land in question did not fall in any of the heads of classification made in District Karnal they will carry no value at all because this is directly opposed to the various schemes of the classification made under the Rules. A subsidiary contention in this very argument was that the land should have been valued in accordance with Rule 2, provisos (a) to (c), which may be extracted thus:"2. Conversion of ordinary acres into standard acres. The Equivalent, in standard acres, of one ordinary acre of any class of land in any assessment circle, shall be determined by dividing by 16, the valuation shown in Annexure A to these rules for such class of land in the said assessment circle;Provided that the valuation shall be-(a) in the case of Banjar Qadim land, one-half of the value of the class previously described in the records and in the absence of any specific class being stated, one-half of the value of the lowest barani land.(b) in the case of Banjar Ja did land, seven-eighth of the value of the relevant class of land as previously entered in the records, or in the absence of specified class in the records of the lowest barani land; and(c) in the case of cultivated thur land subject to waterlogging, one-eighth of the value of the class of land shown in the records or in the absence of any class, of the lowest barani land."14. The three categories given in clauses (a), (b) and (c) as extracted above do not at all cover the land of the appellants which is sailab or adna sailab and therefore they cannot be given the benefit of any of these three sub- clauses of the proviso. For these reason s, the second contention is overruled.15.
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Coming now to the first point raised by the appellants regarding the constitutionality of the Rules framed under the Act, after hearing the counsel for the parties we find no merit in this contention. Sub-section (5) of section 2 of the Act merely requires that the Rule should classify the land according to the quantity of the yield and quality of the soil. The Rules have classified the land by preparing a schedule consisting of various Annexures which divide the land s according to the quantity of yield and quality of the soil into various categories. A perusal of the Annexures to the Rules clearly shows that the valuation statement and the class of land has been described not only as being applicable to one place or the other but in view of the entire topography of every district or tehsil, it is manifest that in a peculiar State like Punjab and Haryana diverse factors, namely, the situation or position of the land, its nearness to the river, the irrigation facilities, the ravages of flood, the fertility of the land and its produce and various other similar circumstances have to be taken into consideration in determining the nature and character of thenow to the first point raised by the appellants regarding the constitutionality of the Rules framed under the Act, after hearing the counsel for the parties we find no merit in this contention. Sub-section (5) of section 2 of the Act merely requires that the Rule should classify the land according to the quantity of the yield and quality of the soil. The Rules have classified the land by preparing a schedule consisting of various Annexures which divide the land s according to the quantity of yield and quality of the soil into various categories. A perusal of the Annexures to the Rules clearly shows that the valuation statement and the class of land has been described not only as being applicable to one place or the other but in view of the entire topography of every district or tehsil, it is manifest that in a peculiar State like Punjab and Haryana diverse factors, namely, the situation or position of the land, its nearness to the river, the irrigation facilities, the ravages of flood, the fertility of the land and its produce and various other similar circumstances have to be taken into consideration in determining the nature and character of thetherefore fully agree with the Division Bench judgment of the High Court that the classification is in accordance with the provisions of sub section (5) of s. 2 of the Act and is therefore, constitutionally valid. The first contention put forward by the counsel for the appellants is thereforenow to the second contention that even if the classification is correct, the revenue authorities were wrong in treating the surplus land in dispute as unirrigated area. We find no substance in this argument. The relevant Annexure which gives the surplus land in District Karnal is to be found at page 308 of the compilation of Punjab &Haryana Local Acts (vol VII) where while lands classified as Chahi, Abi, Nehri, Unirrigated and Nehri/Non-perennial are mentioned, there is no mention of sailab or adna sailab lands. Whereas at page 306 in the same volume there is no sailab land except in tehsil Sonepat. Thus, it appears that so far as Karnal District is concerned there was no sailab land at the time when the Rules were framed and the classification was made. Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas as shown at p. 306 of the aforesaid compilation, in which case this would be more detrimental to the interests of the appellants. The Collector and the Commissioner have therefore rightly treated the land as unirrigated which is almost the lowest category and whose valuation is given as 9 annas per acre. We, therefore, find no error in the classification made by the revenue authorities.We are unable to agree with the counsel for the appellants that as the land in question did not fall in any of the heads of classification made in District Karnal they will carry no value at all because this is directly opposed to the various schemes of the classification made under the Rules. A subsidiary contention in this very argument was that the land should have been valued in accordance with Rule 2, provisos (a) to (c), which may be extractedConversion of ordinary acres into standard acres. The Equivalent, in standard acres, of one ordinary acre of any class of land in any assessment circle, shall be determined by dividing by 16, the valuation shown in Annexure A to these rules for such class of land in the said assessment circle;Provided that the valuation shall be-(a) in the case of Banjar Qadim land, one-half of the value of the class previously described in the records and in the absence of any specific class being stated, one-half of the value of the lowest barani land.(b) in the case of Banjar Ja did land, seven-eighth of the value of the relevant class of land as previously entered in the records, or in the absence of specified class in the records of the lowest barani land; and(c) in the case of cultivated thur land subject to waterlogging, one-eighth of the value of the class of land shown in the records or in the absence of any class, of the lowest baranithree categories given in clauses (a), (b) and (c) as extracted above do not at all cover the land of the appellants which is sailab or adna sailab and therefore they cannot be given the benefit of any of these three sub- clauses of the proviso. For these reason s, the second contention is overruled.
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Akhil Bharat Gosewa Sangh and Ors. Vs. State of A.P. and Ors. | export and development of scheduled products. It is the consistent policy of the Government of India to encourage export of meat and meat products, as would be evident from the following: Export of buffalo meat is on the OGL list. (i) Government of India in its Directive has stressed export of meat and meat products as thrust area. (ii) Current Foreign Trade Policy encourage export of meat. It provides for export of meat of buffalo provided it is accompanied by a certificate from the designated veterinary authority to the effect that meat or offal are from buffalo not used for breeding and mulching purposes. 65. It appears that the certificates that are to be or already issued was in conformity with the decision of the Constitution Benchs judgment in Mohd. Hanif Qureshis case reported in . It is the case of the Government as well as the abattoir that only those buffaloes which are unfit for mileching, breeding and draught were permitted to be slaughtered and are being slaughtered. We have already discussed the decline of cattle population because of the operation of Al-Kabeer in this judgment hereinbefore. In Mohd. Hanif Qureshis case reported in the issue was not whether the population of live stock was increasing or not but whether the population of healthy live stock was increasing, Although it was sought to be argued by the appellant that due to slaughter of buffaloes by Al-Kabeer, the population of healthy buffaloes was declining even then in view of our discussion made herein earlier, it must be confirmed that there, is no depletion of cattle/buffalo wealth due to operation of Al-Kabeer. Apart from that, it appears from the record that Al-Kabeer slaughterhouse was built in accordance with European Economic Community Standards and is one of the most modern, scientific, integrated slaughter houses in India with an installed capacity of 15000 MT. If in any way Al-Kabeer is directed to close down their factory the said action on the part, of the Central Government would be to discourage private entrepreneurs to invest in the meat industry which will affect the reputation of India in the export market of meat As we have already noted, the interim direction given by this Court on 12th March 1997 by which the production of Al-Kabeer was reduced to 50 %, the total export of meat from India, which is about 1,70,000 MT., did not reduce. For the reasons aforesaid, we are unable to direct at this stage to strike down the policy regarding meat export from India to foreign countries. We are of the view that the policy of the Central Government cannot be easily struck down only because there was slight decline of cattle growth nor it can be struck down before looking into the entire aspect of the matter. It is also well settled that policy decision of the Government cannot be interfered with or struck down merely on certain factual disputes in the matter. It is not open to the Court to strike down such decision until and unless a serious and grave error is found on the part of the Central Government or the State Government. Such being the position, we are unable to strike down this meat export policy of the Central Government, as in our view, it does not violate the constitutional provisions. That apart, the question regarding constitutionality as mentioned above was not argued before the High Court seriously. Accordingly, this submission of Akhil Bharat Goseva Sangh is hereby rejected. 66. Apart from that, from the discussion made hereinabove, we find that it is also the consistent, policy of the Government of India to-encourage export of meat, and meat products. The current foreign trade policy also encourages export of meat provided that a designated veterinary authority certifies that it is not obtained from buffalo used for breeding and mulching purposes, it is true that in the Constitution Bench decision of this Court in the case of State of Gujarat v. Mirzapur reported in AIR2006SC212 it has been held that the protection envisaged under Article 48 extended even to cattle that had ceased to be milch or draught, provided they fall within the category of milch and draught cattle. In State of Gujarat v. Mirzapur (supra) it has also been held that cattle forms the backbone of Indian agriculture and the remain useful throughout their lives. While dealing with Article 48 and 48A of the Constitution read with the fundamental rights, the Constitution Bench further held that both directive principles and fundamental duties must be kept in mind while assessing the reasonableness of legal restrictions placed upon fundamental rights. However, striking down a law or policy on the ground that it violates a directive principle or fundamental duty was not an issue before the Constitution Bench of this Court in the case of State of Gujarat v. Mirzapur (supra). It is true that in the aforesaid Constitution Bench decision it has been held that total prohibition of cow and cow progeny slaughter may be justified. However, it. has not been, held in that decision, that laws and policies which permit such slaughter are unconstitutional. Therefore, the position of law remains that the directive principles and fundamental duties cannot in themselves serve to invalidate a legislation or a policy. Moreover, the export policy itself permits only export of meat from buffaloes that are-certified as not useful formulching. breeding or draught purposes. Therefore, if properly implemented, it cannot be said that the policy will necessarily have adverse consequences, especially in view of the foreign exchange obtained through it. Accordingly, we are unable to accede to the argument of the learned Counsel for the appellant that the meat export policy, as made by the Central Government must to be struck down. 67. For the reasons aforesaid, we are of the view that meat export policy need not be struck down subject to constant review by the Central Government in the light of its potentially harmful effects on the economy of the country. | 0[ds]11. We have carefully examined the Report of the Krishnan Committee, and its recommendation for allowing the establishment, of the slaughter house. From a plain reading of the report and its recommendation, it cannot be doubted that the Krishnan Committee was in favour of the establishment of the slaughter house subject to the condition that it should raise its own cattle required by it - initially to the extent of half and ultimately to the full extent. The committee also opined that if the company was not willing to or not in a position to raise its own cattle then the company may not to be allowed to run or its capacity may be utilised to meet the existing requirement by diverting the cattle from the existing slaughter houses. From this recommendation, it may be said that the existing slaughter houses, big and small, government and private, were to be closed down and the slaughter house of the company would be utilised to meet, the present domestic requirements. It also appears from the record that before forwarding this report to the Central Government, the Chief Secretary to the Government of Andhra Pradesh appended a Reference note which may not be required to be noted for our present purpose.23. From the above noted observations of this Court in the appeals, we find that the propriety of the Krishnan Committee report could be considered after the receipt of the material and report from the Central Government. Therefore, it cannot be said that by the aforesaid order of this Court at the intermediary stage this Court in fact rejected the report of the Krishuan Committee. On the other hand, it was made clear that such a report can be considered after submitting of the report of the Central Government in compliance with the directions made by this Court, as noted herein earlier. In compliance with the directions made by this Court in its order, a report was submitted and a further order in continuance of the order dated 25th October 1994, was also passed by this Court in the aforesaid appeals reported in Akhil Bharat Goseva Sangh and Ors. v. State of A.P. and Ors. [1997]2SCR1040 . From this order, it appears that the Central Government had constituted an inter-Ministerial committee headed by the Joint Secretary, Ministry of Food Processing Industry and three other Members.In our view, this submission of the appellants, at this stage, cannot be accepted. At the outset, we may say that this question was not seriously argued by the learned Counsel of the appellants before us, although in the written submissions filed by them, this question was tentatively raised. Since a submission was made on this account, we feel it appropriate to deal with this question. Before we deal with this question in detail, we may note that for the first time in this Court the appellants have alleged the fact that the Al-Kabeer unit (company) is located within 13 km. from the standard urban limits of the city of Hyderabad which falls within the prohibited zone.31. Even assuming, distance prohibition would be applicable to the case of Al-Kabeer (company), we are still of the view that this distance prohibition may not stand in the way of Al-Kabeer from getting an industrial licence for the purpose of setting up the abattoir at the site in question. It is an admitted fact that in the application for grant of licence, Al-Kabeer (the Company), had stated the exact location where they were going to set up the abattoir, that is to say in Rudraram Village in the District of Medak of the State of Andhra Pradesh. When this application was processed by the Central Government, a thorough enquiry must have been made by it and only thereafter industrial licence was issued to, the Company. It is true that before issuance of licence, LOT was issued by the Central Government only wherein, this location requirement was stated in a printed form. It is an admitted position that the Central Government did not make any query from the company about the distance between Rudraram Village, where the site is located, and the urban limits of the city of Hyderabad.In our view, Sub-section 2 of Section 11 of the Act. by which conditions can he imposed as to the location of the undertaking by the Central Government is only directory and it would be open to the Central Government, to issue licence without, giving any conditions to the company as to the location of the undertaking. It is significant to note that the legislature in Sub-section 2 of Section 11 has used the word may.33. By issuing the Industrial licence to the Company, even after knowing the proposed location of the unit, it must be said that the Central Government waived the location requirements, as mentioned in its LOI with regard to this unit.Clause (2) of Paragraph 3 of the Notification specified the list of villages falling within the prohibited zone for which, location approval from. The Central Government would be necessary except for non-polluting industries such as electronics, computer software and printing industries. In the present case, the activity of the company, does not fall in the category of non-polluting industries. However, this notification contains two lists. One list is A and the other is B. List A specified all the villages within the standard urban area of Hyderabad. Patancheru which falls within Medak District and is within the compilation of 25 km. from the periphery of the standard urban area of Hyderabad falls under list B. Therefore, in terms of the distance there was requirement of obtaining an industrial licence by - virtue of the Notification dated 3rd February 1992 of the State Government. In view of the admitted fact that industrial licence was granted by the Central Govt. on 11.11.1992 and permission to run the slaughter house was also granted by the State Government on the basis of the Industrial policy of the State Govt. of 3rd February, 1992, we are unable to hold that, distance prohibition could be considered to be a ground either for cancellation of the industrial licence or for closing down the unit.36. It also appears from the record that the Industrial licence was granted by the Central Government on the strong recommendation of the State Government The unit commenced production in April 1993 after dismissal of a batch of Writ Petitions challenging the permissions granted by various authorities to commence production including that of the APPCB. The unit achieved its full production in December 1993 and since then it is earning valuable and substantial foreign exchange for our country. Above all, the question on location, as noted herein earlier, was neither raised seriously before the High Court nor before us. It must also be noted that, in this regard various State authorities had granted permissions for the abattoir to be constructed and function at the selected site and production has been continuing for the last 10 to 15 years. That apart, the question on location requirement is always a question of fact which cannot be permitted to be raised at this stage before us. However, we keep it open to the Central Government and the State Government to consider the distance prohibition as indicated in the LOI and the Notification and General Order of the State Government for the purpose of shifting the site to some other alternative place which would satisfy the location conditions. Subject to the above, this question is answered in favour of the Al-Kabeer (company).39. From a careful consideration of the rival submissions of the parties on the question of environmental pollution, we find that this question was not seriously argued by the appellants during the course of hearing that the company had violated the norms under Environment Protection Rules, 1986. Thus we may not permit the appellant to raise this question before us. However, as environmental pollution has now become a public nuisance, we thought it fit to go into this question and decide the same.40. We have carefully examined the rival submissions made before us by the learned Counsel for the parties on the aforesaid question. From the record it appears that the recommendations regarding environment made by Krishnan Committee so far as the abattoir is concerned, were accepted by the Central Government as would be evident from this Courts order dated 12th March, 1997. It also appears from the record that Al-Kabeer Company had invested huge amount for installation of elaborate anti-pollution equipment, and operates the same with consent obtained from APPCB. It is true that the standards prescribed by APPCB for Al-Kabeer while issuing its consent for slaughtering operation to begin, were indeed in violation of the Environment Protection Rules in so far as they prescribe a lower standard than was mandated by the aforesaid Rules. Under Rule 3 of the Rules, the State Boards are permitted to prescribe higher standards than those mentioned in the Rules but are not permitted to lower the standard. Considering the fact that the permission to operate the abattoir was granted by the APPCB, the State Government and also by various authorities of the State 10 to 15 years back and considering the fact that Al-Kabeer had installed elaborate anti-pollution equipment, by investing huge amount, we are of the view that Al-Kabeer must be directed to comply with the Environment Protection Rules by lowering down the pollution levels at the abattoir to permissible limits, rather than to direct closure of the abattoir of the company. It also appears that the samples which were collected by the Department of Water and Waste Water Examination, Institute of Preventive Medicine, Narayanguda, Hyderabad from Al-Kabeers abattoir indicated violation of the standards prescribed under Environment Protection Rules. Though Al-Kabeer has installed elaborate anti-pollution equipment, it would be of no consequence if such equipment is in reality not bringing down the level of pollution below permissible limits. However, it cannot be overlooked that Al-Kabeer is continuing its operation for more than 10 years without any objection from the APPCB, Therefore, considering all the circumstances, we are of the view that directly ordering closure of Al-Kabeer Abattoir is not called for; rather directions may be given to APPCB to rectify its consent order in accordance with the Environment Protection Rules and also to direct Al-Kabeer to strictly comply with that, rectified consent order and Environment Protection Rules. In the event abattoir fails to comply with such directions from the APPCB, it would be open to the authorities to direct closure of the Al-Kabeer unit. We are taking this view keeping in mind that the appellants had not seriously argued, during the course of hearing before this Court, that the company had in fact violated the standards laid down in the Environment Protection Act and Rules.41. It may also be noted that in the interim judgment dated 12.3.1997 reported in [1997]2SCR1040 , this Court has noted the conclusions of the Central Government. Committee in paragraph 2 wherein, it has recorded that the Committee had accepted the suggestions and recommendations made by the Krishnan Committee with regard to pollution of air and water. It has also been noted therein that the Environmental Audit Report and the Environmental Management Firm Report along with the Environmental Management Plan prepared by the company are acceptable. As already noted , the company has installed elaborate anti-pollution equipment, imported as well as indigenous. The company has been operating only after obtaining consent from APPCB which is regularly renewed. Insofar as standards for discharge of effluents from slaughter house and meat processing are concerned, the same is prescribed under Rule 3 read with entry 50-B of Schedule I of the Environment Protection Rules, 1986. In this connection Entry 50-B (b) of Schedule 1 of Environment Protection Rules 1986 is relevant as it prescribes the B.O.D., suspended solidsoil and grease limits. At this juncture it is also to be noted that Ministry of Environment, Government of India, by its letter dated 29th May 1995 fixed the standards for Al-Kabeer Exports Pvt. Ltd. at 100 B.O.D. and 30 B.O.D. for slaughterhouse and meat, processing respectively. As Al-Kabeer has been operating on the basis of the norms specified by the Central Government and considering the fact that- Al-Kabeer unit has been operating for more than 10 years without, any objection form APPCB and keeping in mind the economic policy of the Central Government, we are of the view that Al-Kaber may not be, at this stage, directed to stop their operation and close the unit. In view of our discussion made hereinbefore, and as APPCB reserves the right to take action against Al-Kabeer for violation of the terms and conditions imposed in its permission, it would be open for APPCB to direct Al-Kabeer to rectify the level of pollution below prescribed limits and in the event that it is not done they may direct Al-Kabeer to close down its abattoir. As noted hereinbefore, it is of course true that the prescribed limit of pollution by APPCB was in violation of the Environment Protection Rules, therefore in our view, directions must be given to APPCB to rectify its consent order and directions be given by them to the abattoir to comply with that rectified consent order in accordance with Rule 3 of the Environment Protection Rules.Learned counsel appearing for Shri Tukkoji contended that the consent order was in derogation of the light of Shri Tukkoji to information in violation of Article 19(1)(a) of the Constitution. According to Shri Tukkoji, he was not only entitled to receive the reports of the analysts relating to the effects of the functioning of the abattoir but also to file objections prior to the issuance of N.O.C. This contention was accepted by the learned Single Judge of the High Court but was rejected by the Division Bench. The Division Bench In the impugned judgment observed as follows-On a prima, facie view of the various provisions of the Water Act and the corresponding provisions of the Air Act, in particular the provisions of Sections 16, 17, 20 and 25 of the Water Act we are not inclined to hold at this stage that a third parts 7 has any right to seek information or material from the State Board at or before granting of consent by it under Section 25(3) of the Water Act. It is not as if aggrieved party is left without a remedy. After consent is granted... any third party who feels aggrieved... can make a complaint to the Court of a First Class Magistrate... Apart, from that, the State Board has ample powers to review its order granting consent by modifying or revoking any existing condition....(Emphasis supplied)44. We do not find any reason to disagree with this view of the Division Bench of the High Court.In this connection, we examined Section 25 of the Water Act in depth and, in our view, Section 25 of the Water Act does not confer any right on members of the public to demand information from the APPCB prior to issuance of NOG. Therefore, it cannot be held, that the NOG was vitiated by reason of non-disclosure of information to the appellant Tukkoji prior to its issuance.45. Thus, first question of Shri Tukkoji as argued by his learned Counsel has no merit and it is hereby rejected.45. Thus, first question of Shri Tukkoji as argued by his learned Counsel has no merit and it is hereby rejected.47. From the record, it appears that at the relevant time the Chairman and the Member Secretary of the APPCB did not possess these statutorily required qualifications. The observation of the High Court in the judgment that some of the members of the APPCB were scientific experts, does not address this specific breach of the statutory requirement. In this connection, we, however, need to look into the provisions under Section 11 of the Water Act, which provides in terms that No act or proceeding of a Board or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in or any defect in the constitution of, the Board or such committee, as the case may be. Therefore, applying Section 11 of the Act which clearly provides that 110 act or proceeding of APPCB or any committee thereof shall be called in question, it can safely be concluded that even if there was some defect in the composition of the APPCB, that would not invalidate the consent order issued by it.54. As noted herein earlier, we have not only carefully examined the Krishnan Committee report but also the other reports submitted toy the Central Government in pursuance of the directions made by this Court in its earlier orders in 1994 and 1997. On cattle depletion the Krishnan Committee noted that the operation of Al-Kabeer would adversely affect the cattle population in and around the region unless 50% of the demand of the abattoir was met through breeding of cattle by Al-Kabeer itself. Before we go into this question we may note that the A.P. Act was enacted in the year 1977 (Act 11 of 1977), By this Act, the Legislature has regulated the slaughter of all bovine animals including buffaloes. Under section 6(1) no animal is allowed to be slaughtered unless a certificate in writing from the competent authority is obtained certifying that the animal is fit for slaughter. Sub-section (2) of Section 6 of the Act prohibits slaughtering of animals unless the competent authority grants a certificate in respect of an animal that it is not likely to become economical for the purpose of breeding, mulching or draught. After carefully reading the conditions for obtaining a permission from the competent authority to slaughter an animal, we find, that slaughtering an animal requires the following;(a) Only old and useless buffaloes can be slaughtered.(b) Buffaloes fit formulching, breeding or draught cannot be slaughtered.(c) Cow and its progeny including calves of cows and calves of buffaloes cannot be slaughtered.56. As noted herein earlier, in the interim direction made by this Court in these appeals on 12th March 1997 [1997]2SCR1040 , this Court directed the Central Govt, to give a report after studying the impact and effect of the working of Al-Kabeer upon the buffalo population of the Telangana Region of Andhra Pradesh and also of the areas adjacent to Al-Kabeer, two years after the commencement of the operations by Al-Kabeer, The Central Government in pursuance of the said direction made on 12th March 1997 filed a fresh report on 15th September 1997. From a reading of the said report, it appears to us that the expert committee of the Central Govt. had examined all issues, as directed by this Court in its judgment dated 12th March 1997.58. On behalf of the appellant, it was argued that in the Central Govt. report figures/statistics were misleading inasmuch as it had taken an average of four years before the commencement, of operations of A1-Kabeer and again of four year figures after the commencement of operations by Al-Kabeer. According to the appellants, the correct way was to see the figures immediately preceding the start of operations by AI-Kabeer and thereafter to see the figures two years after commencement of operation of Al-Kabeer. In our view, this submission is fallacious and cannot be accepted. The committee of the Central Govt. has correctly taken the figures of a block period of four years before commencement of operations and again figures of a block period of four years alter commencement of operations by Al-Kabeer. This is in view of the fact that statistics/figures of one particular year cannot represent or give a proper picture as the number of animals/buffaloes/cattle can very well vary due to natural calamities large scale migration in view of urbanization etc. We do not find any thing to say that the committee of the Central Govt. had gone wrong by proceeding on that basis and it was justified to take a block period of four years which would certainly indicate the trend or show whether there was any steep or persistent decline after the commencement of operations of Al-Kabeer. We must not forget that this Court has also seen that there is no sharp decline or consistent reduction in the number of useful buffaloes year after year after the commencement of operations of Al-Kabeer. The figures/statistics as given by the Central Govt. in its report dated 15.9.1997 as well as the 16th Quinquennial and 17 th Quinquennial Census would clearly indicate that there is an increase in the number of buffaloes and there is no reduction or decline much less a steep decline in the number of buffaloes in the Telangana region, as argued by the appellant.59. The appellant sought to challenge the veracity and correctness of the figures given in the report of the Central Govt. as well as in the Quinquennial census. In our view, this submission is devoid of merit. It is now well-settled by various decisions of this Court that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by courts in the exercise of their power under Article 226 of the Constitution or by this Court under Article 136 or 32 of the Constitution. For this proposition, reliance can be placed on the decision of this Court in the case Systopic Laboratories (Pvt.) Ltd. v. Dr. Prein Gupta and Ors. 1994 Suppl.(1) SCC 160. Paragraphs 19 and 20 of this decision clearly give the answer on the question whether the findings of expert body in technical and scientific matters can be interfered with by the Court either under Article 226 or by this Court under Article 32 or 136 of the Constitution. Paragraph 19 is re-produced below:Having considered the submissions made by the learned Counsel for the petitioners and the learned Additional Solicitor General in this regard, we must express our inability to make an assessment, about the relative merits of the various studies and reports which have been placed before us. Such an evaluation is required to be done by the Central Government while exercising its powers under Section 26A of the Act on the basis of expert advice and the Act makes provision for obtaining such advice through the Hoard and the DCC.(Emphasis supplied)Para 20 is as follows:The learned Counsel for the petitioners have urged that these studies and reports had been submitted on behalf of the petitioners and other manufacturers before the Sub-Committee of the DCC as well as the Experts Committee but there has been no proper consideration of the same by the experts as well as the DCC and the Board. In this context, it has been submitted that no medical expert in the field of clinical medicine in the treatment of asthma was associated in the committees and such-experts alone could make a proper evaluation of the said studies. We find no substance in this contention. We have pursued the minutes of the meetings of the Board, the Subcommittee of the DCC as well as the Experts Committee. The minutes show that, the material that was submitted on behalf of the manufacturers of the drugs in question was examined by the members and it is not possible to hold that there has been no proper consideration of the said material by the Experts Committee or the Subcommittee of the DCC. The complaint that experts in clinical medicine were not associated with the Committee does not appear to be justified. The minutes of the meetings of the experts to consider the views of the affected manufacturers, who represented against the proposed withdrawal of certain formulations moving in the market, which were held on September 8, 1987, October 16/17, 1987 and January 15/ 16, 1989 show that among the members were included Dr. O.D. Gulati, Dean, CAM Medical College, Karansad and Dr. J.P. Wali, Assistant Professor of Medicine, AIIMS. New Delhi, Dr. M. Durairaj Consultant, Cardiologist, Director of Cardiology, Poona Hospital and Research center, Pune was also member of the Sub-Committee and had attended the meeting held on January 15/16, 1988. It cannot, therefore, be said that, the medical experts in clinical medicine were not associated in the Experts Committee for evaluation of the material that was furnished by the manufacturers.(Emphasis supplied)60. Similar is the view expressed by this Court in K. Vasudevan Nair and Ors. v. U.O.I. and Ors. (1991)IILLJ420SC . We have in detail noticed the report of the Krishnan Committee and its recommendations in the earlier part of this judgment. In our view. Krishnan Committee has also not recommended closure of the unit because of cattle depletion but. on the other hand suggested some measures that may be taken to minimize cattle depletion.61. For the reasons aforesaid and in view of the discussions made hereinabove and after considering the reports submitted by the committee of the Central Govt and the 16th and 17th Quinquennial census and report of the Krishnan Committee , we do not find any reason to show our concern that the functioning of Al-Kabeer abattoir would result in depletion of buffalo population in the Hinterland of the abattoir.In the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors. reported in AIR2006SC212 , it has also been held that in view of the position that exists now i.e. adequate availability of cattle feed resources, the question of striking down total ban on slaughter of old cattle For scarcity of fodder resources would not arise at all. In our view, this position cannot be disputed. However, in the present case, we are concerned with the A.P. Act, 1977 which does not impose a total ban on slaughter of a particular type bovine animal, whereas in Mirzapurs case (Supra) this Court dealt with the provisions of Bombay Animal Preservation (Gujarat Amendment) Act, 1994 which imposes a total ban on slaughter of cow and its progeny. So far as the A.P. Act, 1977 is concerned, there is no total ban on slaughter of buffaloes. Therefore, in our view, this submission of the Akhil Bharat Goseva Sangh cannot at all be accepted, as we are not concerned with the case of striking clown a particular provision which imposes fan absolute prohibition of slaughter of particular types of bovine animals. In Mirzapur case, it was, however, not held that permitting slaughter of bovine cattle by itself is unconstitutional. This being the position, we are not in agreement with the learned Counsel for the appellant that Submission No. (h) can come to their assistance for the purpose of banning of slaughter of buffaloes by Al-Kabeer.In our view, as the policies taken by the Central Govt. and APEDA, which is a creation of the Parliament for promotion of export and product development of scheduled products, the question of striking down of the policy cannot arise. However, it will be always open to the Court to direct the Central Govt. or the State Government to renew or review its policy and to make a fresh policy at. any time if they find it to be expedient, to do so. As noted herein earlier, APEDA is a statutory authority created by an Act of Parliament for promotion of export and product development of scheduled products, Scheduled Product has been defined in Section 2(i) of the Act which means any of the agricultural or processed food products included in the Schedule.As noted herein earlier, APEDA is a statutory authority created by an Act of Parliament for promotion of export and product development of scheduled products, Scheduled Product has been defined in Section 2(i) of the Act which means any of the agricultural or processed food products included in the Schedule.Item No. 2 to the Schedule of the Act of 1985 mandates that APEDA shall promote export and development of scheduled products. It is the consistent policy of the Government of India to encourage export of meat and meat products65. It appears that the certificates that are to be or already issued was in conformity with the decision of the Constitution Benchs judgment in Mohd. Hanif Qureshis case reported in . It is the case of the Government as well as the abattoir that only those buffaloes which are unfit for mileching, breeding and draught were permitted to be slaughtered and are being slaughtered. We have already discussed the decline of cattle population because of the operation of Al-Kabeer in this judgment hereinbefore. In Mohd. Hanif Qureshis case reported in the issue was not whether the population of live stock was increasing or not but whether the population of healthy live stock was increasing, Although it was sought to be argued by the appellant that due to slaughter of buffaloes by Al-Kabeer, the population of healthy buffaloes was declining even then in view of our discussion made herein earlier, it must be confirmed that there, is no depletion of cattle/buffalo wealth due to operation of Al-Kabeer. Apart from that, it appears from the record that Al-Kabeer slaughterhouse was built in accordance with European Economic Community Standards and is one of the most modern, scientific, integrated slaughter houses in India with an installed capacity of 15000 MT. If in any way Al-Kabeer is directed to close down their factory the said action on the part, of the Central Government would be to discourage private entrepreneurs to invest in the meat industry which will affect the reputation of India in the export market of meat As we have already noted, the interim direction given by this Court on 12th March 1997 by which the production of Al-Kabeer was reduced to 50 %, the total export of meat from India, which is about 1,70,000 MT., did not reduce. For the reasons aforesaid, we are unable to direct at this stage to strike down the policy regarding meat export from India to foreign countries. We are of the view that the policy of the Central Government cannot be easily struck down only because there was slight decline of cattle growth nor it can be struck down before looking into the entire aspect of the matter. It is also well settled that policy decision of the Government cannot be interfered with or struck down merely on certain factual disputes in the matter. It is not open to the Court to strike down such decision until and unless a serious and grave error is found on the part of the Central Government or the State Government. Such being the position, we are unable to strike down this meat export policy of the Central Government, as in our view, it does not violate the constitutional provisions. That apart, the question regarding constitutionality as mentioned above was not argued before the High Court seriously. Accordingly, this submission of Akhil Bharat Goseva Sangh is hereby rejected.66. Apart from that, from the discussion made hereinabove, we find that it is also the consistent, policy of the Government of India to-encourage export of meat, and meat products. The current foreign trade policy also encourages export of meat provided that a designated veterinary authority certifies that it is not obtained from buffalo used for breeding and mulching purposes, it is true that in the Constitution Bench decision of this Court in the case of State of Gujarat v. Mirzapur reported in AIR2006SC212 it has been held that the protection envisaged under Article 48 extended even to cattle that had ceased to be milch or draught, provided they fall within the category of milch and draught cattle. In State of Gujarat v. Mirzapur (supra) it has also been held that cattle forms the backbone of Indian agriculture and the remain useful throughout their lives. While dealing with Article 48 and 48A of the Constitution read with the fundamental rights, the Constitution Bench further held that both directive principles and fundamental duties must be kept in mind while assessing the reasonableness of legal restrictions placed upon fundamental rights. However, striking down a law or policy on the ground that it violates a directive principle or fundamental duty was not an issue before the Constitution Bench of this Court in the case of State of Gujarat v. Mirzapur (supra). It is true that in the aforesaid Constitution Bench decision it has been held that total prohibition of cow and cow progeny slaughter may be justified. However, it. has not been, held in that decision, that laws and policies which permit such slaughter are unconstitutional. Therefore, the position of law remains that the directive principles and fundamental duties cannot in themselves serve to invalidate a legislation or a policy. Moreover, the export policy itself permits only export of meat from buffaloes that are-certified as not useful formulching. breeding or draught purposes. Therefore, if properly implemented, it cannot be said that the policy will necessarily have adverse consequences, especially in view of the foreign exchange obtained through it. Accordingly, we are unable to accede to the argument of the learned Counsel for the appellant that the meat export policy, as made by the Central Government must to be struck down.67. For the reasons aforesaid, we are of the view that meat export policy need not be struck down subject to constant review by the Central Government in the light of its potentially harmful effects on the economy of the country.81. As noted herein earlier, we find from the reliefs claimed in all the three aforesaid Writ Petitions, a prayer was made seeking a writ in the nature of Mandamus commanding the respondents to strictly enforce the provisions of Sections 4, 8 to 11 and 18 of the 1964 Act in Chamarajnagar Taluk of Mysore District, Coorg District, Kodagu District and also to direct the State Government to establish institutions for taking care of cows and other animals in accordance with the aforesaid provisions of the Act at the earliest.82. In paragraph 8, the High Court concluded in the impugned order on this relief in favour of the appellants and found that it is needless to state that the Government and its officers are required to strictly enforce and implement the provisions of the Act.That being the conclusion made by the High Court in the body of the judgment, in respect of Question No, 1, we. feel it proper at this stage to direct the State Government and its instrumentalities to strictly enforce and implement the provisions of Sections 4, 8 to 11 and 18 of the 1964 Act without, going into this question in detail. It is needless to state that statutory provisions are required to be strictly complied with and therefore it is the duty of the State authorities to comply with the aforesaid provisions of the 1964 Act.According to the appellants, the view taken in Mohd. Hanif Quareshi and Ors. v. State of Bihar [1959]1SCR629 decision-vis-a-vis relationship between Directive Principles and Fundamental Rights requires modification in the light or the decision in the case of Kesavananda Bharathi v. State of Kerala AIR1973SC1461 and subsequent decisions. We need not deal with this aspect of the matter in detail in view of the recent decision of this Court in the case of State of Gujarat v. Mirzapur AIR2006SC212 . The decision of this Court in the case of Mohd. Hanif Quareshi and Ors. v. State of Bihar [1959]1SCR629 has now been over-ruled on this point by the Constitution Bench decision of this Court in Mirzapur case. Therefore, this question is decided in favour of the appellants. In Mohd. Hanif Quareshi and Ors. v. State of Bihar [1959]1SCR629 the contention that a law enacted to give effect to Directive Principles cannot be held to be violative of fundamental rights was rejected on the ground that:a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise the protecting provisions of Chapter III will be a mere rope of sand.( Emphasis supplied).85. This view was, however, not accepted in the aforesaid Constitution Bench decision in the case of State of Gujarat v. Mirzapur AIR2006SC212 . The Constitution Bench noted that after the decision in Kesavananda Bharathi v. State of Kerala AIR1973SC1461 the position is:A restriction placed on any fundamental right aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations : first that it does not run in clear conflict with the fundamental right, and secondly that. It has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution.(Emphasis supplied )In Paragraph 22 of the decision in the case of State of Gujarat v. Mirzapur it has been held as follows:The restrictions which can be placed on the rights listed in Article 19(1) are not, subject only to Articles 19(2) to 19(6); the provisions contained in the Chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the fundamental rights.Further, in the case of State of Gujarat v. Mirzapur so far as Articles 48, 48A and also Article 51A(g) are concerned the following was held:It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right, by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51A of the Constitution play a significant role... The decision in Quareshi-l in which the relevant provisions of the three impugned legislations were struck down on the singular ground of lack of reasonability, would have been decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was given thereto and Articles 48A and 51A(g) were available in the body of the Constitution.(Emphasis supplied)86. In view of the aforesaid admitted position in law, we therefore hold the question No. 2, as framed, must be decided in favour of the appellants. This question, even though decided in favour of the appellants would not materially affect the decision of this appeal.88. Such being the position and in view of the Constitution Bench decision as aforesaid, it can no longer be held that the protection recommended, by this part of the directive under Article 48 of the Constitution can be said to be confined only to cows and calves and those animals which are presently capable of yielding milk or of doing work as draught cattle. The aforesaid Constitution Bench decision has clarified that the protection under Article 48 of the Constitution also extends to cattle which at one time were milch or draught but which have ceased to be such. A submission was made by the learned Counsel for the parties on the usefulness of cattle. In 1958 Quareshis case it was held that cattle becomes useless alter a certain age which is for the Legislature to determine and thereafter their maintenance is a burden on the economy of the country. This position has also been negatived by the decision of the Constitution Bench in the aforesaid case, and it has been held by this Court as follows:We have found that bulls and bullocks do not become useless merely by crossing a particular age....The increasing adoption of non conventional energy sources like Bio-gas plants justify the need for bulls and bullocks to live their full, life inspite of their having ceased to be useful for the purpose of breeding and draught.( Emphasis supplied )89. Following the aforesaid findings and on the basis of the findings that our economy has adequate cattle feed resources and alternative sources of nutrition, in the case of State of Gujarat v. Mirzapur, it was held as under:The Legislature has correctly appreciated the needs of its own people and recorded the some in the Preamble of the impugned enactment and the Statement of Objects and Reasons appended to it. In the light of the material available in abundance before us, there is no escape from the conclusion that_ the protection conferred, by impugned enactment on cow progeny is needed in the interest of Nations economy. Merely because it. may cause inconvenience or some dislocation to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general public. The former must yield to the latter.(Emphasis supplied)90. Therefore, in our view, the interpretation of Article 48 of the Constitution has now been widened and milch and draught cattle include cattle which have become permanently incapacitated to be used for milch and draught purposes. Hence, this question is deckled in favour of the appellants. Though, this question has been decided in favour of the appellants, it does not. make any material difference to the final decision of this case. It is the decision on the next issue i.e. issue No. 4 that will have impact on final directions to be issued in this case.92. In State of Gujarat v. Mirzapur the impugned Act therein, provided for prohibition on slaughter of certain types of cattle. The Constitution Bench of this Court in that case held such a legislation to be constitutional in the light of the finding that the legislation was in furtherance of the directive in Article 48 of the Constitution! and any enactment which, furthers the cause in the directive principles of State Policy cannot be held to be unconstitutional. It was however, not held that permitting slaughter of bovine cattle by itself is unconstitutional. In the case at hand, Section 5 of the 1964 Act does not provide for a total prohibition, on slaughter of bovine cattle. That being the case, declaring Section 5 of the 1964 Act as unconstitutional and directing the State Government, to impose a total ban on slaughter of bovine cattle, as requested by the appellants, would lead to judicial legislation and would encroach upon the powers of the Legislature. Therefore, the prayer of the appellants in issue No. 4 to issue a writ, to the State Government to totally prohibit slaughter of bovine cattle is rejected.93. In view of our discussions made hereinabove, even though the Mirzapur decision supports the submission of the appellants on the questions Nos. 2 and 3, the issuance of writ of Mandamus to compel total prohibition of cattle slaughter would only amount to judicial legislation and would encroach upon the powers of the Karnataka Legislature, as held by the High Court, which, in our view, was the right approach made by it. That being the position, we are of the view that the question of declaring total ban on slaughter of cattle cannot be permitted and Section 5 of the Act cannot be said to be ultra vires of the Constitution. | 0 | 16,701 | 7,848 | ### 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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export and development of scheduled products. It is the consistent policy of the Government of India to encourage export of meat and meat products, as would be evident from the following: Export of buffalo meat is on the OGL list. (i) Government of India in its Directive has stressed export of meat and meat products as thrust area. (ii) Current Foreign Trade Policy encourage export of meat. It provides for export of meat of buffalo provided it is accompanied by a certificate from the designated veterinary authority to the effect that meat or offal are from buffalo not used for breeding and mulching purposes. 65. It appears that the certificates that are to be or already issued was in conformity with the decision of the Constitution Benchs judgment in Mohd. Hanif Qureshis case reported in . It is the case of the Government as well as the abattoir that only those buffaloes which are unfit for mileching, breeding and draught were permitted to be slaughtered and are being slaughtered. We have already discussed the decline of cattle population because of the operation of Al-Kabeer in this judgment hereinbefore. In Mohd. Hanif Qureshis case reported in the issue was not whether the population of live stock was increasing or not but whether the population of healthy live stock was increasing, Although it was sought to be argued by the appellant that due to slaughter of buffaloes by Al-Kabeer, the population of healthy buffaloes was declining even then in view of our discussion made herein earlier, it must be confirmed that there, is no depletion of cattle/buffalo wealth due to operation of Al-Kabeer. Apart from that, it appears from the record that Al-Kabeer slaughterhouse was built in accordance with European Economic Community Standards and is one of the most modern, scientific, integrated slaughter houses in India with an installed capacity of 15000 MT. If in any way Al-Kabeer is directed to close down their factory the said action on the part, of the Central Government would be to discourage private entrepreneurs to invest in the meat industry which will affect the reputation of India in the export market of meat As we have already noted, the interim direction given by this Court on 12th March 1997 by which the production of Al-Kabeer was reduced to 50 %, the total export of meat from India, which is about 1,70,000 MT., did not reduce. For the reasons aforesaid, we are unable to direct at this stage to strike down the policy regarding meat export from India to foreign countries. We are of the view that the policy of the Central Government cannot be easily struck down only because there was slight decline of cattle growth nor it can be struck down before looking into the entire aspect of the matter. It is also well settled that policy decision of the Government cannot be interfered with or struck down merely on certain factual disputes in the matter. It is not open to the Court to strike down such decision until and unless a serious and grave error is found on the part of the Central Government or the State Government. Such being the position, we are unable to strike down this meat export policy of the Central Government, as in our view, it does not violate the constitutional provisions. That apart, the question regarding constitutionality as mentioned above was not argued before the High Court seriously. Accordingly, this submission of Akhil Bharat Goseva Sangh is hereby rejected. 66. Apart from that, from the discussion made hereinabove, we find that it is also the consistent, policy of the Government of India to-encourage export of meat, and meat products. The current foreign trade policy also encourages export of meat provided that a designated veterinary authority certifies that it is not obtained from buffalo used for breeding and mulching purposes, it is true that in the Constitution Bench decision of this Court in the case of State of Gujarat v. Mirzapur reported in AIR2006SC212 it has been held that the protection envisaged under Article 48 extended even to cattle that had ceased to be milch or draught, provided they fall within the category of milch and draught cattle. In State of Gujarat v. Mirzapur (supra) it has also been held that cattle forms the backbone of Indian agriculture and the remain useful throughout their lives. While dealing with Article 48 and 48A of the Constitution read with the fundamental rights, the Constitution Bench further held that both directive principles and fundamental duties must be kept in mind while assessing the reasonableness of legal restrictions placed upon fundamental rights. However, striking down a law or policy on the ground that it violates a directive principle or fundamental duty was not an issue before the Constitution Bench of this Court in the case of State of Gujarat v. Mirzapur (supra). It is true that in the aforesaid Constitution Bench decision it has been held that total prohibition of cow and cow progeny slaughter may be justified. However, it. has not been, held in that decision, that laws and policies which permit such slaughter are unconstitutional. Therefore, the position of law remains that the directive principles and fundamental duties cannot in themselves serve to invalidate a legislation or a policy. Moreover, the export policy itself permits only export of meat from buffaloes that are-certified as not useful formulching. breeding or draught purposes. Therefore, if properly implemented, it cannot be said that the policy will necessarily have adverse consequences, especially in view of the foreign exchange obtained through it. Accordingly, we are unable to accede to the argument of the learned Counsel for the appellant that the meat export policy, as made by the Central Government must to be struck down. 67. For the reasons aforesaid, we are of the view that meat export policy need not be struck down subject to constant review by the Central Government in the light of its potentially harmful effects on the economy of the country.
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the Chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the fundamental rights.Further, in the case of State of Gujarat v. Mirzapur so far as Articles 48, 48A and also Article 51A(g) are concerned the following was held:It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right, by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51A of the Constitution play a significant role... The decision in Quareshi-l in which the relevant provisions of the three impugned legislations were struck down on the singular ground of lack of reasonability, would have been decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was given thereto and Articles 48A and 51A(g) were available in the body of the Constitution.(Emphasis supplied)86. In view of the aforesaid admitted position in law, we therefore hold the question No. 2, as framed, must be decided in favour of the appellants. This question, even though decided in favour of the appellants would not materially affect the decision of this appeal.88. Such being the position and in view of the Constitution Bench decision as aforesaid, it can no longer be held that the protection recommended, by this part of the directive under Article 48 of the Constitution can be said to be confined only to cows and calves and those animals which are presently capable of yielding milk or of doing work as draught cattle. The aforesaid Constitution Bench decision has clarified that the protection under Article 48 of the Constitution also extends to cattle which at one time were milch or draught but which have ceased to be such. A submission was made by the learned Counsel for the parties on the usefulness of cattle. In 1958 Quareshis case it was held that cattle becomes useless alter a certain age which is for the Legislature to determine and thereafter their maintenance is a burden on the economy of the country. This position has also been negatived by the decision of the Constitution Bench in the aforesaid case, and it has been held by this Court as follows:We have found that bulls and bullocks do not become useless merely by crossing a particular age....The increasing adoption of non conventional energy sources like Bio-gas plants justify the need for bulls and bullocks to live their full, life inspite of their having ceased to be useful for the purpose of breeding and draught.( Emphasis supplied )89. Following the aforesaid findings and on the basis of the findings that our economy has adequate cattle feed resources and alternative sources of nutrition, in the case of State of Gujarat v. Mirzapur, it was held as under:The Legislature has correctly appreciated the needs of its own people and recorded the some in the Preamble of the impugned enactment and the Statement of Objects and Reasons appended to it. In the light of the material available in abundance before us, there is no escape from the conclusion that_ the protection conferred, by impugned enactment on cow progeny is needed in the interest of Nations economy. Merely because it. may cause inconvenience or some dislocation to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general public. The former must yield to the latter.(Emphasis supplied)90. Therefore, in our view, the interpretation of Article 48 of the Constitution has now been widened and milch and draught cattle include cattle which have become permanently incapacitated to be used for milch and draught purposes. Hence, this question is deckled in favour of the appellants. Though, this question has been decided in favour of the appellants, it does not. make any material difference to the final decision of this case. It is the decision on the next issue i.e. issue No. 4 that will have impact on final directions to be issued in this case.92. In State of Gujarat v. Mirzapur the impugned Act therein, provided for prohibition on slaughter of certain types of cattle. The Constitution Bench of this Court in that case held such a legislation to be constitutional in the light of the finding that the legislation was in furtherance of the directive in Article 48 of the Constitution! and any enactment which, furthers the cause in the directive principles of State Policy cannot be held to be unconstitutional. It was however, not held that permitting slaughter of bovine cattle by itself is unconstitutional. In the case at hand, Section 5 of the 1964 Act does not provide for a total prohibition, on slaughter of bovine cattle. That being the case, declaring Section 5 of the 1964 Act as unconstitutional and directing the State Government, to impose a total ban on slaughter of bovine cattle, as requested by the appellants, would lead to judicial legislation and would encroach upon the powers of the Legislature. Therefore, the prayer of the appellants in issue No. 4 to issue a writ, to the State Government to totally prohibit slaughter of bovine cattle is rejected.93. In view of our discussions made hereinabove, even though the Mirzapur decision supports the submission of the appellants on the questions Nos. 2 and 3, the issuance of writ of Mandamus to compel total prohibition of cattle slaughter would only amount to judicial legislation and would encroach upon the powers of the Karnataka Legislature, as held by the High Court, which, in our view, was the right approach made by it. That being the position, we are of the view that the question of declaring total ban on slaughter of cattle cannot be permitted and Section 5 of the Act cannot be said to be ultra vires of the Constitution.
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Lalji Haridas Vs. R. H. Bhatt and Another | No. 1 was not satisfied with the explanation given by the appellant, and so he passed the order of assessment as indicated aboveAgainst this order of assessment, the appellant preferred an appeal to the Appellate Assistant Commissioner of Income-tax, Rajkot. Before the appellate authority, the appellant contended that all his witnesses were not allowed to be examined by respondent No. 1 and that some of the evidence which was being given by his witnesses was also not properly recorded. The appellate authority partly accepted his contention and by its order passed on the 3rd September, 1959, it remanded the proceedings to respondent No. 1 and directed him to submit a report after examining the witnesses whom the appellant wanted to cite. Even while making this order of remand, the Appellate Assistant Commissioner commented on the fact that the appellant appeared to be determined to adopt dilatory proceedings and delay as much as he can the final disposal of the proceedings taken against him3. After the matter was thus remanded to respondent No. 1, the appellant was required by two letters dated 13th April, 1960, and 7th July, 1960, to appear before respondent No. 1 and give his evidence. Instead of complying with the requisition contained in the said letters, the appellant moved the Gujarat High Court on the 9th July, 1960, by his present writ petition. It appears that he also preferred an appeal from the remand order to the Income-tax Appellate Tribunal. The High Court summarily rejected the writ petition filed by the appellant, and it is against this summary dismissal that the appellant has come to this court4. From the petition for special leave, it would appear that at the time of admission, the appellant presumably urged before this court that the Saurashtra Income-tax Ordinance under which the present proceedings had been commenced against him was invalid. In any event, that is one of the grounds taken in the petition for special leave. Mr. Pathak for the appellant frankly conceded that he was not in a position to justify or substantiate the said contention, and so the only ground taken in the petition which, prima facie, appears to be a ground of law and jurisdiction, is not pressed. Meanwhile, the proceedings after remand before respondent No. 1 have been stayed and in that sense, the object of the appellant in preferring this appeal has been substantially achievedMr. Pathak for the appellant attempted to argue that the notice issued against the appellant is, on the face of it, invalid, because it is barred by time. We did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent No. 1 himself. The jurisdiction conferred on the High Court under article 226 is not intended to supersede the jurisdiction and authority of the Income-tax Officers to deal with the merits of all the contentions that the assessees may raise before them, and so it would be entirely inappropriate to permit an assessee to move the High Court under article 226 and contend that a notice issued against him is barred by time. That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence5. Apart from this aspect of the matter, however, the plea of limitation sought to be raised by Mr. Pathak was not even specifically made as it should have been in the writ petition filed before the High Court. One of the grounds taken in the writ petition was that the Appellate Assistant Commissioner had " instead of treating the assessment order a nullity and having the same set aside, illegally remanded the case back to the Income-tax Officer to save limitation ". It would be noticed that at its highest, this ground can mean that the result of the remand order was to attempt to save limitation ; it has no relevance on the point sought to be raised by Mr. Pathak that the notice issued against his client initially was barred by time. But, as we have already indicated, a plea of this kind cannot be permitted to be raised in writ proceedings, and so we refused Mr. Pathak, permission to develop this point6. The other point which Mr. Pathak wanted to raise was that for the transactions in question other persons had been taxed, and he suggested that an order which had been passed by respondent No. 1 on the 17th December, 1958, was in the nature of a levy of protective assessment, and so it should be set aside. This point again ought to be raised before the Income-tax Officer and cannot be allowed to be urged before the High Court under article 226. Even in respect of this point, the plea taken is extremely vague and the appellant has not even stated on oath that other persons have in fact paid assessment in respect of transactions which respondent No. 1 regards as his. All that the appellants writ petition says is that he is given to understand that the amounts sought to be included in the assessments of the appellant have already been found by the income-tax department, Bombay, to be the income of the said Mulji Manilal Kamdar and that he has been assessed on the same amounts by the 6th Income-tax Officer, C-I Ward, Bombay, and recovery proceedings have already been started against him. It is plain that an allegation that the appellant is given to understand does not amount to an allegation on oath about the fact which the appellant knows to be true. It is thus clear that the main object which the appellant had in mind in moving this court under article 136 was to gain time. That is why at the final hearing, not even an attempt was made to raise any question about the jurisdiction of respondent No. 1 or the validity of the law under which he is proceeding against the appellant | 0[ds]Having heard Mr. Pathak on behalf of the appellant, we have come to the conclusion that there is no substance in this appeal and it must be dismissed with costs. In fact, this appeal illustrates how an assessee can prolong the assessment proceedings by adopting judicial proceedings available to him under the law and thereby postpone indefinitely the final disposal of the said proceedings by the income-taxWe did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent No. 1 himself. The jurisdiction conferred on the High Court under article 226 is not intended to supersede the jurisdiction and authority of the Income-tax Officers to deal with the merits of all the contentions that the assessees may raise before them, and so it would be entirely inappropriate to permit an assessee to move the High Court under article 226 and contend that a notice issued against him is barred by time. That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence5. Apart from this aspect of the matter, however, the plea of limitation sought to be raised by Mr. Pathak was not even specifically made as it should have been in the writ petition filed before the High Court. One of the grounds taken in the writ petition was that the Appellate Assistant Commissioner had " instead of treating the assessment order a nullity and having the same set aside, illegally remanded the case back to the Income-tax Officer to save limitation ". It would be noticed that at its highest, this ground can mean that the result of the remand order was to attempt to save limitation ; it has no relevance on the point sought to be raised by Mr. Pathak that the notice issued against his client initially was barred by time. But, as we have already indicated, a plea of this kind cannot be permitted to be raised in writ proceedings, and so we refused Mr. Pathak, permission to develop thispoint again ought to be raised before the Income-tax Officer and cannot be allowed to be urged before the High Court under article 226. Even in respect of this point, the plea taken is extremely vague and the appellant has not even stated on oath that other persons have in fact paid assessment in respect of transactions which respondent No. 1 regards as his. All that the appellants writ petition says is that he is given to understand that the amounts sought to be included in the assessments of the appellant have already been found by the income-tax department, Bombay, to be the income of the said Mulji Manilal Kamdar and that he has been assessed on the same amounts by the 6th Income-tax Officer, C-I Ward, Bombay, and recovery proceedings have already been started against him. It is plain that an allegation that the appellant is given to understand does not amount to an allegation on oath about the fact which the appellant knows to be true. It is thus clear that the main object which the appellant had in mind in moving this court under article 136 was to gain time. That is why at the final hearing, not even an attempt was made to raise any question about the jurisdiction of respondent No. 1 or the validity of the law under which he is proceeding against the appellant | 0 | 1,679 | 620 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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No. 1 was not satisfied with the explanation given by the appellant, and so he passed the order of assessment as indicated aboveAgainst this order of assessment, the appellant preferred an appeal to the Appellate Assistant Commissioner of Income-tax, Rajkot. Before the appellate authority, the appellant contended that all his witnesses were not allowed to be examined by respondent No. 1 and that some of the evidence which was being given by his witnesses was also not properly recorded. The appellate authority partly accepted his contention and by its order passed on the 3rd September, 1959, it remanded the proceedings to respondent No. 1 and directed him to submit a report after examining the witnesses whom the appellant wanted to cite. Even while making this order of remand, the Appellate Assistant Commissioner commented on the fact that the appellant appeared to be determined to adopt dilatory proceedings and delay as much as he can the final disposal of the proceedings taken against him3. After the matter was thus remanded to respondent No. 1, the appellant was required by two letters dated 13th April, 1960, and 7th July, 1960, to appear before respondent No. 1 and give his evidence. Instead of complying with the requisition contained in the said letters, the appellant moved the Gujarat High Court on the 9th July, 1960, by his present writ petition. It appears that he also preferred an appeal from the remand order to the Income-tax Appellate Tribunal. The High Court summarily rejected the writ petition filed by the appellant, and it is against this summary dismissal that the appellant has come to this court4. From the petition for special leave, it would appear that at the time of admission, the appellant presumably urged before this court that the Saurashtra Income-tax Ordinance under which the present proceedings had been commenced against him was invalid. In any event, that is one of the grounds taken in the petition for special leave. Mr. Pathak for the appellant frankly conceded that he was not in a position to justify or substantiate the said contention, and so the only ground taken in the petition which, prima facie, appears to be a ground of law and jurisdiction, is not pressed. Meanwhile, the proceedings after remand before respondent No. 1 have been stayed and in that sense, the object of the appellant in preferring this appeal has been substantially achievedMr. Pathak for the appellant attempted to argue that the notice issued against the appellant is, on the face of it, invalid, because it is barred by time. We did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent No. 1 himself. The jurisdiction conferred on the High Court under article 226 is not intended to supersede the jurisdiction and authority of the Income-tax Officers to deal with the merits of all the contentions that the assessees may raise before them, and so it would be entirely inappropriate to permit an assessee to move the High Court under article 226 and contend that a notice issued against him is barred by time. That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence5. Apart from this aspect of the matter, however, the plea of limitation sought to be raised by Mr. Pathak was not even specifically made as it should have been in the writ petition filed before the High Court. One of the grounds taken in the writ petition was that the Appellate Assistant Commissioner had " instead of treating the assessment order a nullity and having the same set aside, illegally remanded the case back to the Income-tax Officer to save limitation ". It would be noticed that at its highest, this ground can mean that the result of the remand order was to attempt to save limitation ; it has no relevance on the point sought to be raised by Mr. Pathak that the notice issued against his client initially was barred by time. But, as we have already indicated, a plea of this kind cannot be permitted to be raised in writ proceedings, and so we refused Mr. Pathak, permission to develop this point6. The other point which Mr. Pathak wanted to raise was that for the transactions in question other persons had been taxed, and he suggested that an order which had been passed by respondent No. 1 on the 17th December, 1958, was in the nature of a levy of protective assessment, and so it should be set aside. This point again ought to be raised before the Income-tax Officer and cannot be allowed to be urged before the High Court under article 226. Even in respect of this point, the plea taken is extremely vague and the appellant has not even stated on oath that other persons have in fact paid assessment in respect of transactions which respondent No. 1 regards as his. All that the appellants writ petition says is that he is given to understand that the amounts sought to be included in the assessments of the appellant have already been found by the income-tax department, Bombay, to be the income of the said Mulji Manilal Kamdar and that he has been assessed on the same amounts by the 6th Income-tax Officer, C-I Ward, Bombay, and recovery proceedings have already been started against him. It is plain that an allegation that the appellant is given to understand does not amount to an allegation on oath about the fact which the appellant knows to be true. It is thus clear that the main object which the appellant had in mind in moving this court under article 136 was to gain time. That is why at the final hearing, not even an attempt was made to raise any question about the jurisdiction of respondent No. 1 or the validity of the law under which he is proceeding against the appellant
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0
### Explanation:
Having heard Mr. Pathak on behalf of the appellant, we have come to the conclusion that there is no substance in this appeal and it must be dismissed with costs. In fact, this appeal illustrates how an assessee can prolong the assessment proceedings by adopting judicial proceedings available to him under the law and thereby postpone indefinitely the final disposal of the said proceedings by the income-taxWe did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent No. 1 himself. The jurisdiction conferred on the High Court under article 226 is not intended to supersede the jurisdiction and authority of the Income-tax Officers to deal with the merits of all the contentions that the assessees may raise before them, and so it would be entirely inappropriate to permit an assessee to move the High Court under article 226 and contend that a notice issued against him is barred by time. That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence5. Apart from this aspect of the matter, however, the plea of limitation sought to be raised by Mr. Pathak was not even specifically made as it should have been in the writ petition filed before the High Court. One of the grounds taken in the writ petition was that the Appellate Assistant Commissioner had " instead of treating the assessment order a nullity and having the same set aside, illegally remanded the case back to the Income-tax Officer to save limitation ". It would be noticed that at its highest, this ground can mean that the result of the remand order was to attempt to save limitation ; it has no relevance on the point sought to be raised by Mr. Pathak that the notice issued against his client initially was barred by time. But, as we have already indicated, a plea of this kind cannot be permitted to be raised in writ proceedings, and so we refused Mr. Pathak, permission to develop thispoint again ought to be raised before the Income-tax Officer and cannot be allowed to be urged before the High Court under article 226. Even in respect of this point, the plea taken is extremely vague and the appellant has not even stated on oath that other persons have in fact paid assessment in respect of transactions which respondent No. 1 regards as his. All that the appellants writ petition says is that he is given to understand that the amounts sought to be included in the assessments of the appellant have already been found by the income-tax department, Bombay, to be the income of the said Mulji Manilal Kamdar and that he has been assessed on the same amounts by the 6th Income-tax Officer, C-I Ward, Bombay, and recovery proceedings have already been started against him. It is plain that an allegation that the appellant is given to understand does not amount to an allegation on oath about the fact which the appellant knows to be true. It is thus clear that the main object which the appellant had in mind in moving this court under article 136 was to gain time. That is why at the final hearing, not even an attempt was made to raise any question about the jurisdiction of respondent No. 1 or the validity of the law under which he is proceeding against the appellant
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Dharmendra Goel Vs. Oriental Insurance Co.Ltd | sum of Rs. 1,04,043/- with interest @ 6% p.a. from the date of the filing of the complaint till payment. Dissatisfied by the inadequate compensation awarded by the State Commission, the appellant preferred a revision petition before the National Consumer Disputes Redressal Commission, New Delhi (hereinafter called "the National Commission"), claiming a sum of Rs. 3,54,000/-towards compensation. The National Commission, by its order dated 20th April, 2006 partly allowed the appeal and granted a compensation of Rs.1,80,000/- with interest @12% p.a. The claimant is before us in appeal in these circumstances.4. The learned counsel for the appellant has raised only one argument in the course of hearing. He has submitted that the company itself had issued an insurance policy in a sum of Rs.3,54,000/- effective from 13th February, 2002 to 12th March, 2003 and had also accepted a premium on that basis and as such to claim that the appellant was entitled to a figure below that amount was wholly unjustified. He has also submitted in elucidation, that there was absolutely no basis for the surveyors conclusion that the appellant was entitled to a sum of Rs.1,80,000/- on total loss basis in the face of the estimate made by the Chambal Motors for a much larger amount.5. The learned counsel for the Company - Respondent has , however, pointed out that the appellants counsel, had in his arguments before the National Commission, given up his claim to Rs.3,54,000/- as now contended, and had limited the same to Rs.1,80,000/- and this amount had in fact been allowed and in this view of the matter, any claim for a further sum was not justified. It has also been pleaded that the appellant had led no evidence to challenge the value put on the vehicle by the surveyor so as to substantiate his claim. 6. We have heard the learned counsels for the parties and have gone through the record very carefully. The facts as narrated above remain uncontroverted. Admittedly, the accident had happened on 10th September, 2002 during the validity of the Insurance Policy taken on 13th February, 2002 insuring the vehicle for Rs.3,54,000/- on a premium of Rs.8498/- It is also the admitted position that the vehicle had been declared to be a total loss by the surveyor appointed by the company though the value of the vehicle on total loss basis had been assessed at Rs.1,80,000/- We are, in the circumstances, of the opinion that as the company itself had accepted the value of the vehicle at Rs.3,54,000/- on 13th February, 2002, it could not claim that the value of the vehicle on total loss basis on 10th September, 2002 i.e., on the date of the accident was only Rs.1,80,000/-. It bears reiteration that the cost of the new vehicle was Rs.4,30,000/- and it was insured in that amount on 19th January, 2000 and on the expiry of this policy on 18th January, 2001, was again renewed on 19th January, 2001 on a value of Rs.3,59,000/- and on the further renewal of the policy on 13th February, 2002 the value was reduced by only Rs.5,000/- to Rs.3,54,000/-. We are, therefore, unable to accept the companys contention that within a span of seven months from 13th February 2002 to the date of the accident, the value of the vehicle had depreciated from Rs.3,54,000/- to Rs.1,80,000/-. It must be borne in mind that Section 146 of the Motors Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation. This `take it or leave it attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyors report was on the lower side in the light of the fact that a price had already been put on the vehicle by the company itself at the time of renewal of the policy. We accordingly hold that in these circumstances, the company was bound by the value put on the vehicle while renewing the policy on 13th February, 2002. 7. The learned counsel for the respondent, has however, argued that in the course of hearing before the National Commission, the appellant had limited his claim to Rs.1,80,000/- and having been awarded that amount, could not claim anything beyond that figure. We, however, notice from a bare reading of the order of the National Commission that the primary claim made by the appellant was for a sum of Rs.3,54,000/- and in the alternative for Rs.1,80,000/-. This fact is made more explicit from the grounds of revision filed before the National Commission wherein a sum of Rs.3,50,000/- had been repeatedly claimed. Even otherwise, we believe that in such matters, the court must take a realistic view and if a particular claim to compensation is possible on the material on record, it should not be denied on hyper technical pleas, as has been argued by the respondents counsel.8. The learned counsel for the respondent company has finally submitted that as the vehicle had been insured for Rs.3,54,000/- on 13th February, 2002 and the accident had happened about seven months later (on 10th September, 2002), some depreciation in the value of the vehicle ought to be made and the compensation determined on that basis. We accept this prayer of the learned counsel and keeping in view that about seven months of the policy had expired, order that the value of the vehicle should be reduced by Rs.10,000/-. | 1[ds]6. We have heard the learned counsels for the parties and have gone through the record very carefully. The facts as narrated above remain uncontroverted. Admittedly, the accident had happened on 10th September, 2002 during the validity of the Insurance Policy taken on 13th February, 2002 insuring the vehicle for Rs.3,54,000/- on a premium of Rs.8498/- It is also the admitted position that the vehicle had been declared to be a total loss by the surveyor appointed by the company though the value of the vehicle on total loss basis had been assessed at Rs.1,80,000/- We are, in the circumstances, of the opinion that as the company itself had accepted the value of the vehicle at Rs.3,54,000/- on 13th February, 2002, it could not claim that the value of the vehicle on total loss basis on 10th September, 2002 i.e., on the date of the accident was only Rs.1,80,000/-. It bears reiteration that the cost of the new vehicle was Rs.4,30,000/- and it was insured in that amount on 19th January, 2000 and on the expiry of this policy on 18th January, 2001, was again renewed on 19th January, 2001 on a value of Rs.3,59,000/- and on the further renewal of the policy on 13th February, 2002 the value was reduced by only Rs.5,000/- to Rs.3,54,000/-. We are, therefore, unable to accept the companys contention that within a span of seven months from 13th February 2002 to the date of the accident, the value of the vehicle had depreciated from Rs.3,54,000/- to Rs.1,80,000/-. It must be borne in mind that Section 146 of the Motors Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation. This `take it or leave it attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyors report was on the lower side in the light of the fact that a price had already been put on the vehicle by the company itself at the time of renewal of the policy. We accordingly hold that in these circumstances, the company was bound by the value put on the vehicle while renewing the policy on 13th February, | 1 | 1,599 | 500 | ### 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:
sum of Rs. 1,04,043/- with interest @ 6% p.a. from the date of the filing of the complaint till payment. Dissatisfied by the inadequate compensation awarded by the State Commission, the appellant preferred a revision petition before the National Consumer Disputes Redressal Commission, New Delhi (hereinafter called "the National Commission"), claiming a sum of Rs. 3,54,000/-towards compensation. The National Commission, by its order dated 20th April, 2006 partly allowed the appeal and granted a compensation of Rs.1,80,000/- with interest @12% p.a. The claimant is before us in appeal in these circumstances.4. The learned counsel for the appellant has raised only one argument in the course of hearing. He has submitted that the company itself had issued an insurance policy in a sum of Rs.3,54,000/- effective from 13th February, 2002 to 12th March, 2003 and had also accepted a premium on that basis and as such to claim that the appellant was entitled to a figure below that amount was wholly unjustified. He has also submitted in elucidation, that there was absolutely no basis for the surveyors conclusion that the appellant was entitled to a sum of Rs.1,80,000/- on total loss basis in the face of the estimate made by the Chambal Motors for a much larger amount.5. The learned counsel for the Company - Respondent has , however, pointed out that the appellants counsel, had in his arguments before the National Commission, given up his claim to Rs.3,54,000/- as now contended, and had limited the same to Rs.1,80,000/- and this amount had in fact been allowed and in this view of the matter, any claim for a further sum was not justified. It has also been pleaded that the appellant had led no evidence to challenge the value put on the vehicle by the surveyor so as to substantiate his claim. 6. We have heard the learned counsels for the parties and have gone through the record very carefully. The facts as narrated above remain uncontroverted. Admittedly, the accident had happened on 10th September, 2002 during the validity of the Insurance Policy taken on 13th February, 2002 insuring the vehicle for Rs.3,54,000/- on a premium of Rs.8498/- It is also the admitted position that the vehicle had been declared to be a total loss by the surveyor appointed by the company though the value of the vehicle on total loss basis had been assessed at Rs.1,80,000/- We are, in the circumstances, of the opinion that as the company itself had accepted the value of the vehicle at Rs.3,54,000/- on 13th February, 2002, it could not claim that the value of the vehicle on total loss basis on 10th September, 2002 i.e., on the date of the accident was only Rs.1,80,000/-. It bears reiteration that the cost of the new vehicle was Rs.4,30,000/- and it was insured in that amount on 19th January, 2000 and on the expiry of this policy on 18th January, 2001, was again renewed on 19th January, 2001 on a value of Rs.3,59,000/- and on the further renewal of the policy on 13th February, 2002 the value was reduced by only Rs.5,000/- to Rs.3,54,000/-. We are, therefore, unable to accept the companys contention that within a span of seven months from 13th February 2002 to the date of the accident, the value of the vehicle had depreciated from Rs.3,54,000/- to Rs.1,80,000/-. It must be borne in mind that Section 146 of the Motors Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation. This `take it or leave it attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyors report was on the lower side in the light of the fact that a price had already been put on the vehicle by the company itself at the time of renewal of the policy. We accordingly hold that in these circumstances, the company was bound by the value put on the vehicle while renewing the policy on 13th February, 2002. 7. The learned counsel for the respondent, has however, argued that in the course of hearing before the National Commission, the appellant had limited his claim to Rs.1,80,000/- and having been awarded that amount, could not claim anything beyond that figure. We, however, notice from a bare reading of the order of the National Commission that the primary claim made by the appellant was for a sum of Rs.3,54,000/- and in the alternative for Rs.1,80,000/-. This fact is made more explicit from the grounds of revision filed before the National Commission wherein a sum of Rs.3,50,000/- had been repeatedly claimed. Even otherwise, we believe that in such matters, the court must take a realistic view and if a particular claim to compensation is possible on the material on record, it should not be denied on hyper technical pleas, as has been argued by the respondents counsel.8. The learned counsel for the respondent company has finally submitted that as the vehicle had been insured for Rs.3,54,000/- on 13th February, 2002 and the accident had happened about seven months later (on 10th September, 2002), some depreciation in the value of the vehicle ought to be made and the compensation determined on that basis. We accept this prayer of the learned counsel and keeping in view that about seven months of the policy had expired, order that the value of the vehicle should be reduced by Rs.10,000/-.
### Response:
1
### Explanation:
6. We have heard the learned counsels for the parties and have gone through the record very carefully. The facts as narrated above remain uncontroverted. Admittedly, the accident had happened on 10th September, 2002 during the validity of the Insurance Policy taken on 13th February, 2002 insuring the vehicle for Rs.3,54,000/- on a premium of Rs.8498/- It is also the admitted position that the vehicle had been declared to be a total loss by the surveyor appointed by the company though the value of the vehicle on total loss basis had been assessed at Rs.1,80,000/- We are, in the circumstances, of the opinion that as the company itself had accepted the value of the vehicle at Rs.3,54,000/- on 13th February, 2002, it could not claim that the value of the vehicle on total loss basis on 10th September, 2002 i.e., on the date of the accident was only Rs.1,80,000/-. It bears reiteration that the cost of the new vehicle was Rs.4,30,000/- and it was insured in that amount on 19th January, 2000 and on the expiry of this policy on 18th January, 2001, was again renewed on 19th January, 2001 on a value of Rs.3,59,000/- and on the further renewal of the policy on 13th February, 2002 the value was reduced by only Rs.5,000/- to Rs.3,54,000/-. We are, therefore, unable to accept the companys contention that within a span of seven months from 13th February 2002 to the date of the accident, the value of the vehicle had depreciated from Rs.3,54,000/- to Rs.1,80,000/-. It must be borne in mind that Section 146 of the Motors Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter 11 of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation. This `take it or leave it attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyors report was on the lower side in the light of the fact that a price had already been put on the vehicle by the company itself at the time of renewal of the policy. We accordingly hold that in these circumstances, the company was bound by the value put on the vehicle while renewing the policy on 13th February,
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Lord Krishna Sugar Mills Vs. Municipal Committee, Saharanpur | 13. The Mills feeling aggrieved filed a petition under Art. 226 of the Constitution in the High Court of Allahabad for a writ to restrain the Municipality from withholding the refund. The pitetion was dismissed by Mr. Justice Mehrotra on February 12, 1957 and a special appeal under the Letters Patent was also dismissed by Mootham, C. J. and A. P. Srivastava, J. on September 10, 1960. This appeal is filed by the Mills on a certificate granted by the High Court. 14. My learned brother Wanchoo has affirmed the decisions in the High Court. In my opinion, and I say it respectfully, the contention of the Mills is well-founded. The intention of the rule undoubtedly is to free goods in transit from tolls on proof that they have been exported from the municipal limits as required by R. 8 (a), the question is: what does R. 8(a) require a person to and what can the Mills do in the Present circumstances? Rule 8 (a) analysed shows that the person incharge of a truck laden with taxable goods has to declare in writing to the moharrir at the import barrier that the goods which are being imported are meant for immediate export from such limits without sorting and change of bulk. This declaration is made by the persons incharge of the trucks belonging to the Mills. The moharrir to whom such declaration is made, then issues a transit pass in Form 61 of the M. A. C. and the person to whom it is issued has to present it together with the truck carrying the goods covered by transit pass to the moharrir at the barrier of export within half an hour from the time of issue of the transit pass. This is also complied with by the person incharge of the trucks belonging to the Mills. The goods then pass the export barrier and without sorting and change of bulk. The goods are next unloaded on the railway premises and the tracts return empty. No doubt some time passes before the goods are booked and some more time passes before they are loaded on trains and they do lie within the municipal limits, but as goods which have passed the export barrier and which cannot enter the municipal limits again without passing through an import barrier, they should merit a release from tolls. This is the result of the fact that the Municipality has established its barrier convenient to itself so as to segregate the railway yard from the town proper. It is to be remembered that person coming to the railway station and passing through without entering the municipal barrier are not required to pay toll even though they technically enter the municipal limits. This is because the railway yard is not considered as the area where the Municipality chooses to impose its taxes. The Municipality imposes its taxes only when there is entry into the town from the railway yard. The same thing obtains when goods are exported through the export barrier and enter the railway yard. In so far as the Municipality is concerned it satisfied itself that the goods have passed out of the municipal area and are not likely to re-enter without paying toll. The rule must be applied in a fair and equitable manner and one of the cardinal principles of law is that law does not expect, nor does it compel, a man to do that which he cannot possibly perform. The goods may not be for "immediate" export but they are meant for export and are in fact exported. The word "immediately" must be, in the circumstances understood as allowing a reasonable time for export 15. See Maxwell on the Interpretation of Statutes (Eleventh Edition), p. 341, where the following passage occurs :-"When a statute requires that some thing shall be done "forthwith", or "immediately" or even "instantly", it would probably be understood as allowing a reasonable time for doing it ....". The Mills cannot take the goods out of the municipal area on their own when they have passed through an export barrier into the railway yard. Having done everything that can possibly be done the law does not compel them to do more. 16. I may mention here that in the Central India Spinning and Weaving and Manufacturing Co. Ltd., The Empress Mills, Nagpur v. Municipal Committee, Wardha, AIR 1958 SC 841, this Court allowed refund in respect of goods entering a municipal barrier but passing out of the municipal limits in the same trucks, even though there was no provision for a declaration or a transit pass or an export barrier. It was pointed out what the words import and export meant in such a context. The word import, it was held, was not merely bringing into but something more, i.e., incorporating and mixing up of the goods imported with the mass of the property and export, it was also held, had reference to taking out of goods which had become part and parcel of the mass of the property in the local area. Goods in transit were, therefore, held to be neither imported nor exported. It was on this ground that goods which are on trains in municipal area were held neither to be imported nor exported. The present case is even stronger. 17. In my judgment, the Municipality by its own arrangement, regards the station yard as being outside its export barrier. If the same goods are brought in again the next day or the day after, they will bear the tax at the import barrier. No plea, I am sure, will be heard that these goods had paid the toll at the other end of Saharanpur Municipality and were within the municipal limits all the time. The import barrier will be treated a toll barrier even for these goods. 18. In this view of the matter I am of opinion that the appeal must be allowed with costs and I would order accordingly. Order: 19. | 0[ds]The drafting of R. 8(a) is not very happy and the difficulty has arisen because the export barrier in the present case is well within municipal limits. But it seems to us clear that what R. 8 (a) intends, when it says that on a declaration that the goods are meant "for immediate export from such limits without sorting and change of bulk", a transit pass would be granted is that the goods would be taken out of municipal limits as soon as possible after entry. What the latter part provides is the method of checking that the goods are taken out immediately from municipal limits. When, however, the goods are not taken out immediately from municipal limits and may lie at the railway station which is within the municipal limits for a length of time, the benefit of transit pass under R. 8 (a) cannot be allowed. We agree with the High Court that the intention of the rule is that motor lorries to which the rule applies after entering municipal limits are to pass out of the same with the least possible delay, and before a person can claim the benefit of the rule it is necessary to satisfy the condition that the lorry reached the export barrier within the time limited by the rule. The intention of the rule obviously is that lorry which enter the municipal limit at one end and gets a transit pass should go out of the municipal area as soon as possible with the goods in the same condition in which they were when the lorry entered the municipal area, and half an hours period provided in the latter part of the rule is merely for the purpose of checking at the export barrier that this is actually done. Where, as in the present case, lorries were never meant to proceed beyond the railway station, and the railway station was within the municipal area, there could be no question of grant of transit passes to such lorries. As we have said already the crucial words in R. 8 (a) are "for immediate export from such limits without sorting and change of bulk" and these mean that the goods must go out of the municipal limits as soon as possible on the lorry on which they have entered and unless that is done the lorry would not be entitled to a transit pass. The latter part of the rule is merely a method for checking that this has happened. | 0 | 4,107 | 454 | ### 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:
13. The Mills feeling aggrieved filed a petition under Art. 226 of the Constitution in the High Court of Allahabad for a writ to restrain the Municipality from withholding the refund. The pitetion was dismissed by Mr. Justice Mehrotra on February 12, 1957 and a special appeal under the Letters Patent was also dismissed by Mootham, C. J. and A. P. Srivastava, J. on September 10, 1960. This appeal is filed by the Mills on a certificate granted by the High Court. 14. My learned brother Wanchoo has affirmed the decisions in the High Court. In my opinion, and I say it respectfully, the contention of the Mills is well-founded. The intention of the rule undoubtedly is to free goods in transit from tolls on proof that they have been exported from the municipal limits as required by R. 8 (a), the question is: what does R. 8(a) require a person to and what can the Mills do in the Present circumstances? Rule 8 (a) analysed shows that the person incharge of a truck laden with taxable goods has to declare in writing to the moharrir at the import barrier that the goods which are being imported are meant for immediate export from such limits without sorting and change of bulk. This declaration is made by the persons incharge of the trucks belonging to the Mills. The moharrir to whom such declaration is made, then issues a transit pass in Form 61 of the M. A. C. and the person to whom it is issued has to present it together with the truck carrying the goods covered by transit pass to the moharrir at the barrier of export within half an hour from the time of issue of the transit pass. This is also complied with by the person incharge of the trucks belonging to the Mills. The goods then pass the export barrier and without sorting and change of bulk. The goods are next unloaded on the railway premises and the tracts return empty. No doubt some time passes before the goods are booked and some more time passes before they are loaded on trains and they do lie within the municipal limits, but as goods which have passed the export barrier and which cannot enter the municipal limits again without passing through an import barrier, they should merit a release from tolls. This is the result of the fact that the Municipality has established its barrier convenient to itself so as to segregate the railway yard from the town proper. It is to be remembered that person coming to the railway station and passing through without entering the municipal barrier are not required to pay toll even though they technically enter the municipal limits. This is because the railway yard is not considered as the area where the Municipality chooses to impose its taxes. The Municipality imposes its taxes only when there is entry into the town from the railway yard. The same thing obtains when goods are exported through the export barrier and enter the railway yard. In so far as the Municipality is concerned it satisfied itself that the goods have passed out of the municipal area and are not likely to re-enter without paying toll. The rule must be applied in a fair and equitable manner and one of the cardinal principles of law is that law does not expect, nor does it compel, a man to do that which he cannot possibly perform. The goods may not be for "immediate" export but they are meant for export and are in fact exported. The word "immediately" must be, in the circumstances understood as allowing a reasonable time for export 15. See Maxwell on the Interpretation of Statutes (Eleventh Edition), p. 341, where the following passage occurs :-"When a statute requires that some thing shall be done "forthwith", or "immediately" or even "instantly", it would probably be understood as allowing a reasonable time for doing it ....". The Mills cannot take the goods out of the municipal area on their own when they have passed through an export barrier into the railway yard. Having done everything that can possibly be done the law does not compel them to do more. 16. I may mention here that in the Central India Spinning and Weaving and Manufacturing Co. Ltd., The Empress Mills, Nagpur v. Municipal Committee, Wardha, AIR 1958 SC 841, this Court allowed refund in respect of goods entering a municipal barrier but passing out of the municipal limits in the same trucks, even though there was no provision for a declaration or a transit pass or an export barrier. It was pointed out what the words import and export meant in such a context. The word import, it was held, was not merely bringing into but something more, i.e., incorporating and mixing up of the goods imported with the mass of the property and export, it was also held, had reference to taking out of goods which had become part and parcel of the mass of the property in the local area. Goods in transit were, therefore, held to be neither imported nor exported. It was on this ground that goods which are on trains in municipal area were held neither to be imported nor exported. The present case is even stronger. 17. In my judgment, the Municipality by its own arrangement, regards the station yard as being outside its export barrier. If the same goods are brought in again the next day or the day after, they will bear the tax at the import barrier. No plea, I am sure, will be heard that these goods had paid the toll at the other end of Saharanpur Municipality and were within the municipal limits all the time. The import barrier will be treated a toll barrier even for these goods. 18. In this view of the matter I am of opinion that the appeal must be allowed with costs and I would order accordingly. Order: 19.
### Response:
0
### Explanation:
The drafting of R. 8(a) is not very happy and the difficulty has arisen because the export barrier in the present case is well within municipal limits. But it seems to us clear that what R. 8 (a) intends, when it says that on a declaration that the goods are meant "for immediate export from such limits without sorting and change of bulk", a transit pass would be granted is that the goods would be taken out of municipal limits as soon as possible after entry. What the latter part provides is the method of checking that the goods are taken out immediately from municipal limits. When, however, the goods are not taken out immediately from municipal limits and may lie at the railway station which is within the municipal limits for a length of time, the benefit of transit pass under R. 8 (a) cannot be allowed. We agree with the High Court that the intention of the rule is that motor lorries to which the rule applies after entering municipal limits are to pass out of the same with the least possible delay, and before a person can claim the benefit of the rule it is necessary to satisfy the condition that the lorry reached the export barrier within the time limited by the rule. The intention of the rule obviously is that lorry which enter the municipal limit at one end and gets a transit pass should go out of the municipal area as soon as possible with the goods in the same condition in which they were when the lorry entered the municipal area, and half an hours period provided in the latter part of the rule is merely for the purpose of checking at the export barrier that this is actually done. Where, as in the present case, lorries were never meant to proceed beyond the railway station, and the railway station was within the municipal area, there could be no question of grant of transit passes to such lorries. As we have said already the crucial words in R. 8 (a) are "for immediate export from such limits without sorting and change of bulk" and these mean that the goods must go out of the municipal limits as soon as possible on the lorry on which they have entered and unless that is done the lorry would not be entitled to a transit pass. The latter part of the rule is merely a method for checking that this has happened.
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Additional Income-Tax Officer, Cuddapah Vs. A. Thimmayyaand Others | the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him, or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory. Any error or irregularity in the assessment may be rectified in the manner provided by the statute alone, and the assessment is not liable to be challenged collaterally.10. In the present case claim was undoubtedly made at the time of making an assessment, that the property of the family was partitioned. The claim was not disposed of before making the assessment, and the Income-tax Officer proceeded to assess the income of the family as if the property of the family had not been partitioned. It is true that by order dated June 30, 1952 the Income-tax Officer held that the property of the family was partitioned on November 2, 1946. But the Act contains no machinery authorising an Income-tax Officer to re-open an assessment of a Hindu undivided family, relying upon an order made by him under S. 25-A(1) after the order of assessment is made. In the present case appeals were filed and it is common ground that no objection was raised as to the regularity or legality of the procedure followed by the Income-tax Officer. The assessment proceedings were taken to the Income-tax Appellate Tribunal and the orders of assessment were confirmed. Thereafter it was not open to the Income-tax Officer to re-open the orders of assessment, relying upon the order recording the partition, and to seek to subvert orders which had become final under the seal of the Income-tax Appellate Tribunal. The High Court was, in our judgment, in error in holding that an order of assessment which has become final is liable to be re-opened under S. 25-A(2) by the Income-tax Officer, when an order under Sec. 25-A(1) is passed by him subsequent to the order of assessment :11. But the appeals filed by the Income-tax Officer must still fail. Order recording the partition subsequent to the date on which the order of assessment was made must for reasons aforementioned be ignored and tax levied as if no such order was made. The effect of that step, however, is that in the absence of an order under S. 25-A(1) and the consequential proceedings under sub-section (2) liability to pay tax must rest upon the property of the Hindu undivided family: it cannot be enforced against the members of the family personally. The Income-tax Officer has sought by resorting to S. 46(5) to attach the remuneration earned by Thimmayya and Venkatanarsu as employee of Krishnappa Asbestos and Barytes (Private) Ltd. : this he was incompetent to do. So long as the assessment is made of income of the Hindu undivided family, liability to satisfy the tax must be restricted to the estate of the family: after an order of partition is recorded and assessment is made under sub-section (2) of S. 25-A but not till then, the proviso to that sub-section will operate.12. The Solicitor-General contended that the second paragraph of sub-section (2) which is in the form of a proviso, is in substance a substantive provision imposing joint and several liability for tax assessed on the total income received by or on behalf of the joint family against all members of the family. The contention is that by the proviso the Legislature intended that in respect of the income of a Hindu undivided family, once partition is effected, whether the partition is recorded or not under sub-section (1), all members of the family will be jointly and severally liable for the tax assessed on the total income received by or on behalf of the family. But however read the proviso yields no such meaning. The scheme of the section is that so long as there is an assessment of the Hindu undivided family, the liability for payment of the tax is on the property of the family and not personally on the members. Where an order that the property of the family has been partitioned is recorded, the liability of the members has to be apportioned in the manner set out in sub-section, but one of the incidents of assessment after apportionment of tax liability is that the members of the family stand jointly and severally liable for the entire amount of tax assessed against the family.13. In the present case no orders were recorded by the Income-tax Officer at the time of making assessments in respect of the five years, and therefore no personal liability of the members of the family arose under the proviso to sub-section (2). The Income-tax Officer does not seek to reach in the hands of Thimmayya and Venkatanarsu the property which was once the property of the Hindu undivided family : he seeks to reach the personal income of the two respondents. That the Income-tax Officer could do only if by virtue of the proviso to sub-section (2) a personal liability has arisen against them. In the absence of an order under sub-section (1), however, such a liability does not arise against the members of the Hindu undivided family, even if the family is disrupted.14. We are therefore of the view, but not for the reasons mentioned by the High Court, that because there has been before the orders of assessment no order recording that the property of the family has been partitioned among the members, the two respondents are not personally liable to satisfy tax due by the joint family. The remedy of the Income-tax authorities in the circumstances of the case, was to proceed against the property, if any, of the Hindu undivided family. That admittedly they have not done. | 0[ds]8. The scheme of S. 25-A is therefore clear : a Hindu undivided family hitherto assessed in respect of its income will continue to be assessed in that status notwithstanding partition of the property among its members. If a claim is raised at the time of making an assessment that a partition has been effected, the Income-tax Officer must make an inquiry after notice to all the members of the family and make an order that the family property has been partitioned in definite portions, if he is satisfied in that behalf. The Income-tax Officer is by law required still to make the assessment of the income of the Hindu undivided family, as if no partition had taken place and then to apportion the total tax liability and to add to the separate income of the members or groups of members the tax proportionate to the portion of the joint family property allotted to such members or groups of members and to make under S. 23 assessment on the members accordingly. If no claim for recording partition is made, or if a claim is made and it is disallowed or the claim is not considered by the Income-tax Officer, the assessment of the Hindu undivided family which has hitherto been assessed as undivided will continue to be made as if the Hindu undivided family has received the income and is liable to be assessed.9. Failure to make an order on the claim made does not affect the jurisdiction of the Income-tax Officer to make an assessment of the Hindu family which had hitherto been assessed as undivided. The Income-tax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him, or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory. Any error or irregularity in the assessment may be rectified in the manner provided by the statute alone, and the assessment is not liable to be challenged collaterally.10. In the present case claim was undoubtedly made at the time of making an assessment, that the property of the family was partitioned. The claim was not disposed of before making the assessment, and the Income-tax Officer proceeded to assess the income of the family as if the property of the family had not been partitioned. It is true that by order dated June 30, 1952 the Income-tax Officer held that the property of the family was partitioned on November 2, 1946. But the Act contains no machinery authorising an Income-tax Officer to re-open an assessment of a Hindu undivided family, relying upon an order made by him under S. 25-A(1) after the order of assessment is made. In the present case appeals were filed and it is common ground that no objection was raised as to the regularity or legality of the procedure followed by the Income-tax Officer. The assessment proceedings were taken to the Income-tax Appellate Tribunal and the orders of assessment were confirmed. Thereafter it was not open to the Income-tax Officer to re-open the orders of assessment, relying upon the order recording the partition, and to seek to subvert orders which had become final under the seal of the Income-tax Appellate Tribunal. The High Court was, in our judgment, in error in holding that an order of assessment which has become final is liable to be re-opened under S. 25-A(2) by the Income-tax Officer, when an order under Sec. 25-A(1) is passed by him subsequent to the order of assessment :11. But the appeals filed by the Income-tax Officer must still fail.In the present case no orders were recorded by the Income-tax Officer at the time of making assessments in respect of the five years, and therefore no personal liability of the members of the family arose under the proviso to sub-section (2). The Income-tax Officer does not seek to reach in the hands of Thimmayya and Venkatanarsu the property which was once the property of the Hindu undivided family : he seeks to reach the personal income of the two respondents. That the Income-tax Officer could do only if by virtue of the proviso to sub-section (2) a personal liability has arisen against them. In the absence of an order under sub-section (1), however, such a liability does not arise against the members of the Hindu undivided family, even if the family is disrupted.14. We are therefore of the view, but not for the reasons mentioned by the High Court, that because there has been before the orders of assessment no order recording that the property of the family has been partitioned among the members, the two respondents are not personally liable to satisfy tax due by the joint family. The remedy of the Income-tax authorities in the circumstances of the case, was to proceed against the property, if any, of the Hindu undivided family. That admittedly they have not done. | 0 | 3,321 | 951 | ### Instruction:
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the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him, or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory. Any error or irregularity in the assessment may be rectified in the manner provided by the statute alone, and the assessment is not liable to be challenged collaterally.10. In the present case claim was undoubtedly made at the time of making an assessment, that the property of the family was partitioned. The claim was not disposed of before making the assessment, and the Income-tax Officer proceeded to assess the income of the family as if the property of the family had not been partitioned. It is true that by order dated June 30, 1952 the Income-tax Officer held that the property of the family was partitioned on November 2, 1946. But the Act contains no machinery authorising an Income-tax Officer to re-open an assessment of a Hindu undivided family, relying upon an order made by him under S. 25-A(1) after the order of assessment is made. In the present case appeals were filed and it is common ground that no objection was raised as to the regularity or legality of the procedure followed by the Income-tax Officer. The assessment proceedings were taken to the Income-tax Appellate Tribunal and the orders of assessment were confirmed. Thereafter it was not open to the Income-tax Officer to re-open the orders of assessment, relying upon the order recording the partition, and to seek to subvert orders which had become final under the seal of the Income-tax Appellate Tribunal. The High Court was, in our judgment, in error in holding that an order of assessment which has become final is liable to be re-opened under S. 25-A(2) by the Income-tax Officer, when an order under Sec. 25-A(1) is passed by him subsequent to the order of assessment :11. But the appeals filed by the Income-tax Officer must still fail. Order recording the partition subsequent to the date on which the order of assessment was made must for reasons aforementioned be ignored and tax levied as if no such order was made. The effect of that step, however, is that in the absence of an order under S. 25-A(1) and the consequential proceedings under sub-section (2) liability to pay tax must rest upon the property of the Hindu undivided family: it cannot be enforced against the members of the family personally. The Income-tax Officer has sought by resorting to S. 46(5) to attach the remuneration earned by Thimmayya and Venkatanarsu as employee of Krishnappa Asbestos and Barytes (Private) Ltd. : this he was incompetent to do. So long as the assessment is made of income of the Hindu undivided family, liability to satisfy the tax must be restricted to the estate of the family: after an order of partition is recorded and assessment is made under sub-section (2) of S. 25-A but not till then, the proviso to that sub-section will operate.12. The Solicitor-General contended that the second paragraph of sub-section (2) which is in the form of a proviso, is in substance a substantive provision imposing joint and several liability for tax assessed on the total income received by or on behalf of the joint family against all members of the family. The contention is that by the proviso the Legislature intended that in respect of the income of a Hindu undivided family, once partition is effected, whether the partition is recorded or not under sub-section (1), all members of the family will be jointly and severally liable for the tax assessed on the total income received by or on behalf of the family. But however read the proviso yields no such meaning. The scheme of the section is that so long as there is an assessment of the Hindu undivided family, the liability for payment of the tax is on the property of the family and not personally on the members. Where an order that the property of the family has been partitioned is recorded, the liability of the members has to be apportioned in the manner set out in sub-section, but one of the incidents of assessment after apportionment of tax liability is that the members of the family stand jointly and severally liable for the entire amount of tax assessed against the family.13. In the present case no orders were recorded by the Income-tax Officer at the time of making assessments in respect of the five years, and therefore no personal liability of the members of the family arose under the proviso to sub-section (2). The Income-tax Officer does not seek to reach in the hands of Thimmayya and Venkatanarsu the property which was once the property of the Hindu undivided family : he seeks to reach the personal income of the two respondents. That the Income-tax Officer could do only if by virtue of the proviso to sub-section (2) a personal liability has arisen against them. In the absence of an order under sub-section (1), however, such a liability does not arise against the members of the Hindu undivided family, even if the family is disrupted.14. We are therefore of the view, but not for the reasons mentioned by the High Court, that because there has been before the orders of assessment no order recording that the property of the family has been partitioned among the members, the two respondents are not personally liable to satisfy tax due by the joint family. The remedy of the Income-tax authorities in the circumstances of the case, was to proceed against the property, if any, of the Hindu undivided family. That admittedly they have not done.
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8. The scheme of S. 25-A is therefore clear : a Hindu undivided family hitherto assessed in respect of its income will continue to be assessed in that status notwithstanding partition of the property among its members. If a claim is raised at the time of making an assessment that a partition has been effected, the Income-tax Officer must make an inquiry after notice to all the members of the family and make an order that the family property has been partitioned in definite portions, if he is satisfied in that behalf. The Income-tax Officer is by law required still to make the assessment of the income of the Hindu undivided family, as if no partition had taken place and then to apportion the total tax liability and to add to the separate income of the members or groups of members the tax proportionate to the portion of the joint family property allotted to such members or groups of members and to make under S. 23 assessment on the members accordingly. If no claim for recording partition is made, or if a claim is made and it is disallowed or the claim is not considered by the Income-tax Officer, the assessment of the Hindu undivided family which has hitherto been assessed as undivided will continue to be made as if the Hindu undivided family has received the income and is liable to be assessed.9. Failure to make an order on the claim made does not affect the jurisdiction of the Income-tax Officer to make an assessment of the Hindu family which had hitherto been assessed as undivided. The Income-tax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstanding partition, if no claim in that behalf has been made to him, or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided remains unaffected, for the procedure for making assessment of tax is statutory. Any error or irregularity in the assessment may be rectified in the manner provided by the statute alone, and the assessment is not liable to be challenged collaterally.10. In the present case claim was undoubtedly made at the time of making an assessment, that the property of the family was partitioned. The claim was not disposed of before making the assessment, and the Income-tax Officer proceeded to assess the income of the family as if the property of the family had not been partitioned. It is true that by order dated June 30, 1952 the Income-tax Officer held that the property of the family was partitioned on November 2, 1946. But the Act contains no machinery authorising an Income-tax Officer to re-open an assessment of a Hindu undivided family, relying upon an order made by him under S. 25-A(1) after the order of assessment is made. In the present case appeals were filed and it is common ground that no objection was raised as to the regularity or legality of the procedure followed by the Income-tax Officer. The assessment proceedings were taken to the Income-tax Appellate Tribunal and the orders of assessment were confirmed. Thereafter it was not open to the Income-tax Officer to re-open the orders of assessment, relying upon the order recording the partition, and to seek to subvert orders which had become final under the seal of the Income-tax Appellate Tribunal. The High Court was, in our judgment, in error in holding that an order of assessment which has become final is liable to be re-opened under S. 25-A(2) by the Income-tax Officer, when an order under Sec. 25-A(1) is passed by him subsequent to the order of assessment :11. But the appeals filed by the Income-tax Officer must still fail.In the present case no orders were recorded by the Income-tax Officer at the time of making assessments in respect of the five years, and therefore no personal liability of the members of the family arose under the proviso to sub-section (2). The Income-tax Officer does not seek to reach in the hands of Thimmayya and Venkatanarsu the property which was once the property of the Hindu undivided family : he seeks to reach the personal income of the two respondents. That the Income-tax Officer could do only if by virtue of the proviso to sub-section (2) a personal liability has arisen against them. In the absence of an order under sub-section (1), however, such a liability does not arise against the members of the Hindu undivided family, even if the family is disrupted.14. We are therefore of the view, but not for the reasons mentioned by the High Court, that because there has been before the orders of assessment no order recording that the property of the family has been partitioned among the members, the two respondents are not personally liable to satisfy tax due by the joint family. The remedy of the Income-tax authorities in the circumstances of the case, was to proceed against the property, if any, of the Hindu undivided family. That admittedly they have not done.
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His Holiness Sri Vishwothama Thirtha Swamiar Ofsode Mutt Vs. The State Of Mysore | dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family."It follows, therefore, that in the absence of good evidence that a temple is a private one, the mere fact that it is visited by a large number of persons among the Hindu public without any restraint for a number of years, will be good evidence of the fact that the temple had been dedicated to the Hindu public and was for its benefit.21. Reference may usefully be made to the case reported as Venkataramana Devaru v. State of Mysore, 1958 SCR 895 : (AIR 1958 SC 255 ). In this case, a temple was founded for the benefit of Gowda Saraswath Brahmins, who managed it throughout. They were the followers of the Kashi Mutt. The head of that Mutt performed various religious ceremonies in the temple. It was alleged that persons who were not Gowda Saraswath Brahmins could not enter without the permission of the trustees. However, there was no instance in which such permission was refused. There was evidence that all communities had been freely admitted into the temple. It was contended that the free admission of all communities and there being no instance of any refusal of permission, led to the conclusion that the Hindu public generally had a right to worship in the temple. In considering this contention, it was said at page 907 (of SCR): (at pp. 263-264 of AIR):The law on the subject is well settled. When there is a question as to the nature and extent of a dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible; and proof of long and uninterrupted user would be cogent evidence of the terms thereof. Where, therefore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well. For, as observed in 67 Ind App 1: (AIR 1940 PC 7 ), it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away."There is no documentary evidence in this case for supporting the contention of the appellants that the temple was originally founded for the private use of Shri Madvacharya and his disciples. In the absence of such evidence, the long user of the temple by the Hindus in general, together with there being no instance of anybody having been refused permission, must lead to the conclusion and support the finding that the temple had been dedicated to the Hindus in general, and was for their benefit.22. Further, there is no evidence on record, oral or documentary, of course oral was not possible, of the fact that Shri Madvacharya had a Mutt of his own prior to his obtaining the idol of Shir Krishna which he installed in this temple. He is said to have set up eight different Mutts, each for one of his eight disciples. All these eight Mutts have particular names. No Mutt is named after Shri Madvacharya. Ramawami, J., has given good reasons for the view that Shri Madvacharya had no Mutt of his own.A primary Mutt associated with the founder himself must have an independent permanent head. There is no such Matathipathi or head of this so-called Mutt. One of the eight Swamis, the heads of the Asth Mutts, acts as head or manager of this institution for a period of two years. The absence of a head and this system of a head or manager being appointed by rotation, very clearly point to the conclusion that the institution in suit is neither a Mutt nor a temple appurtenant to a Mutt.23. In 1937, the Board of Commissioners for the Hindu Religious Endowments, Madras, passed an order under S. 84 of the Madras Hindu Religious Endowments Act, 1926 (Act II of 1927), that this institution was not a temple as defined in that Act, but was a place of worship appurtenant to Shri Krishna Devaru Math, Shivalli Udipi Taluk, South Kanara District. It has been urged for the appellant that this order bars any further enquiry and a different conclusion under the Act with respect to the nature of this institution. The Courts below have held against this contention and, we think, rightly. The finding of the Board was, in their own words:"Our decision that the institution is appurtenant to a math and forms part of it can in no wise affect the rights of the deity to the properties owned by it and the rights of the Hindu public to worship direct, subject to the regulations prescribed by the Paryayam Swamiar for the time being. We hold that it is not a temple as defined in the Act, but it is a place of worship appurtenant to the Math."The finding that the Hindu public had a right to worship in this temple is sufficient to make the institution a temple within the definition of that term in the Act (Madras Act V of 1947), even if the temple be appurtenant to a Mutt. The Boards order, therefore, cannot affect the consideration of the question of the institution being a temple within the meaning of the definition in the Act. | 1[ds]15. We agree with the view of the learned Judges of the High Court that the shrine in suit is a temple as defined in S. 2 (1) of the Act.16. The evidence on record is fully consistent with the findings of the Courts below that this temple is a place dedicated to the Hindu public and is used by them as a place of public religious worship. It is not disputed that a large number of pilgrims from all over the country visit this place, take part in the worship there, make offerings to the deity and receive the prasad. The institution also receives monetary aid from the State.It is clear from this extract that the various Swamis tour about the country realising contributions from the devotees for the expenses which each of them has to incur during the period of his pariyayam, that the expenses which he has to incur during the period are heavy. The expenses are met out of the income during the two years of his Pariyayam from the State aid and the offering of pilgrims and income of his own Mutt. The fact of raising contributions from the devotees resident in different parts of the country is clear proof of the fact that such devotees have a right to visit the temple and to worship there. If they have no such right, it is improbable that they would be visited by the Swamis for contributions.19. The fact that no instance of any pilgrim being refused permission to worship during the course of the centuries since the installation of the deity goes a long way in establishing and supporting the finding of the Court below that the institution has been held out as one for the benefit of the Hindu and that the Hindus in general have gone to it for worship in exercise of their right of worship and not on account of the permission, express or implied, of the Pariyayam Swami.20. It is true that the fact that a number of pilgrim visit the temple for worship regularly need not, in all cases, lead to the conclusion that the temple is a public one; but such a conclusion will not be arrived at only when there is good evidence about the temple being a privatefollows, therefore, that in the absence of good evidence that a temple is a private one, the mere fact that it is visited by a large number of persons among the Hindu public without any restraint for a number of years, will be good evidence of the fact that the temple had been dedicated to the Hindu public and was for itsis no documentary evidence in this case for supporting the contention of the appellants that the temple was originally founded for the private use of Shri Madvacharya and his disciples. In the absence of such evidence, the long user of the temple by the Hindus in general, together with there being no instance of anybody having been refused permission, must lead to the conclusion and support the finding that the temple had been dedicated to the Hindus in general, and was for their benefit.22. Further, there is no evidence on record, oral or documentary, of course oral was not possible, of the fact that Shri Madvacharya had a Mutt of his own prior to his obtaining the idol of Shir Krishna which he installed in this temple. He is said to have set up eight different Mutts, each for one of his eight disciples. All these eight Mutts have particular names. No Mutt is named after Shri Madvacharya. Ramawami, J., has given good reasons for the view that Shri Madvacharya had no Mutt of his own.A primary Mutt associated with the founder himself must have an independent permanent head. There is no such Matathipathi or head of this so-called Mutt. One of the eight Swamis, the heads of the Asth Mutts, acts as head or manager of this institution for a period of two years. The absence of a head and this system of a head or manager being appointed by rotation, very clearly point to the conclusion that the institution in suit is neither a Mutt nor a temple appurtenant to aCourts below have held against this contention and, we think,finding that the Hindu public had a right to worship in this temple is sufficient to make the institution a temple within the definition of that term in the Act (Madras Act V of 1947), even if the temple be appurtenant to a Mutt. The Boards order, therefore, cannot affect the consideration of the question of the institution being a temple within the meaning of the definition in the Act. | 1 | 4,279 | 845 | ### Instruction:
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dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present; and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family."It follows, therefore, that in the absence of good evidence that a temple is a private one, the mere fact that it is visited by a large number of persons among the Hindu public without any restraint for a number of years, will be good evidence of the fact that the temple had been dedicated to the Hindu public and was for its benefit.21. Reference may usefully be made to the case reported as Venkataramana Devaru v. State of Mysore, 1958 SCR 895 : (AIR 1958 SC 255 ). In this case, a temple was founded for the benefit of Gowda Saraswath Brahmins, who managed it throughout. They were the followers of the Kashi Mutt. The head of that Mutt performed various religious ceremonies in the temple. It was alleged that persons who were not Gowda Saraswath Brahmins could not enter without the permission of the trustees. However, there was no instance in which such permission was refused. There was evidence that all communities had been freely admitted into the temple. It was contended that the free admission of all communities and there being no instance of any refusal of permission, led to the conclusion that the Hindu public generally had a right to worship in the temple. In considering this contention, it was said at page 907 (of SCR): (at pp. 263-264 of AIR):The law on the subject is well settled. When there is a question as to the nature and extent of a dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible; and proof of long and uninterrupted user would be cogent evidence of the terms thereof. Where, therefore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well. For, as observed in 67 Ind App 1: (AIR 1940 PC 7 ), it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away."There is no documentary evidence in this case for supporting the contention of the appellants that the temple was originally founded for the private use of Shri Madvacharya and his disciples. In the absence of such evidence, the long user of the temple by the Hindus in general, together with there being no instance of anybody having been refused permission, must lead to the conclusion and support the finding that the temple had been dedicated to the Hindus in general, and was for their benefit.22. Further, there is no evidence on record, oral or documentary, of course oral was not possible, of the fact that Shri Madvacharya had a Mutt of his own prior to his obtaining the idol of Shir Krishna which he installed in this temple. He is said to have set up eight different Mutts, each for one of his eight disciples. All these eight Mutts have particular names. No Mutt is named after Shri Madvacharya. Ramawami, J., has given good reasons for the view that Shri Madvacharya had no Mutt of his own.A primary Mutt associated with the founder himself must have an independent permanent head. There is no such Matathipathi or head of this so-called Mutt. One of the eight Swamis, the heads of the Asth Mutts, acts as head or manager of this institution for a period of two years. The absence of a head and this system of a head or manager being appointed by rotation, very clearly point to the conclusion that the institution in suit is neither a Mutt nor a temple appurtenant to a Mutt.23. In 1937, the Board of Commissioners for the Hindu Religious Endowments, Madras, passed an order under S. 84 of the Madras Hindu Religious Endowments Act, 1926 (Act II of 1927), that this institution was not a temple as defined in that Act, but was a place of worship appurtenant to Shri Krishna Devaru Math, Shivalli Udipi Taluk, South Kanara District. It has been urged for the appellant that this order bars any further enquiry and a different conclusion under the Act with respect to the nature of this institution. The Courts below have held against this contention and, we think, rightly. The finding of the Board was, in their own words:"Our decision that the institution is appurtenant to a math and forms part of it can in no wise affect the rights of the deity to the properties owned by it and the rights of the Hindu public to worship direct, subject to the regulations prescribed by the Paryayam Swamiar for the time being. We hold that it is not a temple as defined in the Act, but it is a place of worship appurtenant to the Math."The finding that the Hindu public had a right to worship in this temple is sufficient to make the institution a temple within the definition of that term in the Act (Madras Act V of 1947), even if the temple be appurtenant to a Mutt. The Boards order, therefore, cannot affect the consideration of the question of the institution being a temple within the meaning of the definition in the Act.
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15. We agree with the view of the learned Judges of the High Court that the shrine in suit is a temple as defined in S. 2 (1) of the Act.16. The evidence on record is fully consistent with the findings of the Courts below that this temple is a place dedicated to the Hindu public and is used by them as a place of public religious worship. It is not disputed that a large number of pilgrims from all over the country visit this place, take part in the worship there, make offerings to the deity and receive the prasad. The institution also receives monetary aid from the State.It is clear from this extract that the various Swamis tour about the country realising contributions from the devotees for the expenses which each of them has to incur during the period of his pariyayam, that the expenses which he has to incur during the period are heavy. The expenses are met out of the income during the two years of his Pariyayam from the State aid and the offering of pilgrims and income of his own Mutt. The fact of raising contributions from the devotees resident in different parts of the country is clear proof of the fact that such devotees have a right to visit the temple and to worship there. If they have no such right, it is improbable that they would be visited by the Swamis for contributions.19. The fact that no instance of any pilgrim being refused permission to worship during the course of the centuries since the installation of the deity goes a long way in establishing and supporting the finding of the Court below that the institution has been held out as one for the benefit of the Hindu and that the Hindus in general have gone to it for worship in exercise of their right of worship and not on account of the permission, express or implied, of the Pariyayam Swami.20. It is true that the fact that a number of pilgrim visit the temple for worship regularly need not, in all cases, lead to the conclusion that the temple is a public one; but such a conclusion will not be arrived at only when there is good evidence about the temple being a privatefollows, therefore, that in the absence of good evidence that a temple is a private one, the mere fact that it is visited by a large number of persons among the Hindu public without any restraint for a number of years, will be good evidence of the fact that the temple had been dedicated to the Hindu public and was for itsis no documentary evidence in this case for supporting the contention of the appellants that the temple was originally founded for the private use of Shri Madvacharya and his disciples. In the absence of such evidence, the long user of the temple by the Hindus in general, together with there being no instance of anybody having been refused permission, must lead to the conclusion and support the finding that the temple had been dedicated to the Hindus in general, and was for their benefit.22. Further, there is no evidence on record, oral or documentary, of course oral was not possible, of the fact that Shri Madvacharya had a Mutt of his own prior to his obtaining the idol of Shir Krishna which he installed in this temple. He is said to have set up eight different Mutts, each for one of his eight disciples. All these eight Mutts have particular names. No Mutt is named after Shri Madvacharya. Ramawami, J., has given good reasons for the view that Shri Madvacharya had no Mutt of his own.A primary Mutt associated with the founder himself must have an independent permanent head. There is no such Matathipathi or head of this so-called Mutt. One of the eight Swamis, the heads of the Asth Mutts, acts as head or manager of this institution for a period of two years. The absence of a head and this system of a head or manager being appointed by rotation, very clearly point to the conclusion that the institution in suit is neither a Mutt nor a temple appurtenant to aCourts below have held against this contention and, we think,finding that the Hindu public had a right to worship in this temple is sufficient to make the institution a temple within the definition of that term in the Act (Madras Act V of 1947), even if the temple be appurtenant to a Mutt. The Boards order, therefore, cannot affect the consideration of the question of the institution being a temple within the meaning of the definition in the Act.
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Ram Jivan Vs. Smt. Phoola (Dead) By Lrs. and Others | by the landlord under certain circumstances. But section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceased tenant-(1) the right to retain occupation of the holding on the rent payable; and (2) to receive compensation for the improvements made. In these circumstances, therefore, it cannot be said that the occupation of the lands by Smt. Menda on her husbands death was purely in her individual or independent capacity or that the possession of the lands amounted to her self-acquired property. Section 174 of the Abolition Act would naturally apply only to such cases where` a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, namely, an interest which she possessed in the holding as her self- acquired property, her stridden or the like. That is why s. 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding. Thus the language used in ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the to sections are to apply. The Revenue Courts have also held as a fact that initially Smt. Menda had inherited the property from her husband but they have construed the conferment of the various kinds of status on Smt. Menda after she had already invented the property as amounting to her self-acquired property. It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words "inherited an interest in any holding" as mentioned in s. 172 of the Abolition Act.Section 172-A of the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear, by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow, it would be deemed to be an accession to the holding of the last male holder thereof. We are, however, not at all concerned with 8. 172-A of the Abolition Act, because Smt. Menda had died two years before the amendment came into force and the question of succession to her estate would be governed by s. 17 or s. 174 of the Abolition Act.8. In the Division Bench decision in Mst. Jainis case (supra) the Allahabad High Court had taken the same view. Malik, C.J., speaking for the Court observed thus:"Section 36 does not require that the tenancy as such should have been inherited by the widow. All that it provides is that the widow should have inherited an interest in the holding. The mere fact that she had to remain in possession for a further period of eight years before she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a widow. We fail to see how it could be said, in view of the language of s. 36, that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of Bhau. Section 36 was thus clearly applicable."The Division Bench also relied in the aforesaid case on an earlier unreported decision of a Single Judge of that Court in Sital v. Suraj Din (Second Appeal No.421 of 1943 decided o n 20-12-48.) where exactly the same view was taken as the one we have taken in the instant ca se. The observations of the learned Single Judge have been quoted by the Division Bench in the case referred to above thus:"We can assume that she acquired on the passing of the new Act (Act 4 of 1921) a fresh statutory period and a renewal of the tenancy but that does not take away the origin of her title...... It is only when a female tenant acquires tenancy rights which do not have their origin in inheritance that the case could be taken out of the ` amble of s. 36 to be governed by s. 37."9. It would be seen that in this case the husband of the appellant had died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen an d if the tenancy rights had their origin in inheritance then ss. 36 &37 would rot apply.10. For these reasons, therefore, we are satisfied that the origin of the title of Smt. Menda lay in inheritance of the estate of her husband however limited o r precarious it may have been. This being the position, the succession to the estate of Smt. Menda would have to be governed by the provisions of s. 172 of the Abolition Act which has applied the provisions of s. 171 regarding the order of succession. In the order of succession given in s. 171 of the Abolition Act brothers son is a preferential heir. It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter was also introduced as an heir before brothers son. But this was not the position prior to 1954 when the married daughter was completely excluded from inheritance. It is also not disputed that Smt. Phoola was a married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhins brothers son, namely, Jit and thereafter on his heir who is now continuing the present proceedings. Thus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt. Phoola. the Revenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by s. 174 of the Abolition Act as the interest left by Smt. Menda was her self-acquired property. Th | 1[ds]The expressions "heir of a tenant" and "shall be entitled to retain occupation" clearly postulate that the right to retain the occupation of the lands in dispute is given only to the heirs of the deceased tenant A which clearly indicates that the person who retains occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act. In the instant case since Smt. Menda continued to retain occupation of the lands on the death of her husband, she did so only as the heir of her husband and not otherwise, for if that was not to then she could not have been entitled to retain occupation. The word entitled" clearly signifies that the occupant must have some right, however precarious or limited it may be. In these circumstances, therefore, there can be no doubt that Smt. Mendas occupation of the tenancy on the death of Ramadhin was by way of inheritance only. There was no other method by which she could have a right or claim to retain occupation of the holding. It is true that the interest of Smt. Menda was a very limited one and she could have been ejected by the landlord under certain circumstances. But section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceasedthe right to retain occupation of the holding on the rent payable; and (2) to receive compensation for the improvements made. In these circumstances, therefore, it cannot be said that the occupation of the lands by Smt. Menda on her husbands death was purely in her individual or independent capacity or that the possession of the lands amounted to herproperty. Section 174 of the Abolition Act would naturally apply only to such cases where` a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, namely, an interest which she possessed in the holding as her selfacquired property, her stridden or the like. That is why s. 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding. Thus the language used in ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the to sections are to apply. The Revenue Courts have also held as a fact that initially Smt. Menda had inherited the property from her husband but they have construed the conferment of the various kinds of status on Smt. Menda after she had already invented the property as amounting to herproperty. It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words "inherited an interest in any holding" as mentioned in s. 172 of the Abolition Act.Sectionof the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear, by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow, it would be deemed to be an accession to the holding of the last male holder thereof. We are, however, not at all concerned with 8.of the Abolition Act, becausehad died two years before the amendment came into force and the question of succession to her estate would be governed by s. 17 or s. 174 of the Abolitionwould be seen that in this case the husband of the appellant had died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen an d if the tenancy rights had their origin in inheritance then ss. 36 &37 would rotthese reasons, therefore, we are satisfied that the origin of the title of Smt. Menda lay in inheritance of the estate of her husband however limited o r precarious it may have been. This being the position, the succession to the estate of Smt. Menda would have to be governed by the provisions of s. 172 of the Abolition Act which has applied the provisions of s. 171 regarding the order of succession. In the order of succession given in s. 171 of the Abolition Act brothers son is a preferential heir. It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter was also introduced as an heir before brothers son. But this was not the position prior to 1954 when the married daughter was completely excluded from inheritance. It is also not disputed that Smt. Phoola was a married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhins brothers son, namely, Jit and thereafter on his heir who is now continuing the present proceedings. Thus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt. Phoola. the Revenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by s. 174 of the Abolition Act as the interest left by Smt. Menda was herproperty. The result is that the appeal is allowed, the judgment of the Division Bench is set aside and that of the learned Single Judge is hereby restored. In the peculiar circumstances of this case, and particularly having regard to the fact that the respondents have not appeared to contest the appeal before this Court, we make no order as to costs in this Court. | 1 | 6,365 | 1,023 | ### 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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by the landlord under certain circumstances. But section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceased tenant-(1) the right to retain occupation of the holding on the rent payable; and (2) to receive compensation for the improvements made. In these circumstances, therefore, it cannot be said that the occupation of the lands by Smt. Menda on her husbands death was purely in her individual or independent capacity or that the possession of the lands amounted to her self-acquired property. Section 174 of the Abolition Act would naturally apply only to such cases where` a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, namely, an interest which she possessed in the holding as her self- acquired property, her stridden or the like. That is why s. 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding. Thus the language used in ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the to sections are to apply. The Revenue Courts have also held as a fact that initially Smt. Menda had inherited the property from her husband but they have construed the conferment of the various kinds of status on Smt. Menda after she had already invented the property as amounting to her self-acquired property. It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words "inherited an interest in any holding" as mentioned in s. 172 of the Abolition Act.Section 172-A of the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear, by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow, it would be deemed to be an accession to the holding of the last male holder thereof. We are, however, not at all concerned with 8. 172-A of the Abolition Act, because Smt. Menda had died two years before the amendment came into force and the question of succession to her estate would be governed by s. 17 or s. 174 of the Abolition Act.8. In the Division Bench decision in Mst. Jainis case (supra) the Allahabad High Court had taken the same view. Malik, C.J., speaking for the Court observed thus:"Section 36 does not require that the tenancy as such should have been inherited by the widow. All that it provides is that the widow should have inherited an interest in the holding. The mere fact that she had to remain in possession for a further period of eight years before she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a widow. We fail to see how it could be said, in view of the language of s. 36, that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of Bhau. Section 36 was thus clearly applicable."The Division Bench also relied in the aforesaid case on an earlier unreported decision of a Single Judge of that Court in Sital v. Suraj Din (Second Appeal No.421 of 1943 decided o n 20-12-48.) where exactly the same view was taken as the one we have taken in the instant ca se. The observations of the learned Single Judge have been quoted by the Division Bench in the case referred to above thus:"We can assume that she acquired on the passing of the new Act (Act 4 of 1921) a fresh statutory period and a renewal of the tenancy but that does not take away the origin of her title...... It is only when a female tenant acquires tenancy rights which do not have their origin in inheritance that the case could be taken out of the ` amble of s. 36 to be governed by s. 37."9. It would be seen that in this case the husband of the appellant had died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen an d if the tenancy rights had their origin in inheritance then ss. 36 &37 would rot apply.10. For these reasons, therefore, we are satisfied that the origin of the title of Smt. Menda lay in inheritance of the estate of her husband however limited o r precarious it may have been. This being the position, the succession to the estate of Smt. Menda would have to be governed by the provisions of s. 172 of the Abolition Act which has applied the provisions of s. 171 regarding the order of succession. In the order of succession given in s. 171 of the Abolition Act brothers son is a preferential heir. It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter was also introduced as an heir before brothers son. But this was not the position prior to 1954 when the married daughter was completely excluded from inheritance. It is also not disputed that Smt. Phoola was a married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhins brothers son, namely, Jit and thereafter on his heir who is now continuing the present proceedings. Thus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt. Phoola. the Revenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by s. 174 of the Abolition Act as the interest left by Smt. Menda was her self-acquired property. Th
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The expressions "heir of a tenant" and "shall be entitled to retain occupation" clearly postulate that the right to retain the occupation of the lands in dispute is given only to the heirs of the deceased tenant A which clearly indicates that the person who retains occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act. In the instant case since Smt. Menda continued to retain occupation of the lands on the death of her husband, she did so only as the heir of her husband and not otherwise, for if that was not to then she could not have been entitled to retain occupation. The word entitled" clearly signifies that the occupant must have some right, however precarious or limited it may be. In these circumstances, therefore, there can be no doubt that Smt. Mendas occupation of the tenancy on the death of Ramadhin was by way of inheritance only. There was no other method by which she could have a right or claim to retain occupation of the holding. It is true that the interest of Smt. Menda was a very limited one and she could have been ejected by the landlord under certain circumstances. But section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceasedthe right to retain occupation of the holding on the rent payable; and (2) to receive compensation for the improvements made. In these circumstances, therefore, it cannot be said that the occupation of the lands by Smt. Menda on her husbands death was purely in her individual or independent capacity or that the possession of the lands amounted to herproperty. Section 174 of the Abolition Act would naturally apply only to such cases where` a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, namely, an interest which she possessed in the holding as her selfacquired property, her stridden or the like. That is why s. 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding. Thus the language used in ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the to sections are to apply. The Revenue Courts have also held as a fact that initially Smt. Menda had inherited the property from her husband but they have construed the conferment of the various kinds of status on Smt. Menda after she had already invented the property as amounting to herproperty. It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words "inherited an interest in any holding" as mentioned in s. 172 of the Abolition Act.Sectionof the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear, by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow, it would be deemed to be an accession to the holding of the last male holder thereof. We are, however, not at all concerned with 8.of the Abolition Act, becausehad died two years before the amendment came into force and the question of succession to her estate would be governed by s. 17 or s. 174 of the Abolitionwould be seen that in this case the husband of the appellant had died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen an d if the tenancy rights had their origin in inheritance then ss. 36 &37 would rotthese reasons, therefore, we are satisfied that the origin of the title of Smt. Menda lay in inheritance of the estate of her husband however limited o r precarious it may have been. This being the position, the succession to the estate of Smt. Menda would have to be governed by the provisions of s. 172 of the Abolition Act which has applied the provisions of s. 171 regarding the order of succession. In the order of succession given in s. 171 of the Abolition Act brothers son is a preferential heir. It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter was also introduced as an heir before brothers son. But this was not the position prior to 1954 when the married daughter was completely excluded from inheritance. It is also not disputed that Smt. Phoola was a married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhins brothers son, namely, Jit and thereafter on his heir who is now continuing the present proceedings. Thus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt. Phoola. the Revenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by s. 174 of the Abolition Act as the interest left by Smt. Menda was herproperty. The result is that the appeal is allowed, the judgment of the Division Bench is set aside and that of the learned Single Judge is hereby restored. In the peculiar circumstances of this case, and particularly having regard to the fact that the respondents have not appeared to contest the appeal before this Court, we make no order as to costs in this Court.
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Radha Krishna Vs. Gokul | redeeming feature of Mr Bahugunas submissions pertains to the theory of ability to pay: audited accounts have been produced for the year 1995 depicting a situation, though not of having stringency but the situation truly cannot but be ascribed to be otherwise comfortable to pay as directed by the High Court. The matter, however, was prolonged in the law courts in the usual manner and it took nearly six years for its final disposal before this Court — these six years, however, had rendered the financial stability of the School concerned in a much more stronger situation than what it was in the year 1995. The School as of date stands out to be one of the most affluent schools in the country, as such ability to pay cannot be termed to be an issue in the matter and in the wake thereto we are not inclined to deal with the same in any further detail. 12. At this stage, we may usefully notice the judgment in Arvind Kumar Mishra v. New India Assurance Company Limited (2010) 10 SCC 254 . In that case, a two-Judge Bench considered the issue relating to award of compensation to the appellant who had suffered grievous injuries in a road accident. At the time of the accident, the appellants age was 25 years and he was a student of Bachelor of Engineering (Mechanical). The Tribunal had awarded compensation of Rs.2,50,000. The High Court enhanced it to Rs.3,50,000. After noticing the judgments in G.M., Kerala SRTC v. Susamma Thomas (supra) and Sarla Verma v. DTC (supra), the Bench enhanced the amount of compensation to Rs.9,06,000. The reasons for this approach are discernible from paragraphs 13 to 15 of the judgment, which are extracted below: 13. The appellant at the time of accident was a final year Engineering (Mechanical) student in a reputed college. He was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the said accident he suffered grievous injuries and remained in coma for about two months. His studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious; his right hand was amputated and vision seriously affected. These multiple injuries ultimately led to 70% permanent disablement. He has been rendered incapacitated and a career ahead of him in his chosen line of Mechanical Engineering got dashed for ever. He is now in a physical condition that he requires domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident. 14. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like BIT, it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000 per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000 per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000 per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. Since he suffered 70% permanent disability, the future earnings may be discounted by 30% and, accordingly, we estimate upon the facts that the multiplicand should be Rs. 42,000 per annum. 15. The appellant at the time of accident was about 25 years. As per the decision of this Court in Sarla Verma v. DTC the operative multiplier would be 18. The loss of future earnings by multiplying the multiplicand of Rs. 42,000 by a multiplier of 18 comes to Rs. 7,56,000. The damages to compensate the appellant towards loss of future earnings, in our considered judgment, must be Rs. 7,56,000. The Tribunal awarded him Rs. 1,50,000 towards treatment including the medical expenses. The same is maintained as it is and, accordingly, the total amount of compensation to which the appellant is entitled is Rs. 9,06,000. 13. In Lata Wadhwas case, the accident had occurred on 03.03.1989 and this Court awarded compensation of Rs.4,10,000 to the parents of the deceased children who were students of Classes VI to X. In M.S. Grewals case, the accident had occurred on 28.5.1995. This Court awarded compensation of Rs.5,00,000 to the parents of the children who were students of IV, V and VI classes. In Anil Kumar Mishras case, the accident had occurred on 23.6.1993 and the victim of accident, who was a student of final year Engineering was awarded compensation of Rs.9,06,000. 14. In the present case, the accident occurred on 20.1.2003. The deceased was 19 years old and was a student of Engineering course. The Tribunal determined the compensation by taking his annual income to be Rs.15,000 and deducted 1/3rd towards personal expenses. In Arvind Kumar Mishras case, the Bench proceeded on the assumption that after completion of the Engineering course, the appellant could have been appointed as Assistant Engineer and earn Rs.60,000 per annum. However, keeping in view the degree of disability, his estimated earning was taken as Rs.42,000 per annum and accordingly the amount of compensation was awarded. By applying the same yardstick and having regard to the age of the parents of the deceased, i.e., 45 and 42 respectively, we feel that ends of justice will be served by awarding a lump sum compensation of Rs.7,00,000 to the appellants. | 1[ds]14. In the present case, the accident occurred on 20.1.2003. The deceased was 19 years old and was a student of Engineering course. The Tribunal determined the compensation by taking his annual income to be Rs.15,000 and deducted 1/3rd towards personal expenses. In Arvind Kumar Mishras case, the Bench proceeded on the assumption that after completion of the Engineering course, the appellant could have been appointed as Assistant Engineer and earn Rs.60,000 per annum. However, keeping in view the degree of disability, his estimated earning was taken as Rs.42,000 per annum and accordingly the amount of compensation was awarded. By applying the same yardstick and having regard to the age of the parents of the deceased, i.e., 45 and 42 respectively, we feel that ends of justice will be served by awarding a lump sum compensation of Rs.7,00,000 to the appellants. | 1 | 5,156 | 160 | ### 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:
redeeming feature of Mr Bahugunas submissions pertains to the theory of ability to pay: audited accounts have been produced for the year 1995 depicting a situation, though not of having stringency but the situation truly cannot but be ascribed to be otherwise comfortable to pay as directed by the High Court. The matter, however, was prolonged in the law courts in the usual manner and it took nearly six years for its final disposal before this Court — these six years, however, had rendered the financial stability of the School concerned in a much more stronger situation than what it was in the year 1995. The School as of date stands out to be one of the most affluent schools in the country, as such ability to pay cannot be termed to be an issue in the matter and in the wake thereto we are not inclined to deal with the same in any further detail. 12. At this stage, we may usefully notice the judgment in Arvind Kumar Mishra v. New India Assurance Company Limited (2010) 10 SCC 254 . In that case, a two-Judge Bench considered the issue relating to award of compensation to the appellant who had suffered grievous injuries in a road accident. At the time of the accident, the appellants age was 25 years and he was a student of Bachelor of Engineering (Mechanical). The Tribunal had awarded compensation of Rs.2,50,000. The High Court enhanced it to Rs.3,50,000. After noticing the judgments in G.M., Kerala SRTC v. Susamma Thomas (supra) and Sarla Verma v. DTC (supra), the Bench enhanced the amount of compensation to Rs.9,06,000. The reasons for this approach are discernible from paragraphs 13 to 15 of the judgment, which are extracted below: 13. The appellant at the time of accident was a final year Engineering (Mechanical) student in a reputed college. He was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the said accident he suffered grievous injuries and remained in coma for about two months. His studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious; his right hand was amputated and vision seriously affected. These multiple injuries ultimately led to 70% permanent disablement. He has been rendered incapacitated and a career ahead of him in his chosen line of Mechanical Engineering got dashed for ever. He is now in a physical condition that he requires domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident. 14. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like BIT, it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000 per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000 per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000 per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. Since he suffered 70% permanent disability, the future earnings may be discounted by 30% and, accordingly, we estimate upon the facts that the multiplicand should be Rs. 42,000 per annum. 15. The appellant at the time of accident was about 25 years. As per the decision of this Court in Sarla Verma v. DTC the operative multiplier would be 18. The loss of future earnings by multiplying the multiplicand of Rs. 42,000 by a multiplier of 18 comes to Rs. 7,56,000. The damages to compensate the appellant towards loss of future earnings, in our considered judgment, must be Rs. 7,56,000. The Tribunal awarded him Rs. 1,50,000 towards treatment including the medical expenses. The same is maintained as it is and, accordingly, the total amount of compensation to which the appellant is entitled is Rs. 9,06,000. 13. In Lata Wadhwas case, the accident had occurred on 03.03.1989 and this Court awarded compensation of Rs.4,10,000 to the parents of the deceased children who were students of Classes VI to X. In M.S. Grewals case, the accident had occurred on 28.5.1995. This Court awarded compensation of Rs.5,00,000 to the parents of the children who were students of IV, V and VI classes. In Anil Kumar Mishras case, the accident had occurred on 23.6.1993 and the victim of accident, who was a student of final year Engineering was awarded compensation of Rs.9,06,000. 14. In the present case, the accident occurred on 20.1.2003. The deceased was 19 years old and was a student of Engineering course. The Tribunal determined the compensation by taking his annual income to be Rs.15,000 and deducted 1/3rd towards personal expenses. In Arvind Kumar Mishras case, the Bench proceeded on the assumption that after completion of the Engineering course, the appellant could have been appointed as Assistant Engineer and earn Rs.60,000 per annum. However, keeping in view the degree of disability, his estimated earning was taken as Rs.42,000 per annum and accordingly the amount of compensation was awarded. By applying the same yardstick and having regard to the age of the parents of the deceased, i.e., 45 and 42 respectively, we feel that ends of justice will be served by awarding a lump sum compensation of Rs.7,00,000 to the appellants.
### Response:
1
### Explanation:
14. In the present case, the accident occurred on 20.1.2003. The deceased was 19 years old and was a student of Engineering course. The Tribunal determined the compensation by taking his annual income to be Rs.15,000 and deducted 1/3rd towards personal expenses. In Arvind Kumar Mishras case, the Bench proceeded on the assumption that after completion of the Engineering course, the appellant could have been appointed as Assistant Engineer and earn Rs.60,000 per annum. However, keeping in view the degree of disability, his estimated earning was taken as Rs.42,000 per annum and accordingly the amount of compensation was awarded. By applying the same yardstick and having regard to the age of the parents of the deceased, i.e., 45 and 42 respectively, we feel that ends of justice will be served by awarding a lump sum compensation of Rs.7,00,000 to the appellants.
|
Ahura Chemical Products Private Limited Vs. Union of India | is exempt from payment of duty, being manufactured without the aid of power, cannot be treated at par with purchases made from th e open market". It is against this order of the Government of India that the appellant has come up to this Court with this appeal.The language used in Columns (2) and (3) of the Table appended to the Notification dated January 20, 1968 is simple and unambiguous. It shows that the benefit of the exemption will be available in respect of the emulsifiers/wetting out agents provided that either of the following two conditions is fulfilled:(a) Excise duty (inclusive o f additional duty under section 2A) should have been already paid in respect of the surface active agents used as raw- material in the manufacture of the emulsifiers, wetting out agents, etc..(b) The surface active agents used as raw-material for the manufacture of the emulsifiers/wetting out agents should have been purchased from the open market on or after the 20th day of January, 1968.7. The first of the aforementioned conditions was obviously not satisfied in the present case since the surface active agents were purchased by the appellant-Company from a manufacturer who was exempt from payment of excise duty on account of the fact that the process of manufacture was being carried out without the aid of power. The appellant-Company contends that the second of the aforesaid conditions, namely, that the surface active agents should have been purchased from the open market on or after the 20th day of January 1968 was fully satisfied in the present case, and hence it was entitled to the benefit of the exemption granted by the Notification, That the appellant had purchased the surface active agents used in the manufacture of the emulisifiers/wetting out agents subsequent to the 20th day of January, 1968 is undisputed. The purchases of the raw-material had been made by the appellant from the Industrial General Products Private Limited. The short question to be considered is, whether those transactions of purchase effected by the appellant from the Industrial General Products Private Limited can be regarded as purchases "from the open market"?In determining the eligibility of a person for the benefit of the exemption conferred by the Notification on the basis of the fulfillment of the second of the aforementioned conditions, it is wholly irrelevant to enquire whether duty of excise had already been paid in respect of the surface active agents purchased and utilised as raw material for the manufacture of the emulsifiers/wetting out agents. The sole question to be examined is, whether the surface active agents used in the manufacture of the emulsifiers were purchased "from the open market" on or after the 20th day of January, 1968 ?8. The Assistant Collector as well as the Appellate Revisional Authorities have taken the view that the exemption granted by the Notification will get attracted only if the surface active agents used as raw-material had been already subjected to levy of duty at the primary stage. In our opinion, the said view is based on an erroneous interpretation of the provisions contained in item 4 of the Table appended to the Notification. The condition that the duty of excise should have already been paid on the raw- material (surface active agents) has no application to cases covered by the second part of Column (3) of Sl. No. 4 of the Table, namely, cases where the surface active agents were purchased from the open market on or after the 20th day of January, 1968.9. That brings us back to the question, whether the purchases effected by the appellant from M/s. Industrial General Products Private Limited were purchases "from the open market"? Having due regard to the context in which the expression "open market has been used in the Notification, it would be wholly wrong to understand the said expression "open market" as connoting only a market-yard, bazar or a shopping complex where goods are offered for sale. Industrial chemicals (which have to he ordinarily purchased in bulk for use as raw-material in the manufacture of secondary products) are not commodities that are usually exposed for sale in bazars and shops. Such bulk purchases of chemicals etc., are effected by placing orders with the concerned manufacturing units. In our opinion, if the transactions of sale and purchases are effected under conditions enabling every person desirous of purchasing the goods in question to place orders with such manufacturing unit and obtain supplies, they will constitute purchases "from the open market". We may in this context refer with advantage to the following observations of Swinfen Eady, J. in Inland Revenue Commissioners v. Clay(l), where the Court of appeal had to consider the scope of the expression "open market" occurring in section 25 (1) of the Finance Act, 1910 (10 Edw. 7, c. 8):"The market is to be the open market, as distinguished from an offer to a limited class only, such as the members of the family. The market is not necessarily an auction sale. The section means such amount as the land might be expected to realize if offered under conditions enabling every person desirous of purchasing to come in and make an offer, and if proper steps were taken to advertise the property and let all likely purchasers know that the land is in the market for sale."We fully agree with these observations.10. In the present case, it was open to every person desirous of purchasing the sur face active agents to place orders with the manufacturing Company, namely, M/s. Industrial General Products Private Limited, and obtain the supply on payment of the price at the prevailing rate. The sales by the said Company were not to a limited class only. Hence, the purchases of the surface active agents effected by the appellant from M/s. Industrial General Products Private Limited have to be treated as purchases made "from the open market." The denial to the appellant of the benefit of the exemption provided for by the Notification was, therefore, clearly illegal.11. | 1[ds]The Assistant Collector as well as the Appellate Revisional Authorities have taken the view that the exemption granted by the Notification will get attracted only if the surface active agents used as raw-material had been already subjected to levy of duty at the primary stage. In our opinion, the said view is based on an erroneous interpretation of the provisions contained in item 4 of the Table appended to the Notification. The condition that the duty of excise should have already been paid on the raw- material (surface active agents) has no application to cases covered by the second part of Column (3) of Sl. No. 4 of the Table, namely, cases where the surface active agents were purchased fromthe open market on orth day ofg due regard to the context in which the expression "open market has been used in the Notification, it would be wholly wrong to understand the said expression "open market" as connoting only a market-yard, bazar or a shopping complex where goods are offered for sale. Industrial chemicals (which have to he ordinarily purchased in bulk for use as raw-material in the manufacture of secondary products) are not commodities that are usually exposed for sale in bazars and shops. Such bulk purchases of chemicals etc., are effected by placing orders with the concerned manufacturing units. In our opinion, if the transactions of sale and purchases are effected under conditions enabling every person desirous of purchasing the goods in question to place orders with such manufacturing unit and obtain supplies, they will constitute purchases "from the openthe present case, it was open to every person desirous of purchasing the sur face active agents to place orders with the manufacturing Company, namely, M/s. Industrial General Products Private Limited, and obtain the supply on payment of the price at the prevailing rate. The sales by the said Company were not to a limited class only. Hence, the purchases of the surface active agents effected by the appellant from M/s. Industrial General Products Private Limited have to be treated as purchases made "from the open market." The denial to the appellant of the benefit of the exemption provided for by the Notification was, therefore, clearly illegal.The first of the aforementioned conditions was obviously not satisfied in the present case since the surface active agents were purchased by thefrom a manufacturer who was exempt from payment of excise duty on account of the fact that the process of manufacture was being carried out without the aid of power. Thecontends that the second of the aforesaid conditions, namely, that the surface active agents should have been purchased fromthe open market on orth day ofJanuary 1968 was fully satisfied in the present case, and hence it was entitled to the benefit of the exemption granted by the Notification, That the appellant had purchased the surface active agents used in the manufacture of the emulisifiers/wetting out agents subsequent to thery, 1968is undisputed. The purchases of thehad been made by the appellant from the Industrial General Products Private Limited. The short question to be considered is,whether those transactions of purchase effected by the appellant from the Industrial General Products Private Limited can be regarded as purchases "from the openmarket"?In determining the eligibility of a person for the benefit of the exemption conferred by the Notification on the basis of the fulfillment of the second of the aforementioned conditions, it is wholly irrelevant to enquire whether duty of excise had already been paid in respect of the surface active agents purchased and utilised as raw material for the manufacture of the emulsifiers/wetting out agents. Thesole question to be examined is, whetherthe surface active agents used in the manufacture of the emulsifiers were purchased "from the open market" on or after thery, 1968 | 1 | 2,185 | 690 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
is exempt from payment of duty, being manufactured without the aid of power, cannot be treated at par with purchases made from th e open market". It is against this order of the Government of India that the appellant has come up to this Court with this appeal.The language used in Columns (2) and (3) of the Table appended to the Notification dated January 20, 1968 is simple and unambiguous. It shows that the benefit of the exemption will be available in respect of the emulsifiers/wetting out agents provided that either of the following two conditions is fulfilled:(a) Excise duty (inclusive o f additional duty under section 2A) should have been already paid in respect of the surface active agents used as raw- material in the manufacture of the emulsifiers, wetting out agents, etc..(b) The surface active agents used as raw-material for the manufacture of the emulsifiers/wetting out agents should have been purchased from the open market on or after the 20th day of January, 1968.7. The first of the aforementioned conditions was obviously not satisfied in the present case since the surface active agents were purchased by the appellant-Company from a manufacturer who was exempt from payment of excise duty on account of the fact that the process of manufacture was being carried out without the aid of power. The appellant-Company contends that the second of the aforesaid conditions, namely, that the surface active agents should have been purchased from the open market on or after the 20th day of January 1968 was fully satisfied in the present case, and hence it was entitled to the benefit of the exemption granted by the Notification, That the appellant had purchased the surface active agents used in the manufacture of the emulisifiers/wetting out agents subsequent to the 20th day of January, 1968 is undisputed. The purchases of the raw-material had been made by the appellant from the Industrial General Products Private Limited. The short question to be considered is, whether those transactions of purchase effected by the appellant from the Industrial General Products Private Limited can be regarded as purchases "from the open market"?In determining the eligibility of a person for the benefit of the exemption conferred by the Notification on the basis of the fulfillment of the second of the aforementioned conditions, it is wholly irrelevant to enquire whether duty of excise had already been paid in respect of the surface active agents purchased and utilised as raw material for the manufacture of the emulsifiers/wetting out agents. The sole question to be examined is, whether the surface active agents used in the manufacture of the emulsifiers were purchased "from the open market" on or after the 20th day of January, 1968 ?8. The Assistant Collector as well as the Appellate Revisional Authorities have taken the view that the exemption granted by the Notification will get attracted only if the surface active agents used as raw-material had been already subjected to levy of duty at the primary stage. In our opinion, the said view is based on an erroneous interpretation of the provisions contained in item 4 of the Table appended to the Notification. The condition that the duty of excise should have already been paid on the raw- material (surface active agents) has no application to cases covered by the second part of Column (3) of Sl. No. 4 of the Table, namely, cases where the surface active agents were purchased from the open market on or after the 20th day of January, 1968.9. That brings us back to the question, whether the purchases effected by the appellant from M/s. Industrial General Products Private Limited were purchases "from the open market"? Having due regard to the context in which the expression "open market has been used in the Notification, it would be wholly wrong to understand the said expression "open market" as connoting only a market-yard, bazar or a shopping complex where goods are offered for sale. Industrial chemicals (which have to he ordinarily purchased in bulk for use as raw-material in the manufacture of secondary products) are not commodities that are usually exposed for sale in bazars and shops. Such bulk purchases of chemicals etc., are effected by placing orders with the concerned manufacturing units. In our opinion, if the transactions of sale and purchases are effected under conditions enabling every person desirous of purchasing the goods in question to place orders with such manufacturing unit and obtain supplies, they will constitute purchases "from the open market". We may in this context refer with advantage to the following observations of Swinfen Eady, J. in Inland Revenue Commissioners v. Clay(l), where the Court of appeal had to consider the scope of the expression "open market" occurring in section 25 (1) of the Finance Act, 1910 (10 Edw. 7, c. 8):"The market is to be the open market, as distinguished from an offer to a limited class only, such as the members of the family. The market is not necessarily an auction sale. The section means such amount as the land might be expected to realize if offered under conditions enabling every person desirous of purchasing to come in and make an offer, and if proper steps were taken to advertise the property and let all likely purchasers know that the land is in the market for sale."We fully agree with these observations.10. In the present case, it was open to every person desirous of purchasing the sur face active agents to place orders with the manufacturing Company, namely, M/s. Industrial General Products Private Limited, and obtain the supply on payment of the price at the prevailing rate. The sales by the said Company were not to a limited class only. Hence, the purchases of the surface active agents effected by the appellant from M/s. Industrial General Products Private Limited have to be treated as purchases made "from the open market." The denial to the appellant of the benefit of the exemption provided for by the Notification was, therefore, clearly illegal.11.
### Response:
1
### Explanation:
The Assistant Collector as well as the Appellate Revisional Authorities have taken the view that the exemption granted by the Notification will get attracted only if the surface active agents used as raw-material had been already subjected to levy of duty at the primary stage. In our opinion, the said view is based on an erroneous interpretation of the provisions contained in item 4 of the Table appended to the Notification. The condition that the duty of excise should have already been paid on the raw- material (surface active agents) has no application to cases covered by the second part of Column (3) of Sl. No. 4 of the Table, namely, cases where the surface active agents were purchased fromthe open market on orth day ofg due regard to the context in which the expression "open market has been used in the Notification, it would be wholly wrong to understand the said expression "open market" as connoting only a market-yard, bazar or a shopping complex where goods are offered for sale. Industrial chemicals (which have to he ordinarily purchased in bulk for use as raw-material in the manufacture of secondary products) are not commodities that are usually exposed for sale in bazars and shops. Such bulk purchases of chemicals etc., are effected by placing orders with the concerned manufacturing units. In our opinion, if the transactions of sale and purchases are effected under conditions enabling every person desirous of purchasing the goods in question to place orders with such manufacturing unit and obtain supplies, they will constitute purchases "from the openthe present case, it was open to every person desirous of purchasing the sur face active agents to place orders with the manufacturing Company, namely, M/s. Industrial General Products Private Limited, and obtain the supply on payment of the price at the prevailing rate. The sales by the said Company were not to a limited class only. Hence, the purchases of the surface active agents effected by the appellant from M/s. Industrial General Products Private Limited have to be treated as purchases made "from the open market." The denial to the appellant of the benefit of the exemption provided for by the Notification was, therefore, clearly illegal.The first of the aforementioned conditions was obviously not satisfied in the present case since the surface active agents were purchased by thefrom a manufacturer who was exempt from payment of excise duty on account of the fact that the process of manufacture was being carried out without the aid of power. Thecontends that the second of the aforesaid conditions, namely, that the surface active agents should have been purchased fromthe open market on orth day ofJanuary 1968 was fully satisfied in the present case, and hence it was entitled to the benefit of the exemption granted by the Notification, That the appellant had purchased the surface active agents used in the manufacture of the emulisifiers/wetting out agents subsequent to thery, 1968is undisputed. The purchases of thehad been made by the appellant from the Industrial General Products Private Limited. The short question to be considered is,whether those transactions of purchase effected by the appellant from the Industrial General Products Private Limited can be regarded as purchases "from the openmarket"?In determining the eligibility of a person for the benefit of the exemption conferred by the Notification on the basis of the fulfillment of the second of the aforementioned conditions, it is wholly irrelevant to enquire whether duty of excise had already been paid in respect of the surface active agents purchased and utilised as raw material for the manufacture of the emulsifiers/wetting out agents. Thesole question to be examined is, whetherthe surface active agents used in the manufacture of the emulsifiers were purchased "from the open market" on or after thery, 1968
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