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State Of Rajasthan Vs. Rao Raja Sardar Singh | the account of the cesses and the contribution due from the respondent was taken on September 15, 1953 and a detailed statement of account was sent to the respondent demanding from him a sum of Rs. 55,791/1/- as arrears due from him. In response to the demand made by the District Board, the respondent paid only a sum of Rs, 18,291/1/0 and declined to pay the balance inspite of repeated demands and hence the suit had to be brought.2. The respondent resisted the plaintiffs suit on various grounds. At present we are concerned only with two of the pleas taken by him, viz. (1) that the suit is not maintainable and (2) that the claim made in the plaint is barred by limitation. During the pendency of the suit the plaintiff District Board was abolished and its functions were taken over by the Government of Rajasthan. But this change-over does not change the nature of the suit in considering the question whether the suit as brought was maintainable. We have merely to see whether the District Board of Sikar was competent to bring the suit. The Rajasthan Government cannot and did not claim any right more than that possessed by the District Board, Sikar as the suit is continued by the government as the successor of the former District Board.3. The trial court partly decreed the plaintiffs suit. It held that though the District Board was not entitled to claim the contribution from the respondent, it had the right to claim the cesses collected by the respondent from sub-grantees and tenants. In appeal the High Court dismissed the entire suit holding that the claim was barred by limitation as it was governed by Art. 62 of the Limitation Act, 1908. The High Court while being of opinion that the District Board had no right to maintain the suit, yet did not accept the plea of the respondent that the suit was not maintainable on the ground that the said plea had not been taken by the respondent in his written statement.4. As we are of opinion that the suit was not maintainable we have not thought it necessary to go into the question of limitation. In our opinion, the High Court was wrong in holding that the respondent had not pleaded that the suit was not maintainable. In paragraph 1 of the written statement of the respondent, it was specifically pleaded that:". . .that the right of the District Board to levy and realise cesses and contribution from the Government and the Thikanedars or Atiyadars is not admitted and is categorically denied."5. This is a specific plea. On the basis of this plea as well as some other pleas, the trial court had framed issue No. 1 which reads:"Whether a sum of Rs. 38075/10 /3 is due from the defendant to the plaintiff on account of cess and contribution for the years 1951-52, 1952-53 and for the period from 1-4-54 to 15-6-1954?"6. Though this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence.7. Now adverting to the question of maintainability of the suit, the provisions relevant for this purpose are Ss. 31 (2), 32 (b), 33 and 34 (1) of the Jaipur District Boards Act, 1947. We shall now proceed to read those provisions:"31. With the previous sanction of the Government a Board shall levy by means of a resolution:(2) In Non-khalsa area:(a) in settled villages and also in unsettled villages where rents are payable wholly in cash, a cess ranging from six pies to two annas per rupee on the rents payable;32. (a) All sums due from tenants in Khalsa areas shall be realised by the Tehsildars along with the land revenue.(b) All sums due from tenants in areas other than Khalsa including the tenants of sub-grantees shall be recoverable from the grantees and remitted by them to the Government.The grantees shall be entitled to realise from their tenants and the sub-grantees, and the sub-grantees from their tenants, the sums due under clause 2 of Section 3.33. Government shall give a grant equivalent in amount to the cess levied in Khalsa area by the Board.34. (1) Government shall realise from each State-grantee an amount equal to the aggregate of the amounts of cess payable to him by his tenants."8. From a perusal of these provisions it is clear that in the matter of collection of cesses by the Thikanedar from his sub-grantees and tenants in the Non-Khalsa area, he has to pay the same along with his contribution to the Government and the Government thereafter makes it over to the District Board. He has no liability to make over the collection of cesses to the District Board nor is there any right conferred on the District Board to demand and collect the same from the Thikanedar. Mr. Chagla appearing for the State of Rajasthan conceded that the claim made by the District Board in respect of the contribution due from the respondent is not sustainable as the same had to be collected by the Government but he tried to make a distinction between the claim in respect of the contribution due and that in respect of the cess collected by the respondent from his sub-grantees and tenants. No provision of the Act has been brought to our notice which either requires the Thikanedars to pay the cess collected by them from their sub-grantees and tenants to the District Board or which confers any right on the District Board to demand the payment of the same. In fact a perusal of the provisions quoted above clearly shows that the liability of the Thikanedar is to pay the cess collected by him to the Government. | 0[ds]4. As we are of opinion that the suit was not maintainable we have not thought it necessary to go into the question of limitation. In our opinion, the High Court was wrong in holding that the respondent had not pleaded that the suit was notThough this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence.From a perusal of these provisions it is clear that in the matter of collection of cesses by the Thikanedar from hisand tenants in thearea, he has to pay the same along with his contribution to the Government and the Government thereafter makes it over to the District Board. He has no liability to make over the collection of cesses to the District Board nor is there any right conferred on the District Board to demand and collect the same from the Thikanedar. Mr. Chagla appearing for the State of Rajasthan conceded that the claim made by the District Board in respect of the contribution due from the respondent is not sustainable as the same had to be collected by the Government but he tried to make a distinction between the claim in respect of the contribution due and that in respect of the cess collected by the respondent from hisand tenants. No provision of the Act has been brought to our notice which either requires the Thikanedars to pay the cess collected by them from theirand tenants to the District Board or which confers any right on the District Board to demand the payment of the same. In fact a perusal of the provisions quoted above clearly shows that the liability of the Thikanedar is to pay the cess collected by him to the | 0 | 1,283 | 351 | ### Instruction:
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the account of the cesses and the contribution due from the respondent was taken on September 15, 1953 and a detailed statement of account was sent to the respondent demanding from him a sum of Rs. 55,791/1/- as arrears due from him. In response to the demand made by the District Board, the respondent paid only a sum of Rs, 18,291/1/0 and declined to pay the balance inspite of repeated demands and hence the suit had to be brought.2. The respondent resisted the plaintiffs suit on various grounds. At present we are concerned only with two of the pleas taken by him, viz. (1) that the suit is not maintainable and (2) that the claim made in the plaint is barred by limitation. During the pendency of the suit the plaintiff District Board was abolished and its functions were taken over by the Government of Rajasthan. But this change-over does not change the nature of the suit in considering the question whether the suit as brought was maintainable. We have merely to see whether the District Board of Sikar was competent to bring the suit. The Rajasthan Government cannot and did not claim any right more than that possessed by the District Board, Sikar as the suit is continued by the government as the successor of the former District Board.3. The trial court partly decreed the plaintiffs suit. It held that though the District Board was not entitled to claim the contribution from the respondent, it had the right to claim the cesses collected by the respondent from sub-grantees and tenants. In appeal the High Court dismissed the entire suit holding that the claim was barred by limitation as it was governed by Art. 62 of the Limitation Act, 1908. The High Court while being of opinion that the District Board had no right to maintain the suit, yet did not accept the plea of the respondent that the suit was not maintainable on the ground that the said plea had not been taken by the respondent in his written statement.4. As we are of opinion that the suit was not maintainable we have not thought it necessary to go into the question of limitation. In our opinion, the High Court was wrong in holding that the respondent had not pleaded that the suit was not maintainable. In paragraph 1 of the written statement of the respondent, it was specifically pleaded that:". . .that the right of the District Board to levy and realise cesses and contribution from the Government and the Thikanedars or Atiyadars is not admitted and is categorically denied."5. This is a specific plea. On the basis of this plea as well as some other pleas, the trial court had framed issue No. 1 which reads:"Whether a sum of Rs. 38075/10 /3 is due from the defendant to the plaintiff on account of cess and contribution for the years 1951-52, 1952-53 and for the period from 1-4-54 to 15-6-1954?"6. Though this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence.7. Now adverting to the question of maintainability of the suit, the provisions relevant for this purpose are Ss. 31 (2), 32 (b), 33 and 34 (1) of the Jaipur District Boards Act, 1947. We shall now proceed to read those provisions:"31. With the previous sanction of the Government a Board shall levy by means of a resolution:(2) In Non-khalsa area:(a) in settled villages and also in unsettled villages where rents are payable wholly in cash, a cess ranging from six pies to two annas per rupee on the rents payable;32. (a) All sums due from tenants in Khalsa areas shall be realised by the Tehsildars along with the land revenue.(b) All sums due from tenants in areas other than Khalsa including the tenants of sub-grantees shall be recoverable from the grantees and remitted by them to the Government.The grantees shall be entitled to realise from their tenants and the sub-grantees, and the sub-grantees from their tenants, the sums due under clause 2 of Section 3.33. Government shall give a grant equivalent in amount to the cess levied in Khalsa area by the Board.34. (1) Government shall realise from each State-grantee an amount equal to the aggregate of the amounts of cess payable to him by his tenants."8. From a perusal of these provisions it is clear that in the matter of collection of cesses by the Thikanedar from his sub-grantees and tenants in the Non-Khalsa area, he has to pay the same along with his contribution to the Government and the Government thereafter makes it over to the District Board. He has no liability to make over the collection of cesses to the District Board nor is there any right conferred on the District Board to demand and collect the same from the Thikanedar. Mr. Chagla appearing for the State of Rajasthan conceded that the claim made by the District Board in respect of the contribution due from the respondent is not sustainable as the same had to be collected by the Government but he tried to make a distinction between the claim in respect of the contribution due and that in respect of the cess collected by the respondent from his sub-grantees and tenants. No provision of the Act has been brought to our notice which either requires the Thikanedars to pay the cess collected by them from their sub-grantees and tenants to the District Board or which confers any right on the District Board to demand the payment of the same. In fact a perusal of the provisions quoted above clearly shows that the liability of the Thikanedar is to pay the cess collected by him to the Government.
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4. As we are of opinion that the suit was not maintainable we have not thought it necessary to go into the question of limitation. In our opinion, the High Court was wrong in holding that the respondent had not pleaded that the suit was notThough this issue is not very specific but undoubtedly it covers the plea taken by the respondent in paragraph 1 of his written statement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence.From a perusal of these provisions it is clear that in the matter of collection of cesses by the Thikanedar from hisand tenants in thearea, he has to pay the same along with his contribution to the Government and the Government thereafter makes it over to the District Board. He has no liability to make over the collection of cesses to the District Board nor is there any right conferred on the District Board to demand and collect the same from the Thikanedar. Mr. Chagla appearing for the State of Rajasthan conceded that the claim made by the District Board in respect of the contribution due from the respondent is not sustainable as the same had to be collected by the Government but he tried to make a distinction between the claim in respect of the contribution due and that in respect of the cess collected by the respondent from hisand tenants. No provision of the Act has been brought to our notice which either requires the Thikanedars to pay the cess collected by them from theirand tenants to the District Board or which confers any right on the District Board to demand the payment of the same. In fact a perusal of the provisions quoted above clearly shows that the liability of the Thikanedar is to pay the cess collected by him to the
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Bridge & Roof Co. (India) Ltd Vs. Union Of India | an industrial concern (as, for example, attendance bonus) and that is why bonus of all kinds was also excluded from the definition of the term " basic wages". The Act is all India Act applicable to all Industries mentioned in Sch. I and to all concerns engaged in those industries, and the intention behind the exclusion seems to be to make the incidence of provident fund the same in all industrial concerns, which are covered by the Act so that it was necessary to exclude from the wide definition of "basic wages" given in the opening part, all such payments which would not be common to all industries or to all employees in the same concern We have already pointed out that to this principle, only dearness allowance, in cl. (ii) is an exception but that exception has been corrected by the inclusion of dearness allowance in S.6.We are therefore of opinion that there is no reason why when the word bonus" is used in cl (ii) without any qualifying word, it should not be interpreted to include all kinds of bonus which were known to industrial adjudication before 1952 and which must therefore, be deemed to be within the knowledge of the legislature.12. This brings us to the consideration of the contention raised on behalf of the respondents that wages are the price for labour and arise out of contract and that whatever is the price for labour and arises out of contract was intended to be included in the definition of "basic wages" in S. 2(b), and that only those things were excluded which were a reward for labour not arising out of the contract of employment but depending on various other consideration like profit for attendance. It may be, us we have pointed out earlier, that if there were no exception to the main part of the definition in S.2(b), whatever was payable in cash as price for labour and arose out of contract would be included in the term "basic wages, and that reward for labour of which did not arise out of contract might not be included in the definition. But the main part of the definition is subject to expections in cl. (ii), and these exceptions clearly show that they include even the price for labour. It is, therefore, not possible to accept the contention on behalf of the respondents that whatever is price for labour and arises out of contract is included in the definition of "basic wages" and therefore production bonus which is a kind of incentive wage would be included.13. This court had occasion to consider production bonus 1959 Supp (2) SCR 1012. (AIR 1959 SC 1095 ). It was pointed out that "the payment production bonus depends upon production and is in addition to wages. In effect, it is an incentive to higher production and is in the nature of an incentive wage,. The straight piece-rate plan where payment is made according to each piece produced is the simplest of incentive wage plans. In a straight piece-rate plan, payment is made according to each piece produced and there is no minimum and the worker is free to produce as much or as little as he likes, his payment depending upon the number of pieces produced. But in such a case payment for all that is produced would be basic wage as defined in S.2(b) of the Act, even though the worker is working under an incentive wage plan. The difficulty arises where the straight piece-rate system. cannot work as when the finished product is the result of the co-operative effort of a large number of workers each doing a small part which contributes to the result. In such a case, the system of production bonus by tonnage or by any other standard is introduced. The core of such a plan is that there is a base or a standard above which extra payment is earned for extra production in addition to the basic wages which is the payment for work up to the base or standard Such a plan typically gurantees time wage up to the time represented by standard performance and gives workers a share in the savings represented by superior performance. The scheme in force in the Company is a typical scheme of production bonus of this kind with a base or standard up to which basic wages as time wages are paid and thereafter extra payments are made for superior performance. This extra payment may be called incentive wage and is also called production bonus. In all such cases however the workers are not hound to produce anything beyond the base or standard that is set out.14. The performance may even fall below the base or standard but the minimum basic wages will have to be paid whether the basic or standard is reached or not. When however the workers produce beyond the base or standard what they earn is not basic wages but production bonus or incentive wage. It is this production bonus which is outside the definit on of "basic wages" in S.2(b), for reasons which we have already given above. The production bonus in the present case is a typical production bonus scheme of this kind and whatever therefore is earned as production bonus is payable beyond a base or standard and it cannot form part of the definition of "basic wages" in S.2(b) because of the exception of all kinds of bonus from that definition. We are, therefore, of opinion that production bonus of this type is excluded from the definition of "basic wages" in S.2(b) and therefore the decision of the Central Government which was presumably under S. 19A of the Act to remove the difficulty arising out of giving effect to the provisions of the Act, by which such a bonus has been included in the definition of "basic wages" is incorrect. In view of this decision, it is unnecessary to consider the effect of Art. 14 in the present case.15. | 1[ds]4. It appears that difficulties and doubts arose on the question whether production bonus could be taken into account in calculating the contribution of 61/4 per centum under S.6 of the Act, and the Central Government directed about the March 7, 1962 that the question whether production bonus should be liable to provident fund deduction under the Act had beenby it and it had been decided that production bonus, payable as part of a contract of employment either at a flat rate or at a rate linked to the quantum of work turned out satisfied the definition of "basic wages" under S.2 (b) of the Act. The Company was further directed to effect recovery of provident fund contribution on production bonus without any further delay and arrear contribution in this respect payable with effect from January 1, 1960, was also to be deposited in the statutory fund immediately. The present petition was thereafter filed in April 1962 and is directed against the decision of the Central Government which was duly communicated to the Company in March,all kinds of bonus whether it be profit bonus or production bonus or attendance bonus or festival bonus either as an implied condition of service or as a customary payment, are excluded from basic wages further s.6 which provides for contribution only refers to basic wages, dearness allowances and retaining allowance (if any) and contributions have to be made at the appropriate rate on these three payments and not on bonus which is not included inis urged that when the Act was passed in 1952 the legislature, was aware of the various kinds of bonus which were being paid by various concerns in various industries and when it decided to exclude bonus without any qualification from the term "basic wages" as defined in S.2(b), it was not open to the Central Government to direct that production bonus should be included in basic wages for the purpose of contribution under S.this contention based on the interpretation of the word "bonus" in S. 2 (b), it is further contended that if the word "bonus" therein excludes production bonus the provision would be unconstitutional as it would be hit by Article 14 of the Constitution inasmuch as production bonus is not a general feature of an industrial concerns but has been introduced only inresult of including production bonus within basic wages would be that some concerns where production bonus prevails would be contributing to the provident fund at a much higher rate than others were no production bonusproduction bonus being in the nature of incentive wage must be included in the definition of the term " basic wages in S. 2 (b) as basic wages there defined are "all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the term of the contract of the employment and which are paid or payable in cash to him ..." Therefore, production bonus being in the nature of an incentive wage is included in the terms " all emoluments" in the definition of basic wages", for production bonus is earned by an employee while on duty in accordance with the terms of the contract of employment. It is further submitted that when the. word "bonus " was used in cl. (ii) of the exception to S.2(b), it only referred to profit bonus, as it was well established before 1952 that the use of the word "bonus" without any qualification referred to profit bonus only in industrial adjudications. Therefore, when cl. (ii) of the exception to S. 2(b) excepted "bonus" without any qualification it referred only to profit bonus and not to any other kind ofis no doubt that "basic wages" as defined therein means all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash. If there were no exception to this definition, there would have been no difficulty in holding that production bonus whatever be its nature would be included within this terms, the difficulty, however arises because the definition also provides that certain things will not be included in terms "basic wages", and these are contained in three clauses. the first clause mentions the cash value of any food concession while the third clause mentions any present made by the employer. The fact that the exception contains even presents made by the employer shows that though the definition mentions all emoluments which are earned in accordance with the terms of the contract of employment, care was taken to exclude presents which would ordinarily not be earned in accordance with the terms of the contract of employment. Similarly though the definition includes "all emoluments" which are paid or payable in cash, the exception excludes the cash value of any food concession, which any case was not payable in cash. The exceptions therefore do not seen to follow any logical pattern which would be in consonance with the main definition.8. Then we come to cl. (ii). It excludes dearness allowance,allowance, overtime allowance, bonus commission or any other similar allowances payable to the employee in respect of this employment or of work done in such employment. This exception suggests that even though the main part of the definition includes all emoluments which are earned in accordance with the terms of the contract of the employment, certain payments which are in fact the price of the labour and earned in accordance with the terms of the contract of employment are excluded from the main part of the definition of "basic wages". It is undeniable that the exception contained in cl. (ii) refer to payments which are earned by an employee in accordance with the terms of this contract of employment. It was admitted by counsel on both side before us that it was difficult to find any one basis for the exceptions contained in the three clauses. It is clear however from cl. (ii) that from the definition of the word "basic wages" certain earnings were excluded, though they must be earned by the employees in accordance with the terms of the contract of employment. Having excluded "dearness allowances" from the definition of basic wages", section 6 then provides for inclusion of dearness allowances for purposes of contribution. But that is clearly the result of the specific provision in Section 6 which lays down that contribution shall be 6 1/4 per centum of the basic wages, dearness allowances and retaining allowances (if any). We must therefore try to discover some basis for the exclusion in cl (ii) as also the inclusion of clearness allowance and retaining allowances (if any) in Section 6. It seems that the basis of inclusion in S.6 and exclusion in cl. (ii) is that whatever is payable in all concerns and is earned by all permanent employees is included for the purpose of contribution under S.6 but whatever is not payable by all concerns or may not be earned by all employees of a concern is excluded for the purposes of contribution. Dearness allowance (for example) is payable in all concerns either as an addition to basic wages or as a part of Consolidated wages where a concern does not have separate dearness allowance and basic wages. Similarly retaining allowance is payable to all permanent employees in all seasonal factories like sugar factories and is therefore included in S.6; butallowance is not paid in many concerns and sometimes in the same concern it is paid to some employees but not to others, for the theory is thatis included in the payment of basic wages plus dearness allowance or consolidated wages. Therefore,allowance which may not be payable to all employees of a concern and which is certainly not paid by all concerns is taken out of the definition of "basic wages" even though the basis of payment ofallowance where it is paid is the contract of employment. Similarly, Overtime allowance though it is generally in force in all concerns is not earned by all employees of a concern. It is also earned in accordance with the terms of the contract of employment, but because it may not be earned by all employees of a concern it is excluded from "basic wages". Similarly, commission or any other similar allowances is excluded from the definition of "basic wages" for commission and other allowances are not necessarily to be found in all concerns, nor are they necessarily earned by all employees of the same concern, though where they exist they are earned in accordance with the terms of the contract of employment. It seems therefore, that the basis for the exclusion in cl.(ii) of the exceptions in S.2(b) is that all that is not earned in all concerns or by all employees of a concern is excluded from basic wages. To this, the exclusion of dearness allowance in cl. (ii) is an exception. But that exception has been corrected by including dearness allowance in S.6 for the purpose of contribution. Dearness allowance which is an exception in the definition of "basic wages", is included for the purpose of contribution by S.6 and the real exceptions therefore in cl. (ii) are the other exceptions beside dearness allowances, which has been included through sectionit would not be improper to infer that when the word "bonus" was used without any qualification in the clause, the legislature had in mind every kind of bonus that may be payable to anexample, the Coal Mines Provident Fund and the Bonus Scheme Act, No. 46 of 1948 provided for payment of bonus depending on attendance of employees during any period. Besides the attendance bonus, four other kinds of bonus had been evolved under industrial law even before. 1952 and were in force in various concerns in various industries. There was first production bonus, which was in force in some concerns long before1952 (see Messrs. Titaghur Paper Mills Co. Ltd. v. Its Workmen, (1959) Supp (2) SCR 1012: (AIR 1959 SC 1095 )). Then there was festival or puja bonus which was in force as an implied term of employment long before 1952 (see Messrs. Ispahni Ltd. Calcutta v. Ispahni Employees UnionSCR 24 : (AIR 1959 SC 1147 )). Then there was customary bonus in connection with some festival (see Grehams Trading Co. (India) Ltd. v. Its Workmen,SCR 107: (AIR 1959 SC 1151 )). And lastly, there was profit bonus the principles underlying which and the determination of whose quantum were evolved by the Labour Appellate Tribunal in the Millowners Association v. The Rashtriya Mill Mazdoor Sangh Bombay,Lab LJ 1247 (IBom).The legislature therefore could not have been unaware that these different kinds of bonus were being paid by different concerns in different industries, when it passed the Act in 1952.Therefore, unless the contention on behalf of the respondents that bonus when it was used without qualification can only mean profit bonus is sound, it must be held that when the legislature used the term "bonus" without any qualification in cl.(ii) of the exception is S. 2(b)it must be referring to every kind of bonus which was prevalent in the industrial field beforeis true, as will appear from the terms of reference in various cases of profit bonus that the word "profit" was not used as a qualifying word before the word "bonus" in such cases, it may also be that in many cases where a particular type of bonus was in dispute, say, "attendance" or puja bonus, the qualifying word attendance or "puja" was used in references But it appears that where a reference was in connection with profit bonus, the usual practice was to make the reference after qualifying the word bonus" by the year for which the profit bonus was claimed. For example, we may refer to the case ofLab LJ 1247Bom), there in par. 16 at p. 1252, we find the term of reference in Reference No. 1 of 1948 Millowners Association Bombay v. Employees in the Cotton Textile Mills Bombay in these terms.Bonus for the year 1947seems therefore that when reference was with respect to profit bonus, the term bonus" though not qualified by the word "profit" had always been limited by specifying the year for which the bonus was being claimed, though therefore, it may be true that literally speaking, the word "profit" was not used to qualify the word "bonus" when reference were made with respect to profit bonus, the matter was put beyond controversy that the use of the word "bonus" without any qualification was with reference to profit bonus by adding the year for which the bonus was being claimed. It would therefore be not right to say that in industrial adjudication before 1952, bonus without any qualifying word meant profit bonus and nothing else. Further though the word "profit" was not used to qualify the word "bonus", the intention was made quite clear when profit bonus was meant by using the words "for the year so and so" after the word "bonus". We are, therefore, not prepared to accept that where the word bonus" is used without any qualification it only means profit bonus and nothing else. On the other hand, it seems to as that the use of the word "bonus" without any qualifying word before it or without any limitation as to year after it must refer to bonus of all kinds known to industrial law and industrial adjudication before 1952. The reason for the exclusion of all kinds of bonus is also in our opinion the same which led to the exclusion ofallowance, overtime allowance, commission and any other similar allowance, namely, that payment of bonus may be occur in all industrial concerns or it may not be made to all employees of an industrial concern (as, for example, attendance bonus) and that is why bonus of all kinds was also excluded from the definition of the term " basic wages". The Act is all India Act applicable to all Industries mentioned in Sch. I and to all concerns engaged in those industries, and the intention behind the exclusion seems to be to make the incidence of provident fund the same in all industrial concerns, which are covered by the Act so that it was necessary to exclude from the wide definition of "basic wages" given in the opening part, all such payments which would not be common to all industries or to all employees in the same concern We have already pointed out that to this principle, only dearness allowance, in cl. (ii) is an exception but that exception has been corrected by the inclusion of dearness allowance in S.6.We are therefore of opinion that there is no reason why when the word bonus" is used in cl (ii) without any qualifying word, it should not be interpreted to include all kinds of bonus which were known to industrial adjudication before 1952 and which must therefore, be deemed to be within the knowledge of the legislature.This brings us to the consideration of the contention raised on behalf of the respondents that wages are the price for labour and arise out of contract and that whatever is the price for labour and arises out of contract was intended to be included in the definition of "basic wages" in S. 2(b), and that only those things were excluded which were a reward for labour not arising out of the contract of employment but depending on various other consideration like profit for attendance. It may be, us we have pointed out earlier, that if there were no exception to the main part of the definition in S.2(b), whatever was payable in cash as price for labour and arose out of contract would be included in the term "basic wages, and that reward for labour of which did not arise out of contract might not be included in the definition. But the main part of the definition is subject to expections in cl. (ii), and these exceptions clearly show that they include even the price for labour. It is, therefore, not possible to accept the contention on behalf of the respondents that whatever is price for labour and arises out of contract is included in the definition of "basic wages" and therefore production bonus which is a kind of incentive wage would beis this production bonus which is outside the definit on of "basic wages" in S.2(b), for reasons which we have already given above. The production bonus in the present case is a typical production bonus scheme of this kind and whatever therefore is earned as production bonus is payable beyond a base or standard and it cannot form part of the definition of "basic wages" in S.2(b) because of the exception of all kinds of bonus from that definition. We are, therefore, of opinion that production bonus of this type is excluded from the definition of "basic wages" in S.2(b) and therefore the decision of the Central Government which was presumably under S. 19A of the Act to remove the difficulty arising out of giving effect to the provisions of the Act, by which such a bonus has been included in the definition of "basic wages" is incorrect. In view of this decision, it is unnecessary to consider the effect of Art. 14 in the present case. | 1 | 4,933 | 3,252 | ### 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:
an industrial concern (as, for example, attendance bonus) and that is why bonus of all kinds was also excluded from the definition of the term " basic wages". The Act is all India Act applicable to all Industries mentioned in Sch. I and to all concerns engaged in those industries, and the intention behind the exclusion seems to be to make the incidence of provident fund the same in all industrial concerns, which are covered by the Act so that it was necessary to exclude from the wide definition of "basic wages" given in the opening part, all such payments which would not be common to all industries or to all employees in the same concern We have already pointed out that to this principle, only dearness allowance, in cl. (ii) is an exception but that exception has been corrected by the inclusion of dearness allowance in S.6.We are therefore of opinion that there is no reason why when the word bonus" is used in cl (ii) without any qualifying word, it should not be interpreted to include all kinds of bonus which were known to industrial adjudication before 1952 and which must therefore, be deemed to be within the knowledge of the legislature.12. This brings us to the consideration of the contention raised on behalf of the respondents that wages are the price for labour and arise out of contract and that whatever is the price for labour and arises out of contract was intended to be included in the definition of "basic wages" in S. 2(b), and that only those things were excluded which were a reward for labour not arising out of the contract of employment but depending on various other consideration like profit for attendance. It may be, us we have pointed out earlier, that if there were no exception to the main part of the definition in S.2(b), whatever was payable in cash as price for labour and arose out of contract would be included in the term "basic wages, and that reward for labour of which did not arise out of contract might not be included in the definition. But the main part of the definition is subject to expections in cl. (ii), and these exceptions clearly show that they include even the price for labour. It is, therefore, not possible to accept the contention on behalf of the respondents that whatever is price for labour and arises out of contract is included in the definition of "basic wages" and therefore production bonus which is a kind of incentive wage would be included.13. This court had occasion to consider production bonus 1959 Supp (2) SCR 1012. (AIR 1959 SC 1095 ). It was pointed out that "the payment production bonus depends upon production and is in addition to wages. In effect, it is an incentive to higher production and is in the nature of an incentive wage,. The straight piece-rate plan where payment is made according to each piece produced is the simplest of incentive wage plans. In a straight piece-rate plan, payment is made according to each piece produced and there is no minimum and the worker is free to produce as much or as little as he likes, his payment depending upon the number of pieces produced. But in such a case payment for all that is produced would be basic wage as defined in S.2(b) of the Act, even though the worker is working under an incentive wage plan. The difficulty arises where the straight piece-rate system. cannot work as when the finished product is the result of the co-operative effort of a large number of workers each doing a small part which contributes to the result. In such a case, the system of production bonus by tonnage or by any other standard is introduced. The core of such a plan is that there is a base or a standard above which extra payment is earned for extra production in addition to the basic wages which is the payment for work up to the base or standard Such a plan typically gurantees time wage up to the time represented by standard performance and gives workers a share in the savings represented by superior performance. The scheme in force in the Company is a typical scheme of production bonus of this kind with a base or standard up to which basic wages as time wages are paid and thereafter extra payments are made for superior performance. This extra payment may be called incentive wage and is also called production bonus. In all such cases however the workers are not hound to produce anything beyond the base or standard that is set out.14. The performance may even fall below the base or standard but the minimum basic wages will have to be paid whether the basic or standard is reached or not. When however the workers produce beyond the base or standard what they earn is not basic wages but production bonus or incentive wage. It is this production bonus which is outside the definit on of "basic wages" in S.2(b), for reasons which we have already given above. The production bonus in the present case is a typical production bonus scheme of this kind and whatever therefore is earned as production bonus is payable beyond a base or standard and it cannot form part of the definition of "basic wages" in S.2(b) because of the exception of all kinds of bonus from that definition. We are, therefore, of opinion that production bonus of this type is excluded from the definition of "basic wages" in S.2(b) and therefore the decision of the Central Government which was presumably under S. 19A of the Act to remove the difficulty arising out of giving effect to the provisions of the Act, by which such a bonus has been included in the definition of "basic wages" is incorrect. In view of this decision, it is unnecessary to consider the effect of Art. 14 in the present case.15.
### Response:
1
### Explanation:
before the word "bonus" in such cases, it may also be that in many cases where a particular type of bonus was in dispute, say, "attendance" or puja bonus, the qualifying word attendance or "puja" was used in references But it appears that where a reference was in connection with profit bonus, the usual practice was to make the reference after qualifying the word bonus" by the year for which the profit bonus was claimed. For example, we may refer to the case ofLab LJ 1247Bom), there in par. 16 at p. 1252, we find the term of reference in Reference No. 1 of 1948 Millowners Association Bombay v. Employees in the Cotton Textile Mills Bombay in these terms.Bonus for the year 1947seems therefore that when reference was with respect to profit bonus, the term bonus" though not qualified by the word "profit" had always been limited by specifying the year for which the bonus was being claimed, though therefore, it may be true that literally speaking, the word "profit" was not used to qualify the word "bonus" when reference were made with respect to profit bonus, the matter was put beyond controversy that the use of the word "bonus" without any qualification was with reference to profit bonus by adding the year for which the bonus was being claimed. It would therefore be not right to say that in industrial adjudication before 1952, bonus without any qualifying word meant profit bonus and nothing else. Further though the word "profit" was not used to qualify the word "bonus", the intention was made quite clear when profit bonus was meant by using the words "for the year so and so" after the word "bonus". We are, therefore, not prepared to accept that where the word bonus" is used without any qualification it only means profit bonus and nothing else. On the other hand, it seems to as that the use of the word "bonus" without any qualifying word before it or without any limitation as to year after it must refer to bonus of all kinds known to industrial law and industrial adjudication before 1952. The reason for the exclusion of all kinds of bonus is also in our opinion the same which led to the exclusion ofallowance, overtime allowance, commission and any other similar allowance, namely, that payment of bonus may be occur in all industrial concerns or it may not be made to all employees of an industrial concern (as, for example, attendance bonus) and that is why bonus of all kinds was also excluded from the definition of the term " basic wages". The Act is all India Act applicable to all Industries mentioned in Sch. I and to all concerns engaged in those industries, and the intention behind the exclusion seems to be to make the incidence of provident fund the same in all industrial concerns, which are covered by the Act so that it was necessary to exclude from the wide definition of "basic wages" given in the opening part, all such payments which would not be common to all industries or to all employees in the same concern We have already pointed out that to this principle, only dearness allowance, in cl. (ii) is an exception but that exception has been corrected by the inclusion of dearness allowance in S.6.We are therefore of opinion that there is no reason why when the word bonus" is used in cl (ii) without any qualifying word, it should not be interpreted to include all kinds of bonus which were known to industrial adjudication before 1952 and which must therefore, be deemed to be within the knowledge of the legislature.This brings us to the consideration of the contention raised on behalf of the respondents that wages are the price for labour and arise out of contract and that whatever is the price for labour and arises out of contract was intended to be included in the definition of "basic wages" in S. 2(b), and that only those things were excluded which were a reward for labour not arising out of the contract of employment but depending on various other consideration like profit for attendance. It may be, us we have pointed out earlier, that if there were no exception to the main part of the definition in S.2(b), whatever was payable in cash as price for labour and arose out of contract would be included in the term "basic wages, and that reward for labour of which did not arise out of contract might not be included in the definition. But the main part of the definition is subject to expections in cl. (ii), and these exceptions clearly show that they include even the price for labour. It is, therefore, not possible to accept the contention on behalf of the respondents that whatever is price for labour and arises out of contract is included in the definition of "basic wages" and therefore production bonus which is a kind of incentive wage would beis this production bonus which is outside the definit on of "basic wages" in S.2(b), for reasons which we have already given above. The production bonus in the present case is a typical production bonus scheme of this kind and whatever therefore is earned as production bonus is payable beyond a base or standard and it cannot form part of the definition of "basic wages" in S.2(b) because of the exception of all kinds of bonus from that definition. We are, therefore, of opinion that production bonus of this type is excluded from the definition of "basic wages" in S.2(b) and therefore the decision of the Central Government which was presumably under S. 19A of the Act to remove the difficulty arising out of giving effect to the provisions of the Act, by which such a bonus has been included in the definition of "basic wages" is incorrect. In view of this decision, it is unnecessary to consider the effect of Art. 14 in the present case.
|
JK JUTE MILL MAZDOOR MORCHA Vs. JUGGILAL KAMLAPAT JUTE MILLS COMPANY LTD. THR. ITS DIRECTOR | (TDS), Kanpur and Anr. v. Canara Bank, (2018) 9 SCC 322 [ ?Canara Bank?]. This judgment dealt with the expression ?established by or under a Central, State or Provincial Act? contained in Section 194-A(3)(iii) of the Income Tax Act, 1961. After exhaustively reviewing the case law on the subject, this Court came to the conclusion that the NOIDA authority was established as an authority under the State Act. While dealing with several judgments of this Court, the Court, in paragraphs 20, 24, and 25, followed judgments stating that a company incorporated and registered under the Companies Act cannot be said to be ?established? under the Companies Act. The context of Section 3(23) of the Code shows that this judgment has no application to the definition contained in Section 3(23). Here, a ?person? includes a company in clause (c), and would include any other entity established under a statute under clause (g). It is clear that clause (g) has to be read noscitur a sociis with the previous clauses of Section 3(23). This being the case, entities such as companies, trusts, partnerships, and limited liability partnerships are all entities governed by the Companies Act, the Indian Trusts Act, and the Partnership Act, which are not ?established? under those Acts in the sense understood in Canara Bank (supra) and the judgments followed by it. The context, therefore, in which the phrase ?established under a statute? occurs, makes it clear that a trade union, like a company, trust, partnership, or limited liability partnership, when registered under the Trade Union Act, would be ?established? under that Act in the sense of being governed by that Act. For this reason, the judgment in Canara Bank (supra) would not apply to Section 3(23) of the Code. 10. Even otherwise, we are of the view that instead of one consolidated petition by a trade union representing a number of workmen, filing individual petitions would be burdensome as each workman would thereafter have to pay insolvency resolution process costs, costs of the interim resolution professional, costs of appointing valuers, etc. under the provisions of the Code read with Regulations 31 and 33 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Looked at from any angle, there is no doubt that a registered trade union which is formed for the purpose of regulating the relations between workmen and their employer can maintain a petition as an operational creditor on behalf of its members. We must never forget that procedure is the handmaid of justice, and is meant to serve justice. This Court, in Kailash v. Nanhku and Ors., (2005) 4 SCC 480 , put it thus:"28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC 774] are pertinent: (SCC p. 777, paras 5-6)?The mortality of justice at the hands of law troubles a judge?s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive.?29. In State of Punjab v. Shamlal Murari [(1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720)?Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.?In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.?This judgment was followed by the Constitution Bench decision in Sarah Mathew v. Institute of Cardio Vascular Diseases and Ors., (2014) 2 SCC 62 [ at paragraph 49]. 11. The NCLAT, by the impugned judgment, is not correct in refusing to go into whether the trade union would come within the definition of ?person? under Section 3(23) of the Code. Equally, the NCLAT is not correct in stating that a trade union would not be an operational creditor as no services are rendered by the trade union to the corporate debtor. What is clear is that the trade union represents its members who are workers, to whom dues may be owed by the employer, which are certainly debts owed for services rendered by each individual workman, who are collectively represented by the trade union. Equally, to state that for each workman there will be a separate cause of action, a separate claim, and a separate date of default would ignore the fact that a joint petition could be filed under Rule 6 read with Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, with authority from several workmen to one of them to file such petition on behalf of all. | 1[ds]6. On a reading of the aforesaid statutory provisions, what becomes clear is that a trade union is certainly an entity established under a statute – namely, the Trade Unions Act, and would therefore fall within the definition of ?person? under Sections 3(23) of the Code. This being so, it is clear that an ?operational debt?, meaning a claim in respect of employment, could certainly be made by a person duly authorised to make such claim on behalf of a workman. Rule 6, Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 also recognises the fact that claims may be made not only in an individual capacity, but also conjointly. Further, a registered trade union recognised by Section 8 of the Trade Unions Act, makes it clear that it can sue and be sued as a body corporate under Section 13 of that Act. Equally, the general fund of the trade union, which inter alia is from collections from workmen who are its members, can certainly be spent on the conduct of disputes involving a member or members thereof or for the prosecution of a legal proceeding to which the trade union is a party, and which is undertaken for the purpose of protecting the rights arising out of the relation of its members with their employer, which would include wages and other sums due from the employer to workmen.No doubt, this judgment was in the context of a winding up petition, but the rationale based upon Section 15(c) and (d) equally applies to a petition filed under the Code.However, learned counsel appearing on behalf of respondent No. 1 have cited the judgment reported as Commissioner of Income Tax (TDS), Kanpur and Anr. v. Canara Bank, (2018) 9 SCC 322 [ ?Canara Bank?]. This judgment dealt with the expression?established by or under a Central, State or Provincial Act?contained in Section 194-A(3)(iii) of the Income Tax Act, 1961. After exhaustively reviewing the case law on the subject, this Court came to the conclusion that the NOIDA authority was established as an authority under the State Act. While dealing with several judgments of this Court, the Court, in paragraphs 20, 24, and 25, followed judgments stating that a company incorporated and registered under the Companies Act cannot be said to be ?established? under the Companies Act. The context of Section 3(23) of the Code shows that this judgment has no application to the definition contained in Section 3(23). Here, a ?person? includes a company in clause (c), and would include any other entity established under a statute under clause (g). It is clear that clause (g) has to be read noscitur a sociis with the previous clauses of Section 3(23). This being the case, entities such as companies, trusts, partnerships, and limited liability partnerships are all entities governed by the Companies Act, the Indian Trusts Act, and the Partnership Act, which are not ?established? under those Acts in the sense understood in Canara Bank (supra) and the judgments followed by it. The context, therefore, in which the phrase ?established under a statute? occurs, makes it clear that a trade union, like a company, trust, partnership, or limited liability partnership, when registered under the Trade Union Act, would be ?established? under that Act in the sense of being governed by that Act. For this reason, the judgment in Canara Bank (supra) would not apply to Section 3(23) of the Code.Even otherwise, we are of the view that instead of one consolidated petition by a trade union representing a number of workmen, filing individual petitions would be burdensome as each workman would thereafter have to pay insolvency resolution process costs, costs of the interim resolution professional, costs of appointing valuers, etc. under the provisions of the Code read with Regulations 31 and 33 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Looked at from any angle, there is no doubt that a registered trade union which is formed for the purpose of regulating the relations between workmen and their employer can maintain a petition as an operational creditor on behalf of its members. We must never forget that procedure is the handmaid of justice, and is meant to serve justice.The NCLAT, by the impugned judgment, is not correct in refusing to go into whether the trade union would come within the definition of ?person? under Section 3(23) of the Code. Equally, the NCLAT is not correct in stating that a trade union would not be an operational creditor as no services are rendered by the trade union to the corporate debtor. What is clear is that the trade union represents its members who are workers, to whom dues may be owed by the employer, which are certainly debts owed for services rendered by each individual workman, who are collectively represented by the trade union. Equally, to state that for each workman there will be a separate cause of action, a separate claim, and a separate date of default would ignore the fact that a joint petition could be filed under Rule 6 read with Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, with authority from several workmen to one of them to file such petition on behalf of all. | 1 | 3,544 | 1,049 | ### 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:
(TDS), Kanpur and Anr. v. Canara Bank, (2018) 9 SCC 322 [ ?Canara Bank?]. This judgment dealt with the expression ?established by or under a Central, State or Provincial Act? contained in Section 194-A(3)(iii) of the Income Tax Act, 1961. After exhaustively reviewing the case law on the subject, this Court came to the conclusion that the NOIDA authority was established as an authority under the State Act. While dealing with several judgments of this Court, the Court, in paragraphs 20, 24, and 25, followed judgments stating that a company incorporated and registered under the Companies Act cannot be said to be ?established? under the Companies Act. The context of Section 3(23) of the Code shows that this judgment has no application to the definition contained in Section 3(23). Here, a ?person? includes a company in clause (c), and would include any other entity established under a statute under clause (g). It is clear that clause (g) has to be read noscitur a sociis with the previous clauses of Section 3(23). This being the case, entities such as companies, trusts, partnerships, and limited liability partnerships are all entities governed by the Companies Act, the Indian Trusts Act, and the Partnership Act, which are not ?established? under those Acts in the sense understood in Canara Bank (supra) and the judgments followed by it. The context, therefore, in which the phrase ?established under a statute? occurs, makes it clear that a trade union, like a company, trust, partnership, or limited liability partnership, when registered under the Trade Union Act, would be ?established? under that Act in the sense of being governed by that Act. For this reason, the judgment in Canara Bank (supra) would not apply to Section 3(23) of the Code. 10. Even otherwise, we are of the view that instead of one consolidated petition by a trade union representing a number of workmen, filing individual petitions would be burdensome as each workman would thereafter have to pay insolvency resolution process costs, costs of the interim resolution professional, costs of appointing valuers, etc. under the provisions of the Code read with Regulations 31 and 33 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Looked at from any angle, there is no doubt that a registered trade union which is formed for the purpose of regulating the relations between workmen and their employer can maintain a petition as an operational creditor on behalf of its members. We must never forget that procedure is the handmaid of justice, and is meant to serve justice. This Court, in Kailash v. Nanhku and Ors., (2005) 4 SCC 480 , put it thus:"28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC 774] are pertinent: (SCC p. 777, paras 5-6)?The mortality of justice at the hands of law troubles a judge?s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive.?29. In State of Punjab v. Shamlal Murari [(1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720)?Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.?In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.?This judgment was followed by the Constitution Bench decision in Sarah Mathew v. Institute of Cardio Vascular Diseases and Ors., (2014) 2 SCC 62 [ at paragraph 49]. 11. The NCLAT, by the impugned judgment, is not correct in refusing to go into whether the trade union would come within the definition of ?person? under Section 3(23) of the Code. Equally, the NCLAT is not correct in stating that a trade union would not be an operational creditor as no services are rendered by the trade union to the corporate debtor. What is clear is that the trade union represents its members who are workers, to whom dues may be owed by the employer, which are certainly debts owed for services rendered by each individual workman, who are collectively represented by the trade union. Equally, to state that for each workman there will be a separate cause of action, a separate claim, and a separate date of default would ignore the fact that a joint petition could be filed under Rule 6 read with Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, with authority from several workmen to one of them to file such petition on behalf of all.
### Response:
1
### Explanation:
6. On a reading of the aforesaid statutory provisions, what becomes clear is that a trade union is certainly an entity established under a statute – namely, the Trade Unions Act, and would therefore fall within the definition of ?person? under Sections 3(23) of the Code. This being so, it is clear that an ?operational debt?, meaning a claim in respect of employment, could certainly be made by a person duly authorised to make such claim on behalf of a workman. Rule 6, Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 also recognises the fact that claims may be made not only in an individual capacity, but also conjointly. Further, a registered trade union recognised by Section 8 of the Trade Unions Act, makes it clear that it can sue and be sued as a body corporate under Section 13 of that Act. Equally, the general fund of the trade union, which inter alia is from collections from workmen who are its members, can certainly be spent on the conduct of disputes involving a member or members thereof or for the prosecution of a legal proceeding to which the trade union is a party, and which is undertaken for the purpose of protecting the rights arising out of the relation of its members with their employer, which would include wages and other sums due from the employer to workmen.No doubt, this judgment was in the context of a winding up petition, but the rationale based upon Section 15(c) and (d) equally applies to a petition filed under the Code.However, learned counsel appearing on behalf of respondent No. 1 have cited the judgment reported as Commissioner of Income Tax (TDS), Kanpur and Anr. v. Canara Bank, (2018) 9 SCC 322 [ ?Canara Bank?]. This judgment dealt with the expression?established by or under a Central, State or Provincial Act?contained in Section 194-A(3)(iii) of the Income Tax Act, 1961. After exhaustively reviewing the case law on the subject, this Court came to the conclusion that the NOIDA authority was established as an authority under the State Act. While dealing with several judgments of this Court, the Court, in paragraphs 20, 24, and 25, followed judgments stating that a company incorporated and registered under the Companies Act cannot be said to be ?established? under the Companies Act. The context of Section 3(23) of the Code shows that this judgment has no application to the definition contained in Section 3(23). Here, a ?person? includes a company in clause (c), and would include any other entity established under a statute under clause (g). It is clear that clause (g) has to be read noscitur a sociis with the previous clauses of Section 3(23). This being the case, entities such as companies, trusts, partnerships, and limited liability partnerships are all entities governed by the Companies Act, the Indian Trusts Act, and the Partnership Act, which are not ?established? under those Acts in the sense understood in Canara Bank (supra) and the judgments followed by it. The context, therefore, in which the phrase ?established under a statute? occurs, makes it clear that a trade union, like a company, trust, partnership, or limited liability partnership, when registered under the Trade Union Act, would be ?established? under that Act in the sense of being governed by that Act. For this reason, the judgment in Canara Bank (supra) would not apply to Section 3(23) of the Code.Even otherwise, we are of the view that instead of one consolidated petition by a trade union representing a number of workmen, filing individual petitions would be burdensome as each workman would thereafter have to pay insolvency resolution process costs, costs of the interim resolution professional, costs of appointing valuers, etc. under the provisions of the Code read with Regulations 31 and 33 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Looked at from any angle, there is no doubt that a registered trade union which is formed for the purpose of regulating the relations between workmen and their employer can maintain a petition as an operational creditor on behalf of its members. We must never forget that procedure is the handmaid of justice, and is meant to serve justice.The NCLAT, by the impugned judgment, is not correct in refusing to go into whether the trade union would come within the definition of ?person? under Section 3(23) of the Code. Equally, the NCLAT is not correct in stating that a trade union would not be an operational creditor as no services are rendered by the trade union to the corporate debtor. What is clear is that the trade union represents its members who are workers, to whom dues may be owed by the employer, which are certainly debts owed for services rendered by each individual workman, who are collectively represented by the trade union. Equally, to state that for each workman there will be a separate cause of action, a separate claim, and a separate date of default would ignore the fact that a joint petition could be filed under Rule 6 read with Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, with authority from several workmen to one of them to file such petition on behalf of all.
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Prem Raj Vs. Ram Charan | debtor, the creditor could not have presented any application in ordinary course for the further execution of his decree with the least hope of success. Two at least of the High Courts in India had already put so liberal a construction upon the insolvency provisions of the old Civil Procedure Code that an executing creditor must have foreseen that no application for the execution of the decree either by sale of property or arrest of the person of the judgment-debtor could have the least chance of success so long as the judgment-debtor had been declared an insolvent under Section 351, even although he had not been actually discharged within the meaning of Section 357. So that we think that in view of the Courts finding that this judgment-debtor was an insolvent early in 1906, the present appellant had no other course open to him than in the first instance to get this bar to the further execution of his decree removed, and the only way in which he could hope to obtain that result would be by first opposing the insolvency petition in the first court, and if he failed there, by appealing to higher authority".60. The principle adverted to in the above passage of the Bombay High Court appears to be correct. In that case also, as in the present appeal, there was no controversy about the proper court" within the meaning of the 2nd explanation to Article 182.61. Coming now to the facts of the case at hand, it is found that the appellant (decree-holder) was faced with resistance from the respondent judgment-debtor and his relations. The appellant, however, made abortive attempts to execute the mortgage decree in order to obtain possession of the suit property. Having failed to obtain possession by means of usual civil process, the appellant applied to the court for police aid but the prayer was rejected. Soon after the appellant was dragged to the court by the respondents son in a suit wherein both the appellant and the respondent were parties although the respondent was ex parte. If the respondents son had succeeded in the suit the entire foreclosure decree would have been a scrap of paper for the appellant. The appellant, therefore found in his front a hurdle which must first be crossed before he could successfully execute his decree in order to obtain possession of the suit house. No doubt his defence was successful in the trial court but the first appellate court partly accepted the appeal of the judgment-debtors son with reference to half of the share of the suit house and the decree thereafter was no longer the original foreclosure decree which he could execute.62. The form of the decree has already been set out above. The decree in the Civil Suit No. 75-A of 1957 had thus a direct and immediate connection with and effect upon the decree in Suit No. 27-A of 1952 sought to be executed. The nexus between the two is manifestly clear. In such circumstances it is obvious that the appellants successive ecphracice actions in defending the foreclosure decree in different ways in the course of the lengthy litigation until its final determination in the High Court are all steps-in-aid of execution of his foreclosure decree. These steps to remove the impediment in executing the foreclosure decree were absolutely incumbent upon the appellant to take the next move in furtherance of the execution of the foreclosure decree to facilitate the same. These being, therefore, necessarily "step-in-aid of execution" of the foreclosure decree, the appellants fifth execution application was within time, being within three years from the date of the final order in the High Court on January 1, 1962.63. It should also be remembered that there was a perpetual injunction restraining the appellant from executing the foreclosure decree in Prakash Chandras Appeal No. 37-A / 59 during the period from 31-12-1958 to 21-10-1959. Thereafter when the appeal was partly allowed the perpetual injunction was directed in the decree against half of the suit house. In other words the injunction against the decree in Suit No. 27-A / 52 was never raised fully at any time.64. It is clear that the original foreclosure decree in the form it was, was not capable of execution and the appellants all attempts in the series of litigation were to restore the said decree to its original form for proper and effective enforcement of the same. The appellant carried this race up to the High Court and having finally stopped there, turned to execute whatever is now left for enforcement. Although not directly on the point, the Privy Council in Maharaja Sir Rameshwar Singh Bahadur v. Homeshvar Singh, 40 Mad LJ 1 at p. 6 = (AIR 1921 PC 31) while dealing with Articles 181 and 182 of the Limitation Act 1908 laid down a kind of pragmatic principle in the following words:-"They (the Privy Council) are of opinion that, in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of the 27th July, 1906, under consideration cannot, in their opinion, be regarded as being thus capable of execution."65. In the view thus taken in this appeal it is not necessary to decide whether Article 182 (4) could be invoked in this case on the basis of an implied amendment of the foreclosure decree as a necessary consequence of the decree in the subsequent suit. It is also not necessary in this appeal to deal with the alternative submission of the appellant with regard to the theory of revival of his execution case earlier consigned to the records in 1956.66. In the result the appeal is allowed and the judgment of the High Court is set aside, but in the entire circumstances of the case the parties will bear their own costs in this Court.ORDER67. | 0[ds]7. The final decree in favour of the appellant was drawn up under Order XXXIV, Rule 3, Civil Procedure Code. The decree absolutely debarred the respondent and all persons claiming under him from redeeming the mortgage. It also directed the respondent to deliver possession of the disputed house which was mortgaged. The decree was binding on the respondent and any one claiming under him. It could not and did not purport to bind a third person claiming any interest in the house in his own right. In his suit Prakash Chandra challenged the decree, inter alia, on the ground that he was the sole owner of the house. He claimed a declaration that the decree was not binding on him and a permanent injunction restraining the appellant from taking possession of the house in execution of the decree. The appeal court found that Prakash Chandra was the owner of a half share in the house by virtue of the gift from Save who had a half share and that accordingly the decree was not binding on him to the extent of a half share. The appeal court granted a declaration to that effect and an injunction restraining the appellant from taking possession of the half share of Prakash Chandra in the house in execution of the decree. The decree of the appeal court was affirmed by the High Court.8. It is plain that neither the decree of the appeal court nor the decree of the High Court reversed, varied or amended in any manner the final foreclosure decree of the appellant. The foreclosure decree remained intact and fully alive. It could be executed against the respondent according to its tenor. He could be ejected from whole house. But it could never have any effect against Prakash Chandras paramount title to a half share in thedo not think that the rule of liberal construction gives a free hand to the Court to stretch and strain the statutory language to accord with our abstract notions of justice and fair play. In our view, if the statutory language is susceptible of two constructions, the rule of liberal constructions should incline the Court to prefer the one which accomplishes the legislative purpose. But where the statutory language will bear one and only one meaning, there is no room for the application of the rule of liberal construction. Howsoever liberally one may construe the word application, it is not possible to regard the written statement of the appellant in Prakash Chandras suit as an application, for it made no request to the court.15. Just as the written statement of the appellant cannot be regarded as an application, so also the resistance to the appeal filed by Prakash Chandra cannot be held to be an application. Counsel for the appellant, however, submits that the appellants second appeal in the High Court would be an application.As we have held that the appellants appeal in the High Court was not an application to the proper court it is unnecessary to decide whether in the suit and in the appeal filed by Prakash Chandra the written statement of the appellant and his resistance to the appeal and his second appeal in the High Court amounted to a step-in-aid in execution of the decree sought to be executed by him.In the first case the decree-holder and the judgment-debtor compromised and agreed that the latter should be given three months time for payment of the decretal sum and that if he failed to pay within the said period the execution should proceed. The court then ordered; "The execution case be struck off for the present". The judgment-debtor did not pay the amount within the agreed period. Then the decree-holder filed an application for execution. On the judgment-debtors objection that it was time-barred, the Allahabad High Court held that the application was one to revive the execution proceedings. The facts of the case are plainly distinguishable from the facts of the case before us. The execution application was not finally disposed of and, in any case, the decree-holder was not at fault.26. In the second case the decree-holder had applied for execution by attachment and sale of certain property. One Kanshi Ram filed an objection that he had a lien on it. The objection was allowed and the proceedings in execution were stayed because the decree-holder had instituted a suit under O.XXI R. 63,Code of Civil Procedure and did not wish to proceed with the execution till the decision of the suit. The suit was decreed, but a little before that the application for exceution was dismissed in default of the decree-holder and the attached property was released. The subsequent application was made to revive the previous application and to sell the property which had already been attached after the decision of the suit. In the meanwhile Kanshi Ram preferred an appeal to the High Court. So the execution court directed that the application be filed for the present. They can be restored when appeals in the High Court are decided. When the appeals were dismissed, the decree-holder applied for the sale of the property which had already been attached. The judgment-debtor then objected on the score of limitation. The Lahore High Court held that the subsequent application was one to revive the previous application (which was dimissed in default). It is true that the previous application was finally disposed of and that too for default of the decree-holder, but it may be recalled that at the request of the decree-holder the execution court had stayed the execution proceedings until the decision of the question of Kanshi Rams lien. The court therefore could not dismiss the execution application for default of the decree-holder before the decision of his suit under Order XXI, Rule 63,Code of Civil Procedure. As the order of the court was not correct, the application was deemed to be pending. Thus understood, the decision would not be helpful to the appellant.27. The third and fourth cases have nothing to do with the question of revival of an execution application. In the last case the execution application was ordered to be dismissed. More than three years thereafter the decree - holder made another application. The judgment-debtor objected on the ground of limitation. His objection was overruled. A learned single Judge of the Madras High Court held that on the facts and circumstances of the case, as construed by him, the previous application was really pending and that the subsequent application fell under Cl. (5) of Article 182. On the facts as construed by him the case becomes distinguishable from the facts of the present case. We should, however, make it clear that we should not be understood to have given our approval to theis so, but the blame lies squarely on him. He could have executed his decree with respect to the half share in the house after the decision of the appeal court. But he did not avail of the opportunity and waited for the decision of the High Court in the appeal and cross-objection filed by Prakash Chandra. He was not vigilant and should suffer the consequences.29. As a result of the foregoing discussion, we are of opinion that the High Court rightly dismissed the fifth application as time-barred. So we dismiss the appeal. But in the circumstances of this case parties shall bear their own costs. | 0 | 12,878 | 1,331 | ### Instruction:
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debtor, the creditor could not have presented any application in ordinary course for the further execution of his decree with the least hope of success. Two at least of the High Courts in India had already put so liberal a construction upon the insolvency provisions of the old Civil Procedure Code that an executing creditor must have foreseen that no application for the execution of the decree either by sale of property or arrest of the person of the judgment-debtor could have the least chance of success so long as the judgment-debtor had been declared an insolvent under Section 351, even although he had not been actually discharged within the meaning of Section 357. So that we think that in view of the Courts finding that this judgment-debtor was an insolvent early in 1906, the present appellant had no other course open to him than in the first instance to get this bar to the further execution of his decree removed, and the only way in which he could hope to obtain that result would be by first opposing the insolvency petition in the first court, and if he failed there, by appealing to higher authority".60. The principle adverted to in the above passage of the Bombay High Court appears to be correct. In that case also, as in the present appeal, there was no controversy about the proper court" within the meaning of the 2nd explanation to Article 182.61. Coming now to the facts of the case at hand, it is found that the appellant (decree-holder) was faced with resistance from the respondent judgment-debtor and his relations. The appellant, however, made abortive attempts to execute the mortgage decree in order to obtain possession of the suit property. Having failed to obtain possession by means of usual civil process, the appellant applied to the court for police aid but the prayer was rejected. Soon after the appellant was dragged to the court by the respondents son in a suit wherein both the appellant and the respondent were parties although the respondent was ex parte. If the respondents son had succeeded in the suit the entire foreclosure decree would have been a scrap of paper for the appellant. The appellant, therefore found in his front a hurdle which must first be crossed before he could successfully execute his decree in order to obtain possession of the suit house. No doubt his defence was successful in the trial court but the first appellate court partly accepted the appeal of the judgment-debtors son with reference to half of the share of the suit house and the decree thereafter was no longer the original foreclosure decree which he could execute.62. The form of the decree has already been set out above. The decree in the Civil Suit No. 75-A of 1957 had thus a direct and immediate connection with and effect upon the decree in Suit No. 27-A of 1952 sought to be executed. The nexus between the two is manifestly clear. In such circumstances it is obvious that the appellants successive ecphracice actions in defending the foreclosure decree in different ways in the course of the lengthy litigation until its final determination in the High Court are all steps-in-aid of execution of his foreclosure decree. These steps to remove the impediment in executing the foreclosure decree were absolutely incumbent upon the appellant to take the next move in furtherance of the execution of the foreclosure decree to facilitate the same. These being, therefore, necessarily "step-in-aid of execution" of the foreclosure decree, the appellants fifth execution application was within time, being within three years from the date of the final order in the High Court on January 1, 1962.63. It should also be remembered that there was a perpetual injunction restraining the appellant from executing the foreclosure decree in Prakash Chandras Appeal No. 37-A / 59 during the period from 31-12-1958 to 21-10-1959. Thereafter when the appeal was partly allowed the perpetual injunction was directed in the decree against half of the suit house. In other words the injunction against the decree in Suit No. 27-A / 52 was never raised fully at any time.64. It is clear that the original foreclosure decree in the form it was, was not capable of execution and the appellants all attempts in the series of litigation were to restore the said decree to its original form for proper and effective enforcement of the same. The appellant carried this race up to the High Court and having finally stopped there, turned to execute whatever is now left for enforcement. Although not directly on the point, the Privy Council in Maharaja Sir Rameshwar Singh Bahadur v. Homeshvar Singh, 40 Mad LJ 1 at p. 6 = (AIR 1921 PC 31) while dealing with Articles 181 and 182 of the Limitation Act 1908 laid down a kind of pragmatic principle in the following words:-"They (the Privy Council) are of opinion that, in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of the 27th July, 1906, under consideration cannot, in their opinion, be regarded as being thus capable of execution."65. In the view thus taken in this appeal it is not necessary to decide whether Article 182 (4) could be invoked in this case on the basis of an implied amendment of the foreclosure decree as a necessary consequence of the decree in the subsequent suit. It is also not necessary in this appeal to deal with the alternative submission of the appellant with regard to the theory of revival of his execution case earlier consigned to the records in 1956.66. In the result the appeal is allowed and the judgment of the High Court is set aside, but in the entire circumstances of the case the parties will bear their own costs in this Court.ORDER67.
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It is plain that neither the decree of the appeal court nor the decree of the High Court reversed, varied or amended in any manner the final foreclosure decree of the appellant. The foreclosure decree remained intact and fully alive. It could be executed against the respondent according to its tenor. He could be ejected from whole house. But it could never have any effect against Prakash Chandras paramount title to a half share in thedo not think that the rule of liberal construction gives a free hand to the Court to stretch and strain the statutory language to accord with our abstract notions of justice and fair play. In our view, if the statutory language is susceptible of two constructions, the rule of liberal constructions should incline the Court to prefer the one which accomplishes the legislative purpose. But where the statutory language will bear one and only one meaning, there is no room for the application of the rule of liberal construction. Howsoever liberally one may construe the word application, it is not possible to regard the written statement of the appellant in Prakash Chandras suit as an application, for it made no request to the court.15. Just as the written statement of the appellant cannot be regarded as an application, so also the resistance to the appeal filed by Prakash Chandra cannot be held to be an application. Counsel for the appellant, however, submits that the appellants second appeal in the High Court would be an application.As we have held that the appellants appeal in the High Court was not an application to the proper court it is unnecessary to decide whether in the suit and in the appeal filed by Prakash Chandra the written statement of the appellant and his resistance to the appeal and his second appeal in the High Court amounted to a step-in-aid in execution of the decree sought to be executed by him.In the first case the decree-holder and the judgment-debtor compromised and agreed that the latter should be given three months time for payment of the decretal sum and that if he failed to pay within the said period the execution should proceed. The court then ordered; "The execution case be struck off for the present". The judgment-debtor did not pay the amount within the agreed period. Then the decree-holder filed an application for execution. On the judgment-debtors objection that it was time-barred, the Allahabad High Court held that the application was one to revive the execution proceedings. The facts of the case are plainly distinguishable from the facts of the case before us. The execution application was not finally disposed of and, in any case, the decree-holder was not at fault.26. In the second case the decree-holder had applied for execution by attachment and sale of certain property. One Kanshi Ram filed an objection that he had a lien on it. The objection was allowed and the proceedings in execution were stayed because the decree-holder had instituted a suit under O.XXI R. 63,Code of Civil Procedure and did not wish to proceed with the execution till the decision of the suit. The suit was decreed, but a little before that the application for exceution was dismissed in default of the decree-holder and the attached property was released. The subsequent application was made to revive the previous application and to sell the property which had already been attached after the decision of the suit. In the meanwhile Kanshi Ram preferred an appeal to the High Court. So the execution court directed that the application be filed for the present. They can be restored when appeals in the High Court are decided. When the appeals were dismissed, the decree-holder applied for the sale of the property which had already been attached. The judgment-debtor then objected on the score of limitation. The Lahore High Court held that the subsequent application was one to revive the previous application (which was dimissed in default). It is true that the previous application was finally disposed of and that too for default of the decree-holder, but it may be recalled that at the request of the decree-holder the execution court had stayed the execution proceedings until the decision of the question of Kanshi Rams lien. The court therefore could not dismiss the execution application for default of the decree-holder before the decision of his suit under Order XXI, Rule 63,Code of Civil Procedure. As the order of the court was not correct, the application was deemed to be pending. Thus understood, the decision would not be helpful to the appellant.27. The third and fourth cases have nothing to do with the question of revival of an execution application. In the last case the execution application was ordered to be dismissed. More than three years thereafter the decree - holder made another application. The judgment-debtor objected on the ground of limitation. His objection was overruled. A learned single Judge of the Madras High Court held that on the facts and circumstances of the case, as construed by him, the previous application was really pending and that the subsequent application fell under Cl. (5) of Article 182. On the facts as construed by him the case becomes distinguishable from the facts of the present case. We should, however, make it clear that we should not be understood to have given our approval to theis so, but the blame lies squarely on him. He could have executed his decree with respect to the half share in the house after the decision of the appeal court. But he did not avail of the opportunity and waited for the decision of the High Court in the appeal and cross-objection filed by Prakash Chandra. He was not vigilant and should suffer the consequences.29. As a result of the foregoing discussion, we are of opinion that the High Court rightly dismissed the fifth application as time-barred. So we dismiss the appeal. But in the circumstances of this case parties shall bear their own costs.
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Fomento Resorts and Hotels Ltd. & Another Vs. Minguel Martins & Others | and advise on the planning and implementation of physical development programmes within the Union Territory;(d) prepare and furnish reports relating to the working of this Act; and(e) perform such other functions as are incidental, supplemental or consequential to any of the functions aforesaid or which may be prescribed.(3) The Board may exercise all such powers as may be necessary or expedient for the purpose of carrying out its functions under this Act." 55. A reading of the above reproduced section makes it clear that the Board is required to guide, direct and assist the Planning and Development Authorities; to advise the Government in matters relating to the planning, development and use of rural and urban land in the Union Territory, and to perform other functions assigned to it by the Government. In terms of Section 8(2), the Board can direct the preparation of development plans by the Planning and Development Authorities; undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and monographs on planning and its methodology; co-ordinate and advise on the planning and implementation of physical development programmes and perform such other functions which are incidental to the enumerated functions. The role of the State Government primarily relates to approval of regional plan (S.44), revision of regional plan (S.17), declaration of planning areas, their amalgamation, sub-divisions, etc. (S.18), power to withdraw planning area from operation of the Act (S.19) and constitution of Planning and Development Authorities for the planning area (S.20). Section 22, which enumerates functions and powers of Planning and Development Authority reads as under: "22. Functions and powers of Planning and Development Authorities.--Subject to the provisions of this Act and the rules framed thereunder and subject to any directions which the Government may give, the functions of every Planning and Development Authority shall be –(a) to prepare an existing Land Use Map;(b) to prepare an Outline Development Plan;(c ) to prepare a Comprehensive Development plan;(d) to prepare and prescribe uses of land within its area; and(e) to prepare schemes of development and undertake their implementation, and for these purposes, it may carry out or cause to be carried out, surveys of the planning area and prepare report or reports of such surveys, and to perform such other functions as may be prescribed." 56. Chapter VII of the Town and Country Planning Act contains provisions relating to control of development and use of land. Section 44 lays down that any person intending to carry out any development in respect of, or change of use of, any land shall make an application in writing to the Planning and Development Authority for permission in such form containing such particulars and accompanied by such documents and plans as may be prescribed. Section 44(2)(b) and (c) deal with the situation in which the Development Authority objects to the proposal for development, in which case the matter has to be placed before the Government for its decision. Section 44(3) lays down that the Development Authority can grant permission, conditionally or unconditionally for carrying out any development or change of use of the land. While doing so, the Development Authority is required to take note of the provisions of the development plan, if any, in force, relevant bye-laws, regulations, etc. 57. None of the above noted provisions of the Town and Country Planning Act empowers the Board and/or the Development Authority to modify, amend, alter or change an agreement entered into as per the requirement of Section 41 of the 1894 Act or allow violation thereof by the company. Therefore, the decision taken by the Board in its meeting held on 20th June, 1991 and order dated 20th April, 1992 issued by the Development Authority were non est and the High Court rightly did not give any credence to those decisions while adjudicating the issue relating to legality of construction made on survey No.803 (new No.246/2). 58. We are also of the opinion that even the EDC which was empowered under second part of Clause 4(viii) of the agreement to grant approval to the activities relating to development could not have permitted construction/extension of the hotel building on a portion of survey No.803 (new No.246/2). Any such decision by the EDC would also have been declared nullity on the ground of violation of the mandate of first part of Clause 4(viii) of the statutory agreement. 59. The argument of Shri Divan that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) falls within the definition of "development" contained in Section 2(10) of the Town and Country Planning Act which comprehends carrying out of building activities and, therefore, the High Court should not have ordered demolition of the extended portion of the hotel, but we are unable to agree with him and reiterate that neither the Board nor the Development Authority could sanction violation of agreement dated 26.10.1983. 60. For the reasons stated above, we hold that the High Court did not commit any error by declaring that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) is illegal and directed its demolition after following the procedure prescribed under Clause 6 of agreement dated 26.10.1983.Re: 5. 61. This question deserves to be answered in favour of the appellants. A reading of application dated 15.11.1978 made by appellant No.1 makes it clear that it had no intention of making available the facilities of yoga centre, health club and amenities like water sports to the general public. Rather in paragraph 6 of its application, appellant No.1 made it clear that the facilities provided by the hotel will be open for use by non-residents also on membership basis. Agreement dated 26.10.1983 is totally silent on the issue of making the facilities created by the appellants open for public use without permission and payment of fees. Therefore, it is not possible to agree with Ms. Jaising that the facilities and amenities created by the appellant should be made available to the general public free of costs.62. | 0[ds]n our view, as appellant No.1 was engaged in executing a project of tourism development, i.e., construction of hotel along with amenities like yoga centre, health club and water sports facilities, acquisition of survey Nos.803 and 804 (new Nos.246/2 and 245/2) was clearly relatable to its project. This is also borne out from the language of agreement dated 26.10.1983, which records satisfaction of the Government that the land was needed for the purpose of executing tourism development project of appellant No.1. Clause 4 (ii) of the agreement shows that appellant No.1 was required to undertake the work of creation of sports and recreational facilities / amenities within one year of getting possession and complete the same within three years. This work was certainly ancillary to the tourism development project being executed by appellant No.1. Therefore, there is no escape from the conclusion that the acquisition was under Section 40(1)(aa) of the 1894 Act and the contrary finding recorded by the High Court is legally unsustainable. It is also necessary to bear in mind that tourism is an important industrial activity in Goa which attracts tourists from all over the country and abroad. A huge amount of foreign exchange is generated by this industry apart from providing employment and ancillary benefits to a large section of the population of the State. Therefore, acquisition of land for tourism development project is certainly for a public0. Wereiterate that natural resources including forests, water bodies, rivers, sea shores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the Court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural eco-systems.As a sequel to the above discussion, we hold that Clause 4(ix) of the agreement is binding on the appellants and appellant No.1 is under a statutory obligation to maintain access/road to the beach through survey No.803 (new No.246/2) without any obstruction of any kind and the High Court did not commit any error by issuing a mandamus in thatBy applying the ratio of the judgments in Nusserwanji Rattanji Mistris case and H.P. State Electricity Boards case to the facts of this case, we hold that when the State volunteered to take possession of the land subject to the right of the members of public to access the beach through the acquired land and a specific provision to that effect was incorporated in the agreement executed under Section 41 (5), Section 16 of the 1894 Act cannot be invoked for nullifying the right of the public to access the beach through survey No.803 (new. We also do not find any substance in the argument of Shri Anil Divan that Court should not insist on continuance of public access to the beach through survey No.803 (new No.246/2) because the pathway going to Dona Paula-Bambolim Road which was available through survey No.792 (new No.242/1) (Machados Cove) does not exist any more. The premise on which Shri Divan has made this argument, namely, non-availability of pathway through survey No.792 does not find support from the record of these appeals. Therefore, it is neither proper nor justified for this Court to deny the people of their traditional right of access to the beach through survey No.803 (new No.246/2) which goes to Dona-Paola-Bambolim Road by using the roads provided in survey No.792 (new No.242/1) (Machados Cove).We are also of the opinion that even the EDC which was empowered under second part of Clause 4(viii) of the agreement to grant approval to the activities relating to development could not have permitted construction/extension of the hotel building on a portion of survey No.803 (new No.246/2). Any such decision by the EDC would also have been declared nullity on the ground of violation of the mandate of first part of Clause 4(viii) of the statutory agreement.The argument of Shri Divan that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) falls within the definition of "development" contained in Section 2(10) of the Town and Country Planning Act which comprehends carrying out of building activities and, therefore, the High Court should not have ordered demolition of the extended portion of the hotel, but we are unable to agree with him and reiterate that neither the Board nor the Development Authority could sanction violation of agreement dated 26.10.1983.For the reasons stated above, we hold that the High Court did not commit any error by declaring that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) is illegal and directed its demolition after following the procedure prescribed under Clause 6 of agreement dated 26.10.1983.Re: 5.This question deserves to be answered in favour of the appellants. A reading of application dated 15.11.1978 made by appellant No.1 makes it clear that it had no intention of making available the facilities of yoga centre, health club and amenities like water sports to the general public. Rather in paragraph 6 of its application, appellant No.1 made it clear that the facilities provided by the hotel will be open for use by non-residents also on membership basis. Agreement dated 26.10.1983 is totally silent on the issue of making the facilities created by the appellants open for public use without permission and payment of fees. Therefore, it is not possible to agree with Ms. Jaising that the facilities and amenities created by the appellant should be made available to the general public free of costs. | 0 | 24,837 | 1,075 | ### 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:
and advise on the planning and implementation of physical development programmes within the Union Territory;(d) prepare and furnish reports relating to the working of this Act; and(e) perform such other functions as are incidental, supplemental or consequential to any of the functions aforesaid or which may be prescribed.(3) The Board may exercise all such powers as may be necessary or expedient for the purpose of carrying out its functions under this Act." 55. A reading of the above reproduced section makes it clear that the Board is required to guide, direct and assist the Planning and Development Authorities; to advise the Government in matters relating to the planning, development and use of rural and urban land in the Union Territory, and to perform other functions assigned to it by the Government. In terms of Section 8(2), the Board can direct the preparation of development plans by the Planning and Development Authorities; undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and monographs on planning and its methodology; co-ordinate and advise on the planning and implementation of physical development programmes and perform such other functions which are incidental to the enumerated functions. The role of the State Government primarily relates to approval of regional plan (S.44), revision of regional plan (S.17), declaration of planning areas, their amalgamation, sub-divisions, etc. (S.18), power to withdraw planning area from operation of the Act (S.19) and constitution of Planning and Development Authorities for the planning area (S.20). Section 22, which enumerates functions and powers of Planning and Development Authority reads as under: "22. Functions and powers of Planning and Development Authorities.--Subject to the provisions of this Act and the rules framed thereunder and subject to any directions which the Government may give, the functions of every Planning and Development Authority shall be –(a) to prepare an existing Land Use Map;(b) to prepare an Outline Development Plan;(c ) to prepare a Comprehensive Development plan;(d) to prepare and prescribe uses of land within its area; and(e) to prepare schemes of development and undertake their implementation, and for these purposes, it may carry out or cause to be carried out, surveys of the planning area and prepare report or reports of such surveys, and to perform such other functions as may be prescribed." 56. Chapter VII of the Town and Country Planning Act contains provisions relating to control of development and use of land. Section 44 lays down that any person intending to carry out any development in respect of, or change of use of, any land shall make an application in writing to the Planning and Development Authority for permission in such form containing such particulars and accompanied by such documents and plans as may be prescribed. Section 44(2)(b) and (c) deal with the situation in which the Development Authority objects to the proposal for development, in which case the matter has to be placed before the Government for its decision. Section 44(3) lays down that the Development Authority can grant permission, conditionally or unconditionally for carrying out any development or change of use of the land. While doing so, the Development Authority is required to take note of the provisions of the development plan, if any, in force, relevant bye-laws, regulations, etc. 57. None of the above noted provisions of the Town and Country Planning Act empowers the Board and/or the Development Authority to modify, amend, alter or change an agreement entered into as per the requirement of Section 41 of the 1894 Act or allow violation thereof by the company. Therefore, the decision taken by the Board in its meeting held on 20th June, 1991 and order dated 20th April, 1992 issued by the Development Authority were non est and the High Court rightly did not give any credence to those decisions while adjudicating the issue relating to legality of construction made on survey No.803 (new No.246/2). 58. We are also of the opinion that even the EDC which was empowered under second part of Clause 4(viii) of the agreement to grant approval to the activities relating to development could not have permitted construction/extension of the hotel building on a portion of survey No.803 (new No.246/2). Any such decision by the EDC would also have been declared nullity on the ground of violation of the mandate of first part of Clause 4(viii) of the statutory agreement. 59. The argument of Shri Divan that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) falls within the definition of "development" contained in Section 2(10) of the Town and Country Planning Act which comprehends carrying out of building activities and, therefore, the High Court should not have ordered demolition of the extended portion of the hotel, but we are unable to agree with him and reiterate that neither the Board nor the Development Authority could sanction violation of agreement dated 26.10.1983. 60. For the reasons stated above, we hold that the High Court did not commit any error by declaring that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) is illegal and directed its demolition after following the procedure prescribed under Clause 6 of agreement dated 26.10.1983.Re: 5. 61. This question deserves to be answered in favour of the appellants. A reading of application dated 15.11.1978 made by appellant No.1 makes it clear that it had no intention of making available the facilities of yoga centre, health club and amenities like water sports to the general public. Rather in paragraph 6 of its application, appellant No.1 made it clear that the facilities provided by the hotel will be open for use by non-residents also on membership basis. Agreement dated 26.10.1983 is totally silent on the issue of making the facilities created by the appellants open for public use without permission and payment of fees. Therefore, it is not possible to agree with Ms. Jaising that the facilities and amenities created by the appellant should be made available to the general public free of costs.62.
### Response:
0
### Explanation:
n our view, as appellant No.1 was engaged in executing a project of tourism development, i.e., construction of hotel along with amenities like yoga centre, health club and water sports facilities, acquisition of survey Nos.803 and 804 (new Nos.246/2 and 245/2) was clearly relatable to its project. This is also borne out from the language of agreement dated 26.10.1983, which records satisfaction of the Government that the land was needed for the purpose of executing tourism development project of appellant No.1. Clause 4 (ii) of the agreement shows that appellant No.1 was required to undertake the work of creation of sports and recreational facilities / amenities within one year of getting possession and complete the same within three years. This work was certainly ancillary to the tourism development project being executed by appellant No.1. Therefore, there is no escape from the conclusion that the acquisition was under Section 40(1)(aa) of the 1894 Act and the contrary finding recorded by the High Court is legally unsustainable. It is also necessary to bear in mind that tourism is an important industrial activity in Goa which attracts tourists from all over the country and abroad. A huge amount of foreign exchange is generated by this industry apart from providing employment and ancillary benefits to a large section of the population of the State. Therefore, acquisition of land for tourism development project is certainly for a public0. Wereiterate that natural resources including forests, water bodies, rivers, sea shores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the Court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural eco-systems.As a sequel to the above discussion, we hold that Clause 4(ix) of the agreement is binding on the appellants and appellant No.1 is under a statutory obligation to maintain access/road to the beach through survey No.803 (new No.246/2) without any obstruction of any kind and the High Court did not commit any error by issuing a mandamus in thatBy applying the ratio of the judgments in Nusserwanji Rattanji Mistris case and H.P. State Electricity Boards case to the facts of this case, we hold that when the State volunteered to take possession of the land subject to the right of the members of public to access the beach through the acquired land and a specific provision to that effect was incorporated in the agreement executed under Section 41 (5), Section 16 of the 1894 Act cannot be invoked for nullifying the right of the public to access the beach through survey No.803 (new. We also do not find any substance in the argument of Shri Anil Divan that Court should not insist on continuance of public access to the beach through survey No.803 (new No.246/2) because the pathway going to Dona Paula-Bambolim Road which was available through survey No.792 (new No.242/1) (Machados Cove) does not exist any more. The premise on which Shri Divan has made this argument, namely, non-availability of pathway through survey No.792 does not find support from the record of these appeals. Therefore, it is neither proper nor justified for this Court to deny the people of their traditional right of access to the beach through survey No.803 (new No.246/2) which goes to Dona-Paola-Bambolim Road by using the roads provided in survey No.792 (new No.242/1) (Machados Cove).We are also of the opinion that even the EDC which was empowered under second part of Clause 4(viii) of the agreement to grant approval to the activities relating to development could not have permitted construction/extension of the hotel building on a portion of survey No.803 (new No.246/2). Any such decision by the EDC would also have been declared nullity on the ground of violation of the mandate of first part of Clause 4(viii) of the statutory agreement.The argument of Shri Divan that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) falls within the definition of "development" contained in Section 2(10) of the Town and Country Planning Act which comprehends carrying out of building activities and, therefore, the High Court should not have ordered demolition of the extended portion of the hotel, but we are unable to agree with him and reiterate that neither the Board nor the Development Authority could sanction violation of agreement dated 26.10.1983.For the reasons stated above, we hold that the High Court did not commit any error by declaring that extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) is illegal and directed its demolition after following the procedure prescribed under Clause 6 of agreement dated 26.10.1983.Re: 5.This question deserves to be answered in favour of the appellants. A reading of application dated 15.11.1978 made by appellant No.1 makes it clear that it had no intention of making available the facilities of yoga centre, health club and amenities like water sports to the general public. Rather in paragraph 6 of its application, appellant No.1 made it clear that the facilities provided by the hotel will be open for use by non-residents also on membership basis. Agreement dated 26.10.1983 is totally silent on the issue of making the facilities created by the appellants open for public use without permission and payment of fees. Therefore, it is not possible to agree with Ms. Jaising that the facilities and amenities created by the appellant should be made available to the general public free of costs.
|
Sridhar Sundararajan Vs. Ultramarine & Pigments Limited & Another | disqualification was added to the list of disqualifications which were in existence under the old Act under Section 267. Since a new clause was added as further disqualification for appointment or continuation as Managing Director of the Company, it would operate not only at the stage of appointment but also would operate in the case of a person who has already been appointed and attained the age of 70 years and such a person, therefore, by virtue of disqualification, had no right to be continued as Managing Director, unless a special resolution was passed by the Company. There is no question therefore of the retrospective application of the provision. Since Section 196(3)(a) would apply prospectively, whoever attains the age of 70 after the Amendment Act came into force would cease to function as Managing Director by operation of statute. Ratio of the said judgments therefore on the retrospective application, which have been relied upon by the learned Senior Counsel appearing on behalf of Respondent No.2 viz. in K.S. Paripoornan vs. State of Kerala and others (1994) 5 SCC 493) (paras 64-68), Commissioner of Income Tax, U.P. vs. M.S. Shah Sadiq and Sons (1987) 3 SCC 516 ) (Para 15), J.S. Yadav vs. the State of Uttar Pradesh and another (2011) 6 SCC 570 ) (paras 20-24 and 28-29) and other judgments relating to retrospective application of the statute will not apply to the facts of the present case.In J.S. Yadav (supra), facts were that the appellant was a member of the State Human Rights Commission. The provision requiring seven years experience as a District Judge was brought into force after his appointment. The Apex Court held that he had vested right to complete his tenure. In our view, ratio of the said judgment would not apply to the facts of the present case. A distinction will have to be made between addition of eligibility criteria to the existing provision and addition of disqualification to continue in that post after the initial appointment.22. In the present case, prior to 2013 Amendment Act, appointment after the age of 70 years was not permissible subject to proviso but after the Amendment Act came into force, this was added as disqualification for further continuation of a person after he attained the age of 70 years. In a case therefore where the appointment is already made and thereafter eligibility criteria is changed then, in that event, it could be said that the vested right is created in a person who is already appointed prior to the amendment and additional eligibility criteria could not be applied retrospectively. However, in a case where additional disqualification is added to the Section then in such a case, after disqualification is incurred after his initial appointment, he would cease to continue as Managing Director since the disqualification would operate as cesession or discontinuation to work as Managing Director. In our view, the learned Single Judge has failed to note this distinction between the disqualification which is added after the appointment and the eligibility criteria which is added after his appointment. In the former case, disqualification would operate even after the appointment but in the latter case, it would operate prospectively. The judgments in P. Suseela (supra) and J.S. Yadav (supra) therefore would not apply to the facts of the present case. For the same reasons, Section 6(c) of the General Clauses Act 1897 will not be applicable in the present case.23. The last submission made by Mr. Seervai, the learned Senior Counsel for Respondent No.2 was that executive interpretation of the said section supported the interpretation placed by the Respondent No.2 on Section 196(3)(a). Reliance was placed on a Circular issued by Government of India, Ministry of Industry (Department of Company Affairs), in the context of the Companies (Amendment) Act, 1988 clarifying that the conditions specified in Schedule XIII Part-1 of the 1956 Act were required to be satisfied only at the time of appointment. It further observed that if the appointee, after appointment, did not satisfy any of the said conditions, it would not debar the person concerned from continuing in office for the full tenure of his appointment. Secondly, reliance was also placed on Schedule-V of 2013 Act which is also in pari materia with Schedule XIII of 1956 Act which speaks about the conditions to be fulfilled for the appointment of managing or full time Director or Manager without the approval of the Central Government. It was submitted that Clause (c) of Schedule-V of 2013 Act is exactly the same as Section 196(3)(a) and therefore it was submitted that Section 196(3)(a) would apply only in cases of appointment.24. In our view, again, the said submission is without any substance. As mentioned hereinabove, prior to the amendment, section 196(3)(a) was a part of section 269 which mentioned the eligibility criteria for appointment of Managing Director and, in that context, the Circular dated 13/04/1989 was issued. After the amendment, however, since the said clause has been incorporated in the list of disqualifications, the meaning which was given earlier i.e. prior to the amendment to Schedule XIII of 1956 Act, cannot be given now to disqualification which is added in Section 196(3)(a). It will not be possible therefore to say that section 196(3)(a) would operate separately from other sections viz. Section 196(3)(b) to (d). Section 196(3)(a) to (d) mentions various disqualifications which prohibit appointment or continuation of Managing Director as a matter of public policy.25. In other words, if appointment to the post of Managing Director is made after coming into force of the Amendment Act, 2013 on 1-4-2014, a person who is above the age of 70 years cannot be appointed on account of disqualification, subject to fulfillment of the proviso. On the other hand, if he was already appointed prior to 1-4-2014 when he was below the age of 70 years, on account of operation of statute, disqualification, whenever incurred after the Amendment Act, would operate automatically, subject to proviso i.e. special resolution being passed by the Company. | 1[ds]In our view, ratio of the said judgment would squarely apply to the facts of the present case. The Apex Court has therefore held that the language in which the provision is couched is plain, simple and unambiguous and does not admit of more than one meaning viz that after the commencement of the Amendment Act, no person who has suffered disqualification can be appointed or continue in appointment as Managing Director of the Company. Respondent No.2, in this case, was appointed as Chairman and Managing Director of Respondent No.1Company on 13/08/1990. The amendment came into force on 01/04/2014. He completed the age of 70 years on 11/11/2014 and therefore, from that date, he was disqualified from continuing as Managing Director, unless he fulfilled the requirements of the proviso viz that the Company has to continue his appointment by a special resolution and, secondly, that the resolution must state the reason why the continuation is necessary. The said disqualifications which are mentioned in clauses (a) to (d) cannot be fractured or split or dissected to mean that disqualifications (b) to (d) would operate instantly but clause (a) viz appointment or continuation of Managing Director beyond the age of 70 years would operate in a different manner than the remaining clauses (b) to (d). The learned Single Judge, therefore, in our view, has clearly erred in dissecting the said section in two parts and by holding that clause (a) would operate differently than clauses (b) to (d). The said observation is contrary to the ratio laid down by the Apex Court in Rama Narang (supra).16. We do not agree with the submission of Mr. Seervai, the learned Senior Counsel appearing on behalf of Respondent No.2 that ratio of the judgment in Rama Narang (supra) would not apply to the present case. We also do not find force in the submission of Mr. Seervai, the learned Senior Counsel for Respondent No.2 that Section 196(3)(a) would not apply to the Managing Directors who had been appointed before 01/04/2014 (which is the date on which the the amended section 196(3)(a) was brought into force) as it would otherwise retrospectively affect the vested right of such Managing Directors and, secondly, that there is presumption against legislation operating retrospectively.17. In our view, Mr. Aspi Chinoy, the learned Senior Counsel appearing on behalf of the Appellant has correctly submitted that the amended Section as a matter of public policy contains mandatory prohibition/bar against any Company from continuing the Managing Director in employment once he has attained the age of 70 years. The language of section 196(3)(a) is plain, simple and unambiguous and it applies to all the Managing Directors who have attained the age of 70 years and the Section does not make any distinction between the Managing Directors who have been appointed before 01/04/2014 and those after 01/04/2014. The moment therefore Managing Director attains the age of 70 years, disqualification mentioned in Section 196(3) (a) would operate immediately. In our view, it is not open now to alter its clear terms by a process of interpretation for excluding the Managing Directors appointed prior to 01/04/2014 from the purview of prohibition contained in Section 196(3). The disqualifications which have been mentioned in section 196(3) are introduced as a matter of public policy and they contain mandatory prohibition/bar for continuing the Managing Director in employment, once he has attained the age of 70 years. It is well settled position in law that while interpreting any provision it is not open for the Court to add to or delete words from the provision or change the plain statutory language of the provision.The learned Single Judge relied on the judgment of the Apex Court in P. Suseela (supra) and in para 9 observed that the observations of the Apex Court in para 15 of the said judgment would be applicable to the factsof the present case. The learned Single Judge observed that since the second Defendant was already a Chairman and Managing Director of the 1st Defendant when he turned 70, the 2013 Act could not operate as an immediate termination of his appointment, as that would give a retrospective application to the 2013 Act.20. In our view, the learned Single Judge has clearly erred in applying the ratio of the Judgment in P. Suseela (supra) to the facts of this case. In P. Suseela, by virtue of the power vested under the Act, Regulations were framed and an additional minimum eligibility criteria was introduced, apart from existing criteria for the appointment of Lecturers. The Apex Court in para 15 has observed that till the Appellants were actually appointed to the post of Lecturer/Assistant Professor, no vested right was created in any of the Appellants. It held that, at the fmost, the Appellants could contend that they have a right to be considered for the post of Lecturer/Assistant Professor and, secondly, it held that this would not mean that Regulations laying down such minimum eligibility criteria would be retrospective in operation.21. In our view, the learned Single Judge has erred in holding that ratio of the said judgment is applicable to the facts of the present case. It has to be borne in mind that by virtue of the Amendment Act of 2013, which came into force on 01/04/2014, one additional disqualification was added to the list of disqualifications which were in existence under the old Act under Section 267. Since a new clause was added as further disqualification for appointment or continuation as Managing Director of the Company, it would operate not only at the stage of appointment but also would operate in the case of a person who has already been appointed and attained the age of 70 years and such a person, therefore, by virtue of disqualification, had no right to be continued as Managing Director, unless a special resolution was passed by the Company. There is no question therefore of the retrospective application of the provision. Since Section 196(3)(a) would apply prospectively, whoever attains the age of 70 after the Amendment Act came into force would cease to function as Managing Director by operation of statute. Ratio of the said judgments therefore on the retrospective application, which have been relied upon by the learned Senior Counsel appearing on behalf of Respondent No.2 viz. in K.S. Paripoornan vs. State of Kerala and others (1994) 5 SCC 493) (parasCommissioner of Income Tax, U.P. vs. M.S. Shah Sadiq and Sons (1987) 3 SCC 516 ) (Para 15), J.S. Yadav vs. the State of Uttar Pradesh and another (2011) 6 SCC 570 ) (paras9) and other judgments relating to retrospective application of the statute will not apply to the facts of the present case.In J.S. Yadav (supra), facts were that the appellant was a member of the State Human Rights Commission. The provision requiring seven years experience as a District Judge was brought into force after his appointment. The Apex Court held that he had vested right to complete his tenure. In our view, ratio of the said judgment would not apply to the facts of the present case. A distinction will have to be made between addition of eligibility criteria to the existing provision and addition of disqualification to continue in that post after the initial appointment.22. In the present case, prior to 2013 Amendment Act, appointment after the age of 70 years was not permissible subject to proviso but after the Amendment Act came into force, this was added as disqualification for further continuation of a person after he attained the age of 70 years. In a case therefore where the appointment is already made and thereafter eligibility criteria is changed then, in that event, it could be said that the vested right is created in a person who is already appointed prior to the amendment and additional eligibility criteria could not be applied retrospectively. However, in a case where additional disqualification is added to the Section then in such a case, after disqualification is incurred after his initial appointment, he would cease to continue as Managing Director since the disqualification would operate as cesession or discontinuation to work as Managing Director. In our view, the learned Single Judge has failed to note this distinction between the disqualification which is added after the appointment and the eligibility criteria which is added after his appointment. In the former case, disqualification would operate even after the appointment but in the latter case, it would operate prospectively. The judgments in P. Suseela (supra) and J.S. Yadav (supra) therefore would not apply to the facts of the present case. For the same reasons, Section 6(c) of the General Clauses Act 1897 will not be applicable in the present case.23. The last submission made by Mr. Seervai, the learned Senior Counsel for Respondent No.2 was that executive interpretation of the said section supported the interpretation placed by the Respondent No.2 on Section 196(3)(a). Reliance was placed on a Circular issued by Government of India, Ministry of Industry (Department of Company Affairs), in the context of the Companies (Amendment) Act, 1988 clarifying that the conditions specified in Schedule XIIIof the 1956 Act were required to be satisfied only at the time of appointment. It further observed that if the appointee, after appointment, did not satisfy any of the said conditions, it would not debar the person concerned from continuing in office for the full tenure of his appointment. Secondly, reliance was also placed onof 2013 Act which is also in pari materia with Schedule XIII of 1956 Act which speaks about the conditions to be fulfilled for the appointment of managing or full time Director or Manager without the approval of the Central Government. It was submitted that Clause (c) ofof 2013 Act is exactly the same as Section 196(3)(a) and therefore it was submitted that Section 196(3)(a) would apply only in cases of appointment.24. In our view, again, the said submission is without any substance. As mentioned hereinabove, prior to the amendment, section 196(3)(a) was a part of section 269 which mentioned the eligibility criteria for appointment of Managing Director and, in that context, the Circular dated 13/04/1989 was issued. After the amendment, however, since the said clause has been incorporated in the list of disqualifications, the meaning which was given earlier i.e. prior to the amendment to Schedule XIII of 1956 Act, cannot be given now to disqualification which is added in Section 196(3)(a). It will not be possible therefore to say that section 196(3)(a) would operate separately from other sections viz. Section 196(3)(b) to (d). Section 196(3)(a) to (d) mentions various disqualifications which prohibit appointment or continuation of Managing Director as a matter of public policy.25. In other words, if appointment to the post of Managing Director is made after coming into force of the Amendment Act, 2013 ona person who is above the age of 70 years cannot be appointed on account of disqualification, subject to fulfillment of the proviso. On the other hand, if he was already appointed prior towhen he was below the age of 70 years, on account of operation of statute, disqualification, whenever incurred after the Amendment Act, would operate automatically, subject to proviso i.e. special resolution being passed by the Company. | 1 | 6,051 | 2,165 | ### 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:
disqualification was added to the list of disqualifications which were in existence under the old Act under Section 267. Since a new clause was added as further disqualification for appointment or continuation as Managing Director of the Company, it would operate not only at the stage of appointment but also would operate in the case of a person who has already been appointed and attained the age of 70 years and such a person, therefore, by virtue of disqualification, had no right to be continued as Managing Director, unless a special resolution was passed by the Company. There is no question therefore of the retrospective application of the provision. Since Section 196(3)(a) would apply prospectively, whoever attains the age of 70 after the Amendment Act came into force would cease to function as Managing Director by operation of statute. Ratio of the said judgments therefore on the retrospective application, which have been relied upon by the learned Senior Counsel appearing on behalf of Respondent No.2 viz. in K.S. Paripoornan vs. State of Kerala and others (1994) 5 SCC 493) (paras 64-68), Commissioner of Income Tax, U.P. vs. M.S. Shah Sadiq and Sons (1987) 3 SCC 516 ) (Para 15), J.S. Yadav vs. the State of Uttar Pradesh and another (2011) 6 SCC 570 ) (paras 20-24 and 28-29) and other judgments relating to retrospective application of the statute will not apply to the facts of the present case.In J.S. Yadav (supra), facts were that the appellant was a member of the State Human Rights Commission. The provision requiring seven years experience as a District Judge was brought into force after his appointment. The Apex Court held that he had vested right to complete his tenure. In our view, ratio of the said judgment would not apply to the facts of the present case. A distinction will have to be made between addition of eligibility criteria to the existing provision and addition of disqualification to continue in that post after the initial appointment.22. In the present case, prior to 2013 Amendment Act, appointment after the age of 70 years was not permissible subject to proviso but after the Amendment Act came into force, this was added as disqualification for further continuation of a person after he attained the age of 70 years. In a case therefore where the appointment is already made and thereafter eligibility criteria is changed then, in that event, it could be said that the vested right is created in a person who is already appointed prior to the amendment and additional eligibility criteria could not be applied retrospectively. However, in a case where additional disqualification is added to the Section then in such a case, after disqualification is incurred after his initial appointment, he would cease to continue as Managing Director since the disqualification would operate as cesession or discontinuation to work as Managing Director. In our view, the learned Single Judge has failed to note this distinction between the disqualification which is added after the appointment and the eligibility criteria which is added after his appointment. In the former case, disqualification would operate even after the appointment but in the latter case, it would operate prospectively. The judgments in P. Suseela (supra) and J.S. Yadav (supra) therefore would not apply to the facts of the present case. For the same reasons, Section 6(c) of the General Clauses Act 1897 will not be applicable in the present case.23. The last submission made by Mr. Seervai, the learned Senior Counsel for Respondent No.2 was that executive interpretation of the said section supported the interpretation placed by the Respondent No.2 on Section 196(3)(a). Reliance was placed on a Circular issued by Government of India, Ministry of Industry (Department of Company Affairs), in the context of the Companies (Amendment) Act, 1988 clarifying that the conditions specified in Schedule XIII Part-1 of the 1956 Act were required to be satisfied only at the time of appointment. It further observed that if the appointee, after appointment, did not satisfy any of the said conditions, it would not debar the person concerned from continuing in office for the full tenure of his appointment. Secondly, reliance was also placed on Schedule-V of 2013 Act which is also in pari materia with Schedule XIII of 1956 Act which speaks about the conditions to be fulfilled for the appointment of managing or full time Director or Manager without the approval of the Central Government. It was submitted that Clause (c) of Schedule-V of 2013 Act is exactly the same as Section 196(3)(a) and therefore it was submitted that Section 196(3)(a) would apply only in cases of appointment.24. In our view, again, the said submission is without any substance. As mentioned hereinabove, prior to the amendment, section 196(3)(a) was a part of section 269 which mentioned the eligibility criteria for appointment of Managing Director and, in that context, the Circular dated 13/04/1989 was issued. After the amendment, however, since the said clause has been incorporated in the list of disqualifications, the meaning which was given earlier i.e. prior to the amendment to Schedule XIII of 1956 Act, cannot be given now to disqualification which is added in Section 196(3)(a). It will not be possible therefore to say that section 196(3)(a) would operate separately from other sections viz. Section 196(3)(b) to (d). Section 196(3)(a) to (d) mentions various disqualifications which prohibit appointment or continuation of Managing Director as a matter of public policy.25. In other words, if appointment to the post of Managing Director is made after coming into force of the Amendment Act, 2013 on 1-4-2014, a person who is above the age of 70 years cannot be appointed on account of disqualification, subject to fulfillment of the proviso. On the other hand, if he was already appointed prior to 1-4-2014 when he was below the age of 70 years, on account of operation of statute, disqualification, whenever incurred after the Amendment Act, would operate automatically, subject to proviso i.e. special resolution being passed by the Company.
### Response:
1
### Explanation:
the Amendment Act of 2013, which came into force on 01/04/2014, one additional disqualification was added to the list of disqualifications which were in existence under the old Act under Section 267. Since a new clause was added as further disqualification for appointment or continuation as Managing Director of the Company, it would operate not only at the stage of appointment but also would operate in the case of a person who has already been appointed and attained the age of 70 years and such a person, therefore, by virtue of disqualification, had no right to be continued as Managing Director, unless a special resolution was passed by the Company. There is no question therefore of the retrospective application of the provision. Since Section 196(3)(a) would apply prospectively, whoever attains the age of 70 after the Amendment Act came into force would cease to function as Managing Director by operation of statute. Ratio of the said judgments therefore on the retrospective application, which have been relied upon by the learned Senior Counsel appearing on behalf of Respondent No.2 viz. in K.S. Paripoornan vs. State of Kerala and others (1994) 5 SCC 493) (parasCommissioner of Income Tax, U.P. vs. M.S. Shah Sadiq and Sons (1987) 3 SCC 516 ) (Para 15), J.S. Yadav vs. the State of Uttar Pradesh and another (2011) 6 SCC 570 ) (paras9) and other judgments relating to retrospective application of the statute will not apply to the facts of the present case.In J.S. Yadav (supra), facts were that the appellant was a member of the State Human Rights Commission. The provision requiring seven years experience as a District Judge was brought into force after his appointment. The Apex Court held that he had vested right to complete his tenure. In our view, ratio of the said judgment would not apply to the facts of the present case. A distinction will have to be made between addition of eligibility criteria to the existing provision and addition of disqualification to continue in that post after the initial appointment.22. In the present case, prior to 2013 Amendment Act, appointment after the age of 70 years was not permissible subject to proviso but after the Amendment Act came into force, this was added as disqualification for further continuation of a person after he attained the age of 70 years. In a case therefore where the appointment is already made and thereafter eligibility criteria is changed then, in that event, it could be said that the vested right is created in a person who is already appointed prior to the amendment and additional eligibility criteria could not be applied retrospectively. However, in a case where additional disqualification is added to the Section then in such a case, after disqualification is incurred after his initial appointment, he would cease to continue as Managing Director since the disqualification would operate as cesession or discontinuation to work as Managing Director. In our view, the learned Single Judge has failed to note this distinction between the disqualification which is added after the appointment and the eligibility criteria which is added after his appointment. In the former case, disqualification would operate even after the appointment but in the latter case, it would operate prospectively. The judgments in P. Suseela (supra) and J.S. Yadav (supra) therefore would not apply to the facts of the present case. For the same reasons, Section 6(c) of the General Clauses Act 1897 will not be applicable in the present case.23. The last submission made by Mr. Seervai, the learned Senior Counsel for Respondent No.2 was that executive interpretation of the said section supported the interpretation placed by the Respondent No.2 on Section 196(3)(a). Reliance was placed on a Circular issued by Government of India, Ministry of Industry (Department of Company Affairs), in the context of the Companies (Amendment) Act, 1988 clarifying that the conditions specified in Schedule XIIIof the 1956 Act were required to be satisfied only at the time of appointment. It further observed that if the appointee, after appointment, did not satisfy any of the said conditions, it would not debar the person concerned from continuing in office for the full tenure of his appointment. Secondly, reliance was also placed onof 2013 Act which is also in pari materia with Schedule XIII of 1956 Act which speaks about the conditions to be fulfilled for the appointment of managing or full time Director or Manager without the approval of the Central Government. It was submitted that Clause (c) ofof 2013 Act is exactly the same as Section 196(3)(a) and therefore it was submitted that Section 196(3)(a) would apply only in cases of appointment.24. In our view, again, the said submission is without any substance. As mentioned hereinabove, prior to the amendment, section 196(3)(a) was a part of section 269 which mentioned the eligibility criteria for appointment of Managing Director and, in that context, the Circular dated 13/04/1989 was issued. After the amendment, however, since the said clause has been incorporated in the list of disqualifications, the meaning which was given earlier i.e. prior to the amendment to Schedule XIII of 1956 Act, cannot be given now to disqualification which is added in Section 196(3)(a). It will not be possible therefore to say that section 196(3)(a) would operate separately from other sections viz. Section 196(3)(b) to (d). Section 196(3)(a) to (d) mentions various disqualifications which prohibit appointment or continuation of Managing Director as a matter of public policy.25. In other words, if appointment to the post of Managing Director is made after coming into force of the Amendment Act, 2013 ona person who is above the age of 70 years cannot be appointed on account of disqualification, subject to fulfillment of the proviso. On the other hand, if he was already appointed prior towhen he was below the age of 70 years, on account of operation of statute, disqualification, whenever incurred after the Amendment Act, would operate automatically, subject to proviso i.e. special resolution being passed by the Company.
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Sushil Samir Co-Operative Housing Society Limited Vs. District Deputy Registrar, Co-Operative Societies & Others | has transgressed its jurisdiction and has imposed conditions 2(i), 2(ii) and 2(iii), which do not fall within his jurisdiction and, as such, therefore, was not authorized to deal with the said issues which are found in Condition Nos. 2 (i) to 2 (v). In this context, therefore, it would be necessary to reproduce the conditions which are imposed by the Competent Authority under Clause 2(i) to 2(v), reads as under:2(i) The agreement for sale dated 12.3.1988 between the owners M/s. Music India Ltd. and M/s. Gokul Enterprises is not properly stamped. As per the modification done in the Bombay Stamp Act, 1958, w.e.f. 10.12.1985, the agreement for sale is deemed to be conveyance and the applicable stamp duty has to be paid. In case, stamp duty is not paid, it will not be admitted as evidence in any court of law, including before the competent Authority under section 34 of Bombay Stamp Act, 1958. Since agreement is to purchase entire property of 22407.20 Sq.Meters and not the part of the property which need to be conveyed to the society as the society has relied upon the agreement dated 12.3.1988 for getting deemed conveyance. The society should submit the duly stamped agreement for sale as required under Bombay Stamp Act, 1958.(ii) The property is a layout property and as per Govt circular dated 25.2.2011, the detailed guidelines are awaited before the same is decided by the Authority. The actual conveyance deed can be executed only after receiving the proper guidelines in the matter.(iii) The agreement for sale executed with individual flat owners are not having the land owners as the confirming party as per the Model Agreement prescribed in MOFA Rules in Form V and also as per the judgment of High Court in the matter of Ramaniklal Tulsidas Kotak Vs. Vasha Builders. The proper reasons and the evidence has to be given to establish the title flow and to grant the deemed conveyance.(iv) The plan submitted is for building No.5 and the existing Building (5 row houses, Building No.1 Wing C and B = 112 flats, Bld No.4 (A wing and Part B wing) 154 flats has consumed 15054.32 Sq. Meters and 1585.82 Sq. Meters is consumed for building No.5. So proportionate working is difficult. Proper architect certificate for entitlement of the area need to be submitted.(v) There are other societies in the layout known as Rihan, Krishna & Siddhant (Other societies in the layout) want to get the conveyance together and requested to give joint conveyance. The are should be ascertained by taking joint measurement of all the societies.14. Perusal of the said conditions, which are imposed, clearly reveal that Respondent No.1-Competent Authority did not have jurisdiction to impose the conditions which are mentioned in Condition Nos. 2(i) to (v) since the area, at the most, could have been considered by the Sub-Registrar.15. We do not have any hesitation to hold that the Competent Authority, therefore, has committed an error of law which is apparent on the face of record in imposing the condition Nos. 2(i), 2(ii) and 2(iii) in the impugned order. The said conditions, therefore, are quashed and set aside.16. So far as the condition Nos.2(iv) and 2(v) are concerned, in our view, the Competent Authority ought to have decided the said issue before issuing a certificate of deemed conveyance, and instead of that, the deemed conveyance certificate is issued. Subject to condition Nos. 2(iv) and 2(v) being imposed, he ought to have decided the area which was to be conveyed in favour of the Petitioner Society and other societies rather than saying that after the conditions imposed viz. 2(i) to 2(v) are complied with, only thereafter, the said certificate would become effective.17. We, therefore, of the view that the Competent Authority ought to have collected the relevant documents from the Petitioner and Respondent Nos.4,5 and 6 and then arrived at the conclusion regarding the area which was to be conveyed at least in favour of the Petitioner Society since no application has been filed by Respondent Nos.4,5 and 6 seeking deemed conveyance. We, therefore, direct the Competent Authority to make a further inquiry after calling upon the Petitioner and other Respondent Nos.4, 5 and 6 Societies to submit the documents regarding the area consumed by them and, thereafter, decide the question of area, and direction may be given by the Competent Authority to the Petitioner and to the Respondents to submit a proper Architects certificate for the entitlement of the area and other relevant documents. The said conditions 2(iv) and 2(v) are set aside and we direct the Competent Authority to determine the area which is to be conveyed in favour of the Petitioner Society as per the directions given hereinabove.18. So far as paragraph 3 of the impugned order is concerned, the words after the compliances of conditions mentioned hereinabove are set aside. Similarly in paragraph 5, instead of directing the Sub-Registrar to take action under Bombay Stamp Act, 1958 and Transfer of Property Act, 1882, a direction is given to the Sub-Registrar to take action in accordance with the provisions of sub-section (5) of Section 11 of the MOFA Act.19. The submissions made by the learned AGP appearing on behalf of the State cannot be accepted for the reasons mentioned hereinabove. So far as the judgment on which the reliance was placed by the learned AGP for the State viz. Mazda Construction Company & Ors. (supra) is concerned, there cannot be any dispute regarding the ratio of the said judgment. However, in our view, the ratio of the said judgment will not apply to the facts of the present case since the issue involved in the said case is different. The Competent Authority had directed that certain area, which was disputed, should also be conveyed in favour of the said society without taking into consideration the objections which were raised and in that context, the Learned Single Judge had made the observations which are found in paragraphs 20 and 27 of the said judgment. | 1[ds]10. After having heard all the counsel at length and before dealing with the relevant rival submissions, it would be necessary to quickly have a look at the relevant provisions viz. Section 10 and 11. Section 10 of the said Act imposes an obligation on the part of the Promoter/Developer to convey the property to the flat purchasers and/or to the society of the flat purchasers. Section 11 of the said Act gives a power and authority to the Competent Authority which is constituted under section 5A of the MOFA Act to make an inquiry and find out whether the promoter who is obliged to convey the property to the society and if he has failed in his duty to fulfill that obligation and if it so, comes to the conclusion, then he has to make an inquiry after the applicant produces the relevant documentary evidence and records and, thereafter, issue a certificate of deemed conveyance in favour of such an applicant.Perusal of the facts of the present case, clearly reveal that the Competent Authority appointed under section 5A has transgressed its jurisdiction and has imposed conditions 2(i), 2(ii) and 2(iii), which do not fall within his jurisdiction and, as such, therefore, was not authorized to deal with the said issues which are found in Condition Nos. 2 (i) to 2 (v).Perusal of the said conditions, which are imposed, clearly reveal that RespondentWe do not have any hesitation to hold that the Competent Authority, therefore, has committed an error of law which is apparent on the face of record in imposing the condition Nos. 2(i), 2(ii) and 2(iii) in the impugned order. The said conditions, therefore, are quashed and set aside.16. So far as the condition Nos.2(iv) and 2(v) are concerned, in our view, the Competent Authority ought to have decided the said issue before issuing a certificate of deemed conveyance, and instead of that, the deemed conveyance certificate is issued. Subject to condition Nos. 2(iv) and 2(v) being imposed, he ought to have decided the area which was to be conveyed in favour of the Petitioner Society and other societies rather than saying that after the conditions imposed viz. 2(i) to 2(v) are complied with, only thereafter, the said certificate would become effective.17. We, therefore, of the view that the Competent Authority ought to have collected the relevant documents from the Petitioner and Respondent Nos.4,5 and 6 and then arrived at the conclusion regarding the area which was to be conveyed at least in favour of the Petitioner Society since no application has been filed by Respondent Nos.4,5 and 6 seeking deemed conveyance. We, therefore, direct the Competent Authority to make a further inquiry after calling upon the Petitioner and other Respondent Nos.4, 5 and 6 Societies to submit the documents regarding the area consumed by them and, thereafter, decide the question of area, and direction may be given by the Competent Authority to the Petitioner and to the Respondents to submit a proper Architects certificate for the entitlement of the area and other relevant documents. The said conditions 2(iv) and 2(v) are set aside and we direct the Competent Authority to determine the area which is to be conveyed in favour of the Petitioner Society as per the directions given hereinabove.18. So far as paragraph 3 of the impugned order is concerned, the words after the compliances of conditions mentioned hereinabove are set aside. Similarly in paragraph 5, instead of directing theto take action under Bombay Stamp Act, 1958 and Transfer of Property Act, 1882, a direction is given to theto take action in accordance with the provisions of(5) of Section 11 of the MOFA Act.19. The submissions made by the learned AGP appearing on behalf of the State cannot be accepted for the reasons mentioned hereinabove. So far as the judgment on which the reliance was placed by the learned AGP for the State viz. Mazda Construction CompanyOrs. (supra) is concerned, there cannot be any dispute regarding the ratio of the said judgment. However, in our view, the ratio of the said judgment will not apply to the facts of the present case since the issue involved in the said case is different. The Competent Authority had directed that certain area, which was disputed, should also be conveyed in favour of the said society without taking into consideration the objections which were raised and in that context, the Learned Single Judge had made the observations which are found in paragraphs 20 and 27 of the said judgment. | 1 | 3,970 | 875 | ### 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:
has transgressed its jurisdiction and has imposed conditions 2(i), 2(ii) and 2(iii), which do not fall within his jurisdiction and, as such, therefore, was not authorized to deal with the said issues which are found in Condition Nos. 2 (i) to 2 (v). In this context, therefore, it would be necessary to reproduce the conditions which are imposed by the Competent Authority under Clause 2(i) to 2(v), reads as under:2(i) The agreement for sale dated 12.3.1988 between the owners M/s. Music India Ltd. and M/s. Gokul Enterprises is not properly stamped. As per the modification done in the Bombay Stamp Act, 1958, w.e.f. 10.12.1985, the agreement for sale is deemed to be conveyance and the applicable stamp duty has to be paid. In case, stamp duty is not paid, it will not be admitted as evidence in any court of law, including before the competent Authority under section 34 of Bombay Stamp Act, 1958. Since agreement is to purchase entire property of 22407.20 Sq.Meters and not the part of the property which need to be conveyed to the society as the society has relied upon the agreement dated 12.3.1988 for getting deemed conveyance. The society should submit the duly stamped agreement for sale as required under Bombay Stamp Act, 1958.(ii) The property is a layout property and as per Govt circular dated 25.2.2011, the detailed guidelines are awaited before the same is decided by the Authority. The actual conveyance deed can be executed only after receiving the proper guidelines in the matter.(iii) The agreement for sale executed with individual flat owners are not having the land owners as the confirming party as per the Model Agreement prescribed in MOFA Rules in Form V and also as per the judgment of High Court in the matter of Ramaniklal Tulsidas Kotak Vs. Vasha Builders. The proper reasons and the evidence has to be given to establish the title flow and to grant the deemed conveyance.(iv) The plan submitted is for building No.5 and the existing Building (5 row houses, Building No.1 Wing C and B = 112 flats, Bld No.4 (A wing and Part B wing) 154 flats has consumed 15054.32 Sq. Meters and 1585.82 Sq. Meters is consumed for building No.5. So proportionate working is difficult. Proper architect certificate for entitlement of the area need to be submitted.(v) There are other societies in the layout known as Rihan, Krishna & Siddhant (Other societies in the layout) want to get the conveyance together and requested to give joint conveyance. The are should be ascertained by taking joint measurement of all the societies.14. Perusal of the said conditions, which are imposed, clearly reveal that Respondent No.1-Competent Authority did not have jurisdiction to impose the conditions which are mentioned in Condition Nos. 2(i) to (v) since the area, at the most, could have been considered by the Sub-Registrar.15. We do not have any hesitation to hold that the Competent Authority, therefore, has committed an error of law which is apparent on the face of record in imposing the condition Nos. 2(i), 2(ii) and 2(iii) in the impugned order. The said conditions, therefore, are quashed and set aside.16. So far as the condition Nos.2(iv) and 2(v) are concerned, in our view, the Competent Authority ought to have decided the said issue before issuing a certificate of deemed conveyance, and instead of that, the deemed conveyance certificate is issued. Subject to condition Nos. 2(iv) and 2(v) being imposed, he ought to have decided the area which was to be conveyed in favour of the Petitioner Society and other societies rather than saying that after the conditions imposed viz. 2(i) to 2(v) are complied with, only thereafter, the said certificate would become effective.17. We, therefore, of the view that the Competent Authority ought to have collected the relevant documents from the Petitioner and Respondent Nos.4,5 and 6 and then arrived at the conclusion regarding the area which was to be conveyed at least in favour of the Petitioner Society since no application has been filed by Respondent Nos.4,5 and 6 seeking deemed conveyance. We, therefore, direct the Competent Authority to make a further inquiry after calling upon the Petitioner and other Respondent Nos.4, 5 and 6 Societies to submit the documents regarding the area consumed by them and, thereafter, decide the question of area, and direction may be given by the Competent Authority to the Petitioner and to the Respondents to submit a proper Architects certificate for the entitlement of the area and other relevant documents. The said conditions 2(iv) and 2(v) are set aside and we direct the Competent Authority to determine the area which is to be conveyed in favour of the Petitioner Society as per the directions given hereinabove.18. So far as paragraph 3 of the impugned order is concerned, the words after the compliances of conditions mentioned hereinabove are set aside. Similarly in paragraph 5, instead of directing the Sub-Registrar to take action under Bombay Stamp Act, 1958 and Transfer of Property Act, 1882, a direction is given to the Sub-Registrar to take action in accordance with the provisions of sub-section (5) of Section 11 of the MOFA Act.19. The submissions made by the learned AGP appearing on behalf of the State cannot be accepted for the reasons mentioned hereinabove. So far as the judgment on which the reliance was placed by the learned AGP for the State viz. Mazda Construction Company & Ors. (supra) is concerned, there cannot be any dispute regarding the ratio of the said judgment. However, in our view, the ratio of the said judgment will not apply to the facts of the present case since the issue involved in the said case is different. The Competent Authority had directed that certain area, which was disputed, should also be conveyed in favour of the said society without taking into consideration the objections which were raised and in that context, the Learned Single Judge had made the observations which are found in paragraphs 20 and 27 of the said judgment.
### Response:
1
### Explanation:
10. After having heard all the counsel at length and before dealing with the relevant rival submissions, it would be necessary to quickly have a look at the relevant provisions viz. Section 10 and 11. Section 10 of the said Act imposes an obligation on the part of the Promoter/Developer to convey the property to the flat purchasers and/or to the society of the flat purchasers. Section 11 of the said Act gives a power and authority to the Competent Authority which is constituted under section 5A of the MOFA Act to make an inquiry and find out whether the promoter who is obliged to convey the property to the society and if he has failed in his duty to fulfill that obligation and if it so, comes to the conclusion, then he has to make an inquiry after the applicant produces the relevant documentary evidence and records and, thereafter, issue a certificate of deemed conveyance in favour of such an applicant.Perusal of the facts of the present case, clearly reveal that the Competent Authority appointed under section 5A has transgressed its jurisdiction and has imposed conditions 2(i), 2(ii) and 2(iii), which do not fall within his jurisdiction and, as such, therefore, was not authorized to deal with the said issues which are found in Condition Nos. 2 (i) to 2 (v).Perusal of the said conditions, which are imposed, clearly reveal that RespondentWe do not have any hesitation to hold that the Competent Authority, therefore, has committed an error of law which is apparent on the face of record in imposing the condition Nos. 2(i), 2(ii) and 2(iii) in the impugned order. The said conditions, therefore, are quashed and set aside.16. So far as the condition Nos.2(iv) and 2(v) are concerned, in our view, the Competent Authority ought to have decided the said issue before issuing a certificate of deemed conveyance, and instead of that, the deemed conveyance certificate is issued. Subject to condition Nos. 2(iv) and 2(v) being imposed, he ought to have decided the area which was to be conveyed in favour of the Petitioner Society and other societies rather than saying that after the conditions imposed viz. 2(i) to 2(v) are complied with, only thereafter, the said certificate would become effective.17. We, therefore, of the view that the Competent Authority ought to have collected the relevant documents from the Petitioner and Respondent Nos.4,5 and 6 and then arrived at the conclusion regarding the area which was to be conveyed at least in favour of the Petitioner Society since no application has been filed by Respondent Nos.4,5 and 6 seeking deemed conveyance. We, therefore, direct the Competent Authority to make a further inquiry after calling upon the Petitioner and other Respondent Nos.4, 5 and 6 Societies to submit the documents regarding the area consumed by them and, thereafter, decide the question of area, and direction may be given by the Competent Authority to the Petitioner and to the Respondents to submit a proper Architects certificate for the entitlement of the area and other relevant documents. The said conditions 2(iv) and 2(v) are set aside and we direct the Competent Authority to determine the area which is to be conveyed in favour of the Petitioner Society as per the directions given hereinabove.18. So far as paragraph 3 of the impugned order is concerned, the words after the compliances of conditions mentioned hereinabove are set aside. Similarly in paragraph 5, instead of directing theto take action under Bombay Stamp Act, 1958 and Transfer of Property Act, 1882, a direction is given to theto take action in accordance with the provisions of(5) of Section 11 of the MOFA Act.19. The submissions made by the learned AGP appearing on behalf of the State cannot be accepted for the reasons mentioned hereinabove. So far as the judgment on which the reliance was placed by the learned AGP for the State viz. Mazda Construction CompanyOrs. (supra) is concerned, there cannot be any dispute regarding the ratio of the said judgment. However, in our view, the ratio of the said judgment will not apply to the facts of the present case since the issue involved in the said case is different. The Competent Authority had directed that certain area, which was disputed, should also be conveyed in favour of the said society without taking into consideration the objections which were raised and in that context, the Learned Single Judge had made the observations which are found in paragraphs 20 and 27 of the said judgment.
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Gowrisetti Venkataiah Vs. District Collector, Karimnagar and Others | KRISHNA IYER, J.1. The controversy in this case may, without caricature, be described as a storm in a teacup. A sale of the property of the second respondent, who was an Abkari contractor in arrears, was held by the tahsildar and the purchaser, the highest bidder, is the appellant. The bid amount for which the sale was knocked down was Rs. 4050. Although the total amount due from the Abkari contractor was Rs. 8, 000 odd, part of it was penalty for default in payment, which eventually was waived by the State Government. Thus, what was realisable from the contractor was only Rs. 5429.67. The sale having fetched Rs. 4050, a balance of Rs. 1379.67 is all that the State is entitled to get. In the light of what we propose to hold and, on a suggestion from the Court, the appellant has agreed to deposit the balance of Rs. 1379.67 rounded off into Rs. 1380 into the treasury within one month from today.2. The litigation itself arose by way of a writ petition challenging the setting aside of the sale by the Board of Revenue. According to the appellant-auction purchaser, there was no legal ground or even power to set aside the sale which had already been confirmed. The High Court, at the second tier, i.e. in appeal before the Division Bench, took the view that the sale was bad and liable to be set aside on the short ground that the balance of 75% of the sale price had not been deposited within 30 days of the receipt of the notice as required by Section 135(b)(2). We have been taken by counsel for the appellant, Shri Gupte, through the basic facts necessary for appreciating his contention that his client had actually made the deposit within 30 days. It is a simple case of slip-up on the part of the High Court. Therefore, we see no way to uphold the finding of the High Court that the deposit was made beyond time and the sale was void. In the result, we allow the appeal, hold the sale good but direct as earlier stated that the appellant do deposit Rs. 1380 which means that the State would have realised the entire arrear due from the Abkari contractor. It is worthwhile noticing that the latter has not cared to appear in this Court or contest the claim of the appellant that the sale be upheld. | 1[ds]2. The litigation itself arose by way of a writ petition challenging the setting aside of the sale by the Board of Revenue. According to thepurchaser, there was no legal ground or even power to set aside the sale which had already been confirmed. The High Court, at the second tier, i.e. in appeal before the Division Bench, took the view that the sale was bad and liable to be set aside on the short ground that the balance of 75% of the sale price had not been deposited within 30 days of the receipt of the notice as required by Section 135(b)(2). We have been taken by counsel for the appellant, Shri Gupte, through the basic facts necessary for appreciating his contention that his client had actually made the deposit within 30 days. It is a simple case ofon the part of the High Court. Therefore, we see no way to uphold the finding of the High Court that the deposit was made beyond time and the sale was void. In the result, we allow the appeal, hold the sale good but direct as earlier stated that the appellant do deposit Rs. 1380 which means that the State would have realised the entire arrear due from the Abkari contractor. It is worthwhile noticing that the latter has not cared to appear in this Court or contest the claim of the appellant that the sale be upheld. | 1 | 459 | 268 | ### 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:
KRISHNA IYER, J.1. The controversy in this case may, without caricature, be described as a storm in a teacup. A sale of the property of the second respondent, who was an Abkari contractor in arrears, was held by the tahsildar and the purchaser, the highest bidder, is the appellant. The bid amount for which the sale was knocked down was Rs. 4050. Although the total amount due from the Abkari contractor was Rs. 8, 000 odd, part of it was penalty for default in payment, which eventually was waived by the State Government. Thus, what was realisable from the contractor was only Rs. 5429.67. The sale having fetched Rs. 4050, a balance of Rs. 1379.67 is all that the State is entitled to get. In the light of what we propose to hold and, on a suggestion from the Court, the appellant has agreed to deposit the balance of Rs. 1379.67 rounded off into Rs. 1380 into the treasury within one month from today.2. The litigation itself arose by way of a writ petition challenging the setting aside of the sale by the Board of Revenue. According to the appellant-auction purchaser, there was no legal ground or even power to set aside the sale which had already been confirmed. The High Court, at the second tier, i.e. in appeal before the Division Bench, took the view that the sale was bad and liable to be set aside on the short ground that the balance of 75% of the sale price had not been deposited within 30 days of the receipt of the notice as required by Section 135(b)(2). We have been taken by counsel for the appellant, Shri Gupte, through the basic facts necessary for appreciating his contention that his client had actually made the deposit within 30 days. It is a simple case of slip-up on the part of the High Court. Therefore, we see no way to uphold the finding of the High Court that the deposit was made beyond time and the sale was void. In the result, we allow the appeal, hold the sale good but direct as earlier stated that the appellant do deposit Rs. 1380 which means that the State would have realised the entire arrear due from the Abkari contractor. It is worthwhile noticing that the latter has not cared to appear in this Court or contest the claim of the appellant that the sale be upheld.
### Response:
1
### Explanation:
2. The litigation itself arose by way of a writ petition challenging the setting aside of the sale by the Board of Revenue. According to thepurchaser, there was no legal ground or even power to set aside the sale which had already been confirmed. The High Court, at the second tier, i.e. in appeal before the Division Bench, took the view that the sale was bad and liable to be set aside on the short ground that the balance of 75% of the sale price had not been deposited within 30 days of the receipt of the notice as required by Section 135(b)(2). We have been taken by counsel for the appellant, Shri Gupte, through the basic facts necessary for appreciating his contention that his client had actually made the deposit within 30 days. It is a simple case ofon the part of the High Court. Therefore, we see no way to uphold the finding of the High Court that the deposit was made beyond time and the sale was void. In the result, we allow the appeal, hold the sale good but direct as earlier stated that the appellant do deposit Rs. 1380 which means that the State would have realised the entire arrear due from the Abkari contractor. It is worthwhile noticing that the latter has not cared to appear in this Court or contest the claim of the appellant that the sale be upheld.
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Union of India and Others Vs. Messrs Purolator India Limited | SABYASACHI MUKHARJI, J. 1. This is an appeal by special leave and is connected with Civil Appeal No. 859. This is an appeal from the judgment and order of the High Court of Delhi dated May 30, 1986. 2. It appears that in October 1975, Trade Notice were issued on the basis of the directive of the Ministry of Finance to the effect that the owners of the brand name are to be treated as the manufacturers of the goods. In April 1977, price list was submitted by the respondent declaring the assessable value on the basis of the price at which the assessee respondent sold the goods. Thereafter on April 16, 1977, there was a letter written by respondent giving the list of the customers of the respondent and clarifying the terms and conditions on which the assessee sold the goods. On August 22, 1977, the appellants wrote a letter to the assessee-respondent seeking certain information, inter alia, to the effect whether the assessee and its buyers were related person. A reply was given on September 10, 1977 by the assessee to the aforesaid letter. First notice was issued asking the assessee to show cause as to why the assessable value be not determined at the price the buyers of the assessee sold the goods (instead of the price at which the assessee sold the goods to its buyers). There was a reply and the second show cause notice was issued on January 28, 1981. These show cause notice were challenged and the High Court quashed the said notices. Aggrieved thereby, this appeal has been filed. 3. The respondent is a registered company carrying on the business of manufacturing and selling filters. Some of the goods are sold by the respondent to its customers under the respective brand names. The respondent filed a price list at which price the goods were sold to the customers. | 0[ds]2. It appears that in October 1975, Trade Notice were issued on the basis of the directive of the Ministry of Finance to the effect that the owners of the brand name are to be treated as the manufacturers of the goods. In April 1977, price list was submitted by the respondent declaring the assessable value on the basis of the price at which the assessee respondent sold the goods. Thereafter on April 16, 1977, there was a letter written by respondent giving the list of the customers of the respondent and clarifying the terms and conditions on which the assessee sold the goods. On August 22, 1977, the appellants wrote a letter to the assessee-respondent seeking certain information, inter alia, to the effect whether the assessee and its buyers were related person. A reply was given on September 10, 1977 by the assessee to the aforesaid letter. First notice was issued asking the assessee to show cause as to why the assessable value be not determined at the price the buyers of the assessee sold the goods (instead of the price at which the assessee sold the goods to its buyers). There was a reply and the second show cause notice was issued on January 28, 1981. These show cause notice were challenged and the High Court quashed the said notices. Aggrieved thereby, this appeal has been filed3. The respondent is a registered company carrying on the business of manufacturing and selling filters. Some of the goods are sold by the respondent to its customers under the respective brand names. The respondent filed a price list at which price the goods were sold to the customers | 0 | 350 | 306 | ### 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:
SABYASACHI MUKHARJI, J. 1. This is an appeal by special leave and is connected with Civil Appeal No. 859. This is an appeal from the judgment and order of the High Court of Delhi dated May 30, 1986. 2. It appears that in October 1975, Trade Notice were issued on the basis of the directive of the Ministry of Finance to the effect that the owners of the brand name are to be treated as the manufacturers of the goods. In April 1977, price list was submitted by the respondent declaring the assessable value on the basis of the price at which the assessee respondent sold the goods. Thereafter on April 16, 1977, there was a letter written by respondent giving the list of the customers of the respondent and clarifying the terms and conditions on which the assessee sold the goods. On August 22, 1977, the appellants wrote a letter to the assessee-respondent seeking certain information, inter alia, to the effect whether the assessee and its buyers were related person. A reply was given on September 10, 1977 by the assessee to the aforesaid letter. First notice was issued asking the assessee to show cause as to why the assessable value be not determined at the price the buyers of the assessee sold the goods (instead of the price at which the assessee sold the goods to its buyers). There was a reply and the second show cause notice was issued on January 28, 1981. These show cause notice were challenged and the High Court quashed the said notices. Aggrieved thereby, this appeal has been filed. 3. The respondent is a registered company carrying on the business of manufacturing and selling filters. Some of the goods are sold by the respondent to its customers under the respective brand names. The respondent filed a price list at which price the goods were sold to the customers.
### Response:
0
### Explanation:
2. It appears that in October 1975, Trade Notice were issued on the basis of the directive of the Ministry of Finance to the effect that the owners of the brand name are to be treated as the manufacturers of the goods. In April 1977, price list was submitted by the respondent declaring the assessable value on the basis of the price at which the assessee respondent sold the goods. Thereafter on April 16, 1977, there was a letter written by respondent giving the list of the customers of the respondent and clarifying the terms and conditions on which the assessee sold the goods. On August 22, 1977, the appellants wrote a letter to the assessee-respondent seeking certain information, inter alia, to the effect whether the assessee and its buyers were related person. A reply was given on September 10, 1977 by the assessee to the aforesaid letter. First notice was issued asking the assessee to show cause as to why the assessable value be not determined at the price the buyers of the assessee sold the goods (instead of the price at which the assessee sold the goods to its buyers). There was a reply and the second show cause notice was issued on January 28, 1981. These show cause notice were challenged and the High Court quashed the said notices. Aggrieved thereby, this appeal has been filed3. The respondent is a registered company carrying on the business of manufacturing and selling filters. Some of the goods are sold by the respondent to its customers under the respective brand names. The respondent filed a price list at which price the goods were sold to the customers
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National Engineering Industries Ltd Vs. State Of Rajasthan | cent of the total number of workman employed in unit of an industry may apply in the prescribed form to the Registrar for registration as a Representative Union. Then under Section 9-F [9-F. Cancellation for registration. - The Registrar shall cancel the registration of a Union - (a) if after holding such an inquiry, if any, as he deems fit he is satisfied - (i) ...........(ii) .......... (iii) that the registered Union is being conducted not bona fide in the interests of workmen but in the interest of employers to the prejudice of the interest of workmen or; (iv) ................ (b) If its registration under the Indian Trade Unions Act, 1926 (Central Act XVI of 1926) is cancelled] registration of a representative union can be cancelled on various grounds mentioned therein and one of such grounds is if, after holding such an inquiry, if any, as the Registrar deems fit he is satisfied that the registered union is being conducted not bona fide in the interest of the workman but in the interest of the employees to the prejudice of the interest of the workman. We have already quoted Section 9-E as to how a representative union is to be registered. Proviso to that Section makes it clear that if there are two are more unions fulfilling the criteria laid down in Section 9-D and apply for registration then the union having the largest membership of the employee has to be registered. As to what is representative union is not defined in the Act but in common parlance it would mean that it represents all the workers. It is not the case of the Workers Union that registration of the Labour Union is liable to be cancelled on any ground whatsoever. Notice given by Workers Union under sub-section (2) of Section 19 of the Act is obviously invalid as it did not represent majority of the persons bound by the settlement nor it is a representative union. In this view of the matter it is not necessary for us to consider what were the demands raised by the Workers Union in its charter which were not covered by the tripartite settlement. 24. It has not been shown to us as to how a settlement arrived at on a holiday would be invalid. We do not think there is any bar in having conciliation proceedings on a holiday and to arrive at a settlement. On a holiday atmosphere is rather more relaxed. Learned single Judge in his judgment did not examine with reference to each of the demands raised by the Workers Union as to why it was not covered under the tripartite settlement and even the earlier settlement of 1983. 25. Industrial Tribunal is the creation statute and it gets jurisdiction on the basis of reference. It cannot go into the question of validity of the reference. Question before the High Court was one of jurisdiction which it failed to consider. A tripartite settlement has been arrived at among the management, Labour Union and the Staff Union. When such a settlement is arrived at it is a package deal. In such a deal some demands may be left out. It is not that demands, which are left out, should be specifically mentioned in the settlement. It is not the contention of Workers Union that tripartite settlement is in any way mala fide. It has been contended by the Workers Union that the settlement was not arrived at during the conciliation proceedings under Section 12 of the Act and as such not binding on the members of the Workers Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings. 26. State Government failed to give due consideration to the direction of the High Court in its judgment dated March 23, 1989. State Government also failed in its duty to bring to the notice of the High Court of its notification dated March 17, 1989 making the impugned reference. It appears to us that the reference had occasioned while the judgment had been reserved by the High Court. In any case it was expected on the State Government to bring to the notice of the High Court before making a reference its decision to make the reference. After the judgment had been announced and directions issued by the High Court to hear the appellant it was incumbent of the State Government, in the circumstances of the case, to recall the reference. It could not direct the appellant to raise its objection to reference before the Industrial Tribunal for which Industrial Tribunal certainly lacked jurisdiction. State Government before making the reference did not consider all the relevant considerations which would clothe it with the power to make the reference under Section 10 of the Act. We find substance in the submissions of Mr. Pai. Wholesale reference of all the disputes in the charter of demands of Workers Union for adjudication was also bad inasmuch as many of such disputes were already the subject matter of tripartite settlement. This also shows non-application of mind by the State Government in making the reference. 27. When notice was issued on the special leave petition proceedings on the reference were stayed. Earlier also during the pendency of the writ petition before the High Court, which led to the impugned judgment proceedings, had been stayed. There has not been any progress before the Industrial Tribunal and all these years have passed. During the course of hearing we have been told that there have been even two more settlements and also that President of the Workers Union is now himself the President of the Labour Union. Even otherwise it would be futile to allow the reference to continue after lapse of all these years. This is apart from the fact that in our view reference in itself was bad as the tripartite settlement did bind the members of the Workers Union as well. | 1[ds]23. It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is no industrial dispute and none apprehended which could be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the industrial tribunal which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended appropriate government lacks power to make any reference. A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. Settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and the inducements it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the Conciliation Officer must be fair and reasonable. A settlement which is sought to be impugned has to be scanned and scrutinized.s (1) and (3) of Section 18 divide settlements into two categories, namely, (1) those arrived at outside the conciliation proceedings, and (2) those arrived at in the course of conciliation proceedings. A settlement which belongs to the first category has limited application in that it merely binds the parties to the agreement but the settlement belonging to the second category has extended application since it is binding on all the parties to the industrial disputes, to all others who were summoned to appear in the conciliation proceedings and to all persons employed in the establishment or part of the establishment, as the case may be, to which the dispute related on the date of the dispute and to all others who joined the establishment thereafter. A settlement arrived at in the course of conciliation proceedings with a recognized majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. Recognized union having majority of members is expected to protect the legitimate interest of labour and enter into a settlement in the best interest of labour. This is with the object to uphold the sanctity of settlement reached with the active assistance of the Conciliation Officer and to discourage an individual employee or minority union from scuttling the settlement. When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workman who are all parties to the industrial dispute and who may not be members of unions that are signatories to such settlement under Section 12(3) of the Act. Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. This principle of industrial democracy is the bedrock of the Act, as pointed out in the case of P. Virudhachalam and others v. Management of Lotus Mills and another, 1998(1) SCC 650. In all these negotiations based on collective bargaining individual workman necessarily recedes to the background. Settlement will encompass all the disputes existing at the time of the time of the settlement except those specifically left outThere can be many splinter groups each forming a separate trade union. Under Section 4 of the Trade Union Act, 1926 any seven or more members of a trade union can get the trade union registered under that Act. If every trade union having few members is to go on raising a dispute and the State Government making reference again and again the very purpose of settlement is defeated. Once there is a representative union, which in the present case, is the Labour Union, it is difficult to see the role of the Workers Union. If there are number of trade unions registered under the Trade Union Act, 1926 not entitled to be registered as representative unions and they raise disputes, industrial peace would be a far cry. Under Section 2(oooo) [2(oooo) `Representative Union means a Union for the time being registered as a representative Union under this Act] of the Rajasthan Act `representative union means a union for the time being registered as a representative union under the Rajasthan Act (Rajasthan Act XXXIV of 1950). Under SectionAny Union which has for the whole of the period of at least three months during the period of six months immediately proceeding the calendar month in which is so applies under this section a membership of not less than fifteen per cent of the total number of workmen employed in unit of an industry may apply in the prescribed from to the Registrar for registration as a Representative Union] of the aforesaid Rajasthan Act any Union which has for the whole of the period of at least three months during the period of six months immediately preceding the calendar month in which it so applies under this Section a membership of not less than fifteen per cent of the total number of workman employed in unit of an industry may apply in the prescribed form to the Registrar for registration as a Representative Union. Then under SectionThe Registrar shall cancel the registration of a Union(a) if after holding such an inquiry, if any, as he deems fit he is satisfied(iii) that the registered Union is being conducted not bona fide in the interests of workmen but in the interest of employers to the prejudice of the interest of workmen or;(b) If its registration under the Indian Trade Unions Act, 1926 (Central Act XVI of 1926) is cancelled] registration of a representative union can be cancelled on various grounds mentioned therein and one of such grounds is if, after holding such an inquiry, if any, as the Registrar deems fit he is satisfied that the registered union is being conducted not bona fide in the interest of the workman but in the interest of the employees to the prejudice of the interest of the workman. We have already quoted SectionE as to how a representative union is to be registered. Proviso to that Section makes it clear that if there are two are more unions fulfilling the criteria laid down in SectionD and apply for registration then the union having the largest membership of the employee has to be registered. As to what is representative union is not defined in the Act but in common parlance it would mean that it represents all the workers. It is not the case of the Workers Union that registration of the Labour Union is liable to be cancelled on any ground whatsoever. Notice given by Workers Union undern (2) of Section 19 of the Act is obviously invalid as it did not represent majority of the persons bound by the settlement nor it is a representative union. In this view of the matter it is not necessary for us to consider what were the demands raised by the Workers Union in its charter which were not covered by the tripartite settlement24. It has not been shown to us as to how a settlement arrived at on a holiday would be invalid. We do not think there is any bar in having conciliation proceedings on a holiday and to arrive at a settlement. On a holiday atmosphere is rather more relaxed. Learned single Judge in his judgment did not examine with reference to each of the demands raised by the Workers Union as to why it was not covered under the tripartite settlement and even the earlier settlement of 198325. Industrial Tribunal is the creation statute and it gets jurisdiction on the basis of reference. It cannot go into the question of validity of the reference. Question before the High Court was one of jurisdiction which it failed to consider. A tripartite settlement has been arrived at among the management, Labour Union and the Staff Union. When such a settlement is arrived at it is a package deal. In such a deal some demands may be left out. It is not that demands, which are left out, should be specifically mentioned in the settlement. It is not the contention of Workers Union that tripartite settlement is in any way mala fide. It has been contended by the Workers Union that the settlement was not arrived at during the conciliation proceedings under Section 12 of the Act and as such not binding on the members of the Workers Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings26. State Government failed to give due consideration to the direction of the High Court in its judgment dated March 23, 1989. State Government also failed in its duty to bring to the notice of the High Court of its notification dated March 17, 1989 making the impugned reference. It appears to us that the reference had occasioned while the judgment had been reserved by the High Court. In any case it was expected on the State Government to bring to the notice of the High Court before making a reference its decision to make the reference. After the judgment had been announced and directions issued by the High Court to hear the appellant it was incumbent of the State Government, in the circumstances of the case, to recall the reference. It could not direct the appellant to raise its objection to reference before the Industrial Tribunal for which Industrial Tribunal certainly lacked jurisdiction. State Government before making the reference did not consider all the relevant considerations which would clothe it with the power to make the reference under Section 10 of the Act. We find substance in the submissions of Mr. Pai. Wholesale reference of all the disputes in the charter of demands of Workers Union for adjudication was also bad inasmuch as many of such disputes were already the subject matter of tripartite settlement. This also showsn of mind by the State Government in making the reference27. When notice was issued on the special leave petition proceedings on the reference were stayed. Earlier also during the pendency of the writ petition before the High Court, which led to the impugned judgment proceedings, had been stayed. There has not been any progress before the Industrial Tribunal and all these years have passed. During the course of hearing we have been told that there have been even two more settlements and also that President of the Workers Union is now himself the President of the Labour Union. Even otherwise it would be futile to allow the reference to continue after lapse of all these years. This is apart from the fact that in our view reference in itself was bad as the tripartite settlement did bind the members of the Workers Union as well. | 1 | 12,186 | 2,058 | ### 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:
cent of the total number of workman employed in unit of an industry may apply in the prescribed form to the Registrar for registration as a Representative Union. Then under Section 9-F [9-F. Cancellation for registration. - The Registrar shall cancel the registration of a Union - (a) if after holding such an inquiry, if any, as he deems fit he is satisfied - (i) ...........(ii) .......... (iii) that the registered Union is being conducted not bona fide in the interests of workmen but in the interest of employers to the prejudice of the interest of workmen or; (iv) ................ (b) If its registration under the Indian Trade Unions Act, 1926 (Central Act XVI of 1926) is cancelled] registration of a representative union can be cancelled on various grounds mentioned therein and one of such grounds is if, after holding such an inquiry, if any, as the Registrar deems fit he is satisfied that the registered union is being conducted not bona fide in the interest of the workman but in the interest of the employees to the prejudice of the interest of the workman. We have already quoted Section 9-E as to how a representative union is to be registered. Proviso to that Section makes it clear that if there are two are more unions fulfilling the criteria laid down in Section 9-D and apply for registration then the union having the largest membership of the employee has to be registered. As to what is representative union is not defined in the Act but in common parlance it would mean that it represents all the workers. It is not the case of the Workers Union that registration of the Labour Union is liable to be cancelled on any ground whatsoever. Notice given by Workers Union under sub-section (2) of Section 19 of the Act is obviously invalid as it did not represent majority of the persons bound by the settlement nor it is a representative union. In this view of the matter it is not necessary for us to consider what were the demands raised by the Workers Union in its charter which were not covered by the tripartite settlement. 24. It has not been shown to us as to how a settlement arrived at on a holiday would be invalid. We do not think there is any bar in having conciliation proceedings on a holiday and to arrive at a settlement. On a holiday atmosphere is rather more relaxed. Learned single Judge in his judgment did not examine with reference to each of the demands raised by the Workers Union as to why it was not covered under the tripartite settlement and even the earlier settlement of 1983. 25. Industrial Tribunal is the creation statute and it gets jurisdiction on the basis of reference. It cannot go into the question of validity of the reference. Question before the High Court was one of jurisdiction which it failed to consider. A tripartite settlement has been arrived at among the management, Labour Union and the Staff Union. When such a settlement is arrived at it is a package deal. In such a deal some demands may be left out. It is not that demands, which are left out, should be specifically mentioned in the settlement. It is not the contention of Workers Union that tripartite settlement is in any way mala fide. It has been contended by the Workers Union that the settlement was not arrived at during the conciliation proceedings under Section 12 of the Act and as such not binding on the members of the Workers Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings. 26. State Government failed to give due consideration to the direction of the High Court in its judgment dated March 23, 1989. State Government also failed in its duty to bring to the notice of the High Court of its notification dated March 17, 1989 making the impugned reference. It appears to us that the reference had occasioned while the judgment had been reserved by the High Court. In any case it was expected on the State Government to bring to the notice of the High Court before making a reference its decision to make the reference. After the judgment had been announced and directions issued by the High Court to hear the appellant it was incumbent of the State Government, in the circumstances of the case, to recall the reference. It could not direct the appellant to raise its objection to reference before the Industrial Tribunal for which Industrial Tribunal certainly lacked jurisdiction. State Government before making the reference did not consider all the relevant considerations which would clothe it with the power to make the reference under Section 10 of the Act. We find substance in the submissions of Mr. Pai. Wholesale reference of all the disputes in the charter of demands of Workers Union for adjudication was also bad inasmuch as many of such disputes were already the subject matter of tripartite settlement. This also shows non-application of mind by the State Government in making the reference. 27. When notice was issued on the special leave petition proceedings on the reference were stayed. Earlier also during the pendency of the writ petition before the High Court, which led to the impugned judgment proceedings, had been stayed. There has not been any progress before the Industrial Tribunal and all these years have passed. During the course of hearing we have been told that there have been even two more settlements and also that President of the Workers Union is now himself the President of the Labour Union. Even otherwise it would be futile to allow the reference to continue after lapse of all these years. This is apart from the fact that in our view reference in itself was bad as the tripartite settlement did bind the members of the Workers Union as well.
### Response:
1
### Explanation:
period of six months immediately preceding the calendar month in which it so applies under this Section a membership of not less than fifteen per cent of the total number of workman employed in unit of an industry may apply in the prescribed form to the Registrar for registration as a Representative Union. Then under SectionThe Registrar shall cancel the registration of a Union(a) if after holding such an inquiry, if any, as he deems fit he is satisfied(iii) that the registered Union is being conducted not bona fide in the interests of workmen but in the interest of employers to the prejudice of the interest of workmen or;(b) If its registration under the Indian Trade Unions Act, 1926 (Central Act XVI of 1926) is cancelled] registration of a representative union can be cancelled on various grounds mentioned therein and one of such grounds is if, after holding such an inquiry, if any, as the Registrar deems fit he is satisfied that the registered union is being conducted not bona fide in the interest of the workman but in the interest of the employees to the prejudice of the interest of the workman. We have already quoted SectionE as to how a representative union is to be registered. Proviso to that Section makes it clear that if there are two are more unions fulfilling the criteria laid down in SectionD and apply for registration then the union having the largest membership of the employee has to be registered. As to what is representative union is not defined in the Act but in common parlance it would mean that it represents all the workers. It is not the case of the Workers Union that registration of the Labour Union is liable to be cancelled on any ground whatsoever. Notice given by Workers Union undern (2) of Section 19 of the Act is obviously invalid as it did not represent majority of the persons bound by the settlement nor it is a representative union. In this view of the matter it is not necessary for us to consider what were the demands raised by the Workers Union in its charter which were not covered by the tripartite settlement24. It has not been shown to us as to how a settlement arrived at on a holiday would be invalid. We do not think there is any bar in having conciliation proceedings on a holiday and to arrive at a settlement. On a holiday atmosphere is rather more relaxed. Learned single Judge in his judgment did not examine with reference to each of the demands raised by the Workers Union as to why it was not covered under the tripartite settlement and even the earlier settlement of 198325. Industrial Tribunal is the creation statute and it gets jurisdiction on the basis of reference. It cannot go into the question of validity of the reference. Question before the High Court was one of jurisdiction which it failed to consider. A tripartite settlement has been arrived at among the management, Labour Union and the Staff Union. When such a settlement is arrived at it is a package deal. In such a deal some demands may be left out. It is not that demands, which are left out, should be specifically mentioned in the settlement. It is not the contention of Workers Union that tripartite settlement is in any way mala fide. It has been contended by the Workers Union that the settlement was not arrived at during the conciliation proceedings under Section 12 of the Act and as such not binding on the members of the Workers Union. This contention is without any basis as the recitals to the tripartite settlement clearly show that the settlement was arrived at during the conciliation proceedings26. State Government failed to give due consideration to the direction of the High Court in its judgment dated March 23, 1989. State Government also failed in its duty to bring to the notice of the High Court of its notification dated March 17, 1989 making the impugned reference. It appears to us that the reference had occasioned while the judgment had been reserved by the High Court. In any case it was expected on the State Government to bring to the notice of the High Court before making a reference its decision to make the reference. After the judgment had been announced and directions issued by the High Court to hear the appellant it was incumbent of the State Government, in the circumstances of the case, to recall the reference. It could not direct the appellant to raise its objection to reference before the Industrial Tribunal for which Industrial Tribunal certainly lacked jurisdiction. State Government before making the reference did not consider all the relevant considerations which would clothe it with the power to make the reference under Section 10 of the Act. We find substance in the submissions of Mr. Pai. Wholesale reference of all the disputes in the charter of demands of Workers Union for adjudication was also bad inasmuch as many of such disputes were already the subject matter of tripartite settlement. This also showsn of mind by the State Government in making the reference27. When notice was issued on the special leave petition proceedings on the reference were stayed. Earlier also during the pendency of the writ petition before the High Court, which led to the impugned judgment proceedings, had been stayed. There has not been any progress before the Industrial Tribunal and all these years have passed. During the course of hearing we have been told that there have been even two more settlements and also that President of the Workers Union is now himself the President of the Labour Union. Even otherwise it would be futile to allow the reference to continue after lapse of all these years. This is apart from the fact that in our view reference in itself was bad as the tripartite settlement did bind the members of the Workers Union as well.
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The Commissioner Of Income-Tax, West Bengal Vs. The Calcutta Stock Exchange Association Ltd | of sub-s. (6) of S. 10 to associations like the one before us.12. The other case to which our attention was drawn is 1955-27 ITR 585 (Trav-Co) (supra). The facts of that case are not similar to those of the case before us, but the ratio decidendi of that case are relevant. That case referred to the Alleppey Chamber of Commerce. The Chamber inaugurated a produce section with the object o promoting the interests of merchants in general, and of those engaged in the produce trade, in particular; of acting as arbitrators and collecting and publishing information relating to the produce trade. Members were admitted to the produce section on payment of admission fees, monthly fees and contributions at certain prescribed rates. The question which was referred to the High Court, was whether the receipts by way of fees and contributions, could be chargeable under S. 10(6) of the Act, and it was answered in the affirmative.13. Though cases in England, by way of precedent or the decision of the case in hand, have not been cited at the Bar, apparently because the scheme of the Income-tax law in England is different and the words of the statute are not in pari materia yet there are some cases which throw some light on the controversy before us. For example, the case of Carlisle and Silloth Golf Club v. Smith, (1952) 6 Tax Cas 48 related to a golf club which was not incorporated. It was admittedly bona fide members club, but under one of the terms of its lease, it had to admit non-members to play on its course on payment of "green fees" at certain prescribed rates. Those fees were paid by non-members, Receipts from those fees were entered in the general accounts of the Club, thus, showing an annual excess of receipts over expenditure of the Club as a whole. It was held by Hamilton J. (as he then was), that the Club carried on a concern or business in respect of which it received remuneration which was assessable to income-tax. He pointed out that the receipts from non-members went to augment the funds of the Club, and the revenue thus received was applied for the purposes of the Club - towards its general expenditure. The case was taken up to the Court of Appeal, and the decision of that Court is reported in the same Volume at P. 198. The Court of Appeal affirmed the decision and dismissed the appeal.14. The judgment of the Kings Bench Division in Liverpool Corn Trade Association Ltd. v. Monks, 1926-10 Tax Cas 442 was based on facts which are similar to the facts of the present case. In that case, The Liverpool Corn Trade Association, Limited, was an incorporated body under the Companies Act, with the object, inter alia, of protecting the interests of the corn trade, and of providing a clearing house, a market, an exchange, and arbitration and other facilities to the trade. Membership of the Association was confined to persons engaged in the corn trade. Each member was required to have one share in the company, an had to pay an entrance fee and an annual subscription. Non-members could also become subscribers. Payments were made to the Association by members and others for services rendered through the clearing house, etc. The assessee was taxed on the excess of its receipts over expenditure. On appeal to the Special Commissioners, they upheld the assessment. One of the points raised before the Special Commissioners, was that transactions with its members were mutual ones, and that any surplus arising from such transactions, was not a profit assessable to income-tax. On appeal, the High Court agreed with the determination of the Special Commissioners, and held that any profit arising from the Associations transactions with members, was assessable to income-tax as part of the profits of its business, and that the entrance fees and subscriptions received from members must be included in the computation of such profits.15. It was suggested that the service in this case, if any, was extremely trivial and the remuneration which was large was for that reason not definitely related to the service.It was held by Upjohn, J. in Bradbury (H. M. Inspector of Taxes) v. Arnold, (1957) 37 Tax Cas 665 at p. 669, that the extent of the services was of no materiality. There, the question was being dealt with under Case VI of Schedule D of the Income-tax Act, 1918.The learned Judge observed:"There is no doubt that a contract for services may, and clearly does, form a matter for assessment under Case VI of Schedule D, and not the less so that the services to be rendered are trivial or that they are to be rendered once and for all so that the remuneration may be regarded as a casual profit arising out of a single and isolated transaction."The same view was expressed by Harman, J. in Housden (Inspector of Taxes) v. Marshall , 1958-3 All ER 639. In that case, a well-known jockey contracted with a newspaper company to make available to its nominee "reminiscences of his life and experiences on the turf for the purpose of writing a series of four articles", and to provide photographs, press cuttings, etc. He was paid ? 750. The question was whether this amounted to sale of property, or was a payment for services rendered. It was held at it was the latter, and that it did not matter if the service rendered was trivial.16. In view of what we have said above as to the nature of the service which the Association performed in respect of the Assistants, the payment of the fee was definitely related to that service. It is, therefore, plain that the case fell within S. 10(6) of the Act. It must, therefore, be held that the question referred to the High Court should have been answered in the affirmative, and that the High Court was in error in giving its opinion to the contrary. | 1[ds]13. Though cases in England, by way of precedent or the decision of the case in hand, have not been cited at the Bar, apparently because the scheme of the Income-tax law in England is different and the words of the statute are not in pari materia yet there are some cases which throw some light on the controversy before us. For example, the case of Carlisle and Silloth Golf Club v. Smith, (1952) 6 Tax Cas 48 related to a golf club which was not incorporated. It was admittedly bona fide members club, but under one of the terms of its lease, it had to admit non-members to play on its course on payment of "green fees" at certain prescribed rates. Those fees were paid by non-members, Receipts from those fees were entered in the general accounts of the Club, thus, showing an annual excess of receipts over expenditure of the Club as a whole. It was held by Hamilton J. (as he then was), that the Club carried on a concern or business in respect of which it received remuneration which was assessable to income-tax. He pointed out that the receipts from non-members went to augment the funds of the Club, and the revenue thus received was applied for the purposes of the Club - towards its general expenditure. The case was taken up to the Court of Appeal, and the decision of that Court is reported in the same Volume at P. 198. The Court of Appeal affirmed the decision and dismissed the appeal.14. The judgment of the Kings Bench Division inLiverpool Corn Trade Association Ltd. v. Monks, 1926-10 Tax Cas442 was based on facts which are similar to the facts of the present case. In that case, The Liverpool Corn Trade Association, Limited, was an incorporated body under the Companies Act, with the object, inter alia, of protecting the interests of the corn trade, and of providing a clearing house, a market, an exchange, and arbitration and other facilities to the trade. Membership of the Association was confined to persons engaged in the corn trade. Each member was required to have one share in the company, an had to pay an entrance fee and an annual subscription. Non-members could also become subscribers. Payments were made to the Association by members and others for services rendered through the clearing house, etc. The assessee was taxed on the excess of its receipts over expenditure. On appeal to the Special Commissioners, they upheld the assessment. One of the points raised before the Special Commissioners, was that transactions with its members were mutual ones, and that any surplus arising from such transactions, was not a profit assessable to income-tax. On appeal, the High Court agreed with the determination of the Special Commissioners, and held that any profit arising from the Associations transactions with members, was assessable to income-tax as part of the profits of its business, and that the entrance fees and subscriptions received from members must be included in the computation of such profits.It was suggested that the service in this case, if any, was extremely trivial and the remuneration which was large was for that reason not definitely related to the service.It was held by Upjohn, J. in Bradbury(H. M. Inspector of Taxes) v. Arnold, (1957) 37 Tax Cas 665 at p.669, that the extent of the services was of no materiality. There, the question was being dealt with under Case VI of Schedule D of the Income-tax Act, 1918.The learned Judgeis no doubt that a contract for services may, and clearly does, form a matter for assessment under Case VI of Schedule D, and not the less so that the services to be rendered are trivial or that they are to be rendered once and for all so that the remuneration may be regarded as a casual profit arising out of a single and isolatedsame view was expressed by Harman, J. in Housden(Inspector of Taxes) v. Marshall , 1958-3 All ERIn that case, a well-known jockey contracted with a newspaper company to make available to its nominee "reminiscences of his life and experiences on the turf for the purpose of writing a series of four articles", and to provide photographs, press cuttings, etc. He was paid ? 750. The question was whether this amounted to sale of property, or was a payment for services rendered. It was held at it was the latter, and that it did not matter if the service rendered was trivial.16. In view of what we have said above as to the nature of the service which the Association performed in respect of the Assistants, the payment of the fee was definitely related to that service. It is, therefore, plain that the case fell within S. 10(6) of the Act. It must, therefore, be held that the question referred to the High Court should have been answered in the affirmative, and that the High Court was in error in giving its opinion to the contrary. | 1 | 6,095 | 939 | ### 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:
of sub-s. (6) of S. 10 to associations like the one before us.12. The other case to which our attention was drawn is 1955-27 ITR 585 (Trav-Co) (supra). The facts of that case are not similar to those of the case before us, but the ratio decidendi of that case are relevant. That case referred to the Alleppey Chamber of Commerce. The Chamber inaugurated a produce section with the object o promoting the interests of merchants in general, and of those engaged in the produce trade, in particular; of acting as arbitrators and collecting and publishing information relating to the produce trade. Members were admitted to the produce section on payment of admission fees, monthly fees and contributions at certain prescribed rates. The question which was referred to the High Court, was whether the receipts by way of fees and contributions, could be chargeable under S. 10(6) of the Act, and it was answered in the affirmative.13. Though cases in England, by way of precedent or the decision of the case in hand, have not been cited at the Bar, apparently because the scheme of the Income-tax law in England is different and the words of the statute are not in pari materia yet there are some cases which throw some light on the controversy before us. For example, the case of Carlisle and Silloth Golf Club v. Smith, (1952) 6 Tax Cas 48 related to a golf club which was not incorporated. It was admittedly bona fide members club, but under one of the terms of its lease, it had to admit non-members to play on its course on payment of "green fees" at certain prescribed rates. Those fees were paid by non-members, Receipts from those fees were entered in the general accounts of the Club, thus, showing an annual excess of receipts over expenditure of the Club as a whole. It was held by Hamilton J. (as he then was), that the Club carried on a concern or business in respect of which it received remuneration which was assessable to income-tax. He pointed out that the receipts from non-members went to augment the funds of the Club, and the revenue thus received was applied for the purposes of the Club - towards its general expenditure. The case was taken up to the Court of Appeal, and the decision of that Court is reported in the same Volume at P. 198. The Court of Appeal affirmed the decision and dismissed the appeal.14. The judgment of the Kings Bench Division in Liverpool Corn Trade Association Ltd. v. Monks, 1926-10 Tax Cas 442 was based on facts which are similar to the facts of the present case. In that case, The Liverpool Corn Trade Association, Limited, was an incorporated body under the Companies Act, with the object, inter alia, of protecting the interests of the corn trade, and of providing a clearing house, a market, an exchange, and arbitration and other facilities to the trade. Membership of the Association was confined to persons engaged in the corn trade. Each member was required to have one share in the company, an had to pay an entrance fee and an annual subscription. Non-members could also become subscribers. Payments were made to the Association by members and others for services rendered through the clearing house, etc. The assessee was taxed on the excess of its receipts over expenditure. On appeal to the Special Commissioners, they upheld the assessment. One of the points raised before the Special Commissioners, was that transactions with its members were mutual ones, and that any surplus arising from such transactions, was not a profit assessable to income-tax. On appeal, the High Court agreed with the determination of the Special Commissioners, and held that any profit arising from the Associations transactions with members, was assessable to income-tax as part of the profits of its business, and that the entrance fees and subscriptions received from members must be included in the computation of such profits.15. It was suggested that the service in this case, if any, was extremely trivial and the remuneration which was large was for that reason not definitely related to the service.It was held by Upjohn, J. in Bradbury (H. M. Inspector of Taxes) v. Arnold, (1957) 37 Tax Cas 665 at p. 669, that the extent of the services was of no materiality. There, the question was being dealt with under Case VI of Schedule D of the Income-tax Act, 1918.The learned Judge observed:"There is no doubt that a contract for services may, and clearly does, form a matter for assessment under Case VI of Schedule D, and not the less so that the services to be rendered are trivial or that they are to be rendered once and for all so that the remuneration may be regarded as a casual profit arising out of a single and isolated transaction."The same view was expressed by Harman, J. in Housden (Inspector of Taxes) v. Marshall , 1958-3 All ER 639. In that case, a well-known jockey contracted with a newspaper company to make available to its nominee "reminiscences of his life and experiences on the turf for the purpose of writing a series of four articles", and to provide photographs, press cuttings, etc. He was paid ? 750. The question was whether this amounted to sale of property, or was a payment for services rendered. It was held at it was the latter, and that it did not matter if the service rendered was trivial.16. In view of what we have said above as to the nature of the service which the Association performed in respect of the Assistants, the payment of the fee was definitely related to that service. It is, therefore, plain that the case fell within S. 10(6) of the Act. It must, therefore, be held that the question referred to the High Court should have been answered in the affirmative, and that the High Court was in error in giving its opinion to the contrary.
### Response:
1
### Explanation:
13. Though cases in England, by way of precedent or the decision of the case in hand, have not been cited at the Bar, apparently because the scheme of the Income-tax law in England is different and the words of the statute are not in pari materia yet there are some cases which throw some light on the controversy before us. For example, the case of Carlisle and Silloth Golf Club v. Smith, (1952) 6 Tax Cas 48 related to a golf club which was not incorporated. It was admittedly bona fide members club, but under one of the terms of its lease, it had to admit non-members to play on its course on payment of "green fees" at certain prescribed rates. Those fees were paid by non-members, Receipts from those fees were entered in the general accounts of the Club, thus, showing an annual excess of receipts over expenditure of the Club as a whole. It was held by Hamilton J. (as he then was), that the Club carried on a concern or business in respect of which it received remuneration which was assessable to income-tax. He pointed out that the receipts from non-members went to augment the funds of the Club, and the revenue thus received was applied for the purposes of the Club - towards its general expenditure. The case was taken up to the Court of Appeal, and the decision of that Court is reported in the same Volume at P. 198. The Court of Appeal affirmed the decision and dismissed the appeal.14. The judgment of the Kings Bench Division inLiverpool Corn Trade Association Ltd. v. Monks, 1926-10 Tax Cas442 was based on facts which are similar to the facts of the present case. In that case, The Liverpool Corn Trade Association, Limited, was an incorporated body under the Companies Act, with the object, inter alia, of protecting the interests of the corn trade, and of providing a clearing house, a market, an exchange, and arbitration and other facilities to the trade. Membership of the Association was confined to persons engaged in the corn trade. Each member was required to have one share in the company, an had to pay an entrance fee and an annual subscription. Non-members could also become subscribers. Payments were made to the Association by members and others for services rendered through the clearing house, etc. The assessee was taxed on the excess of its receipts over expenditure. On appeal to the Special Commissioners, they upheld the assessment. One of the points raised before the Special Commissioners, was that transactions with its members were mutual ones, and that any surplus arising from such transactions, was not a profit assessable to income-tax. On appeal, the High Court agreed with the determination of the Special Commissioners, and held that any profit arising from the Associations transactions with members, was assessable to income-tax as part of the profits of its business, and that the entrance fees and subscriptions received from members must be included in the computation of such profits.It was suggested that the service in this case, if any, was extremely trivial and the remuneration which was large was for that reason not definitely related to the service.It was held by Upjohn, J. in Bradbury(H. M. Inspector of Taxes) v. Arnold, (1957) 37 Tax Cas 665 at p.669, that the extent of the services was of no materiality. There, the question was being dealt with under Case VI of Schedule D of the Income-tax Act, 1918.The learned Judgeis no doubt that a contract for services may, and clearly does, form a matter for assessment under Case VI of Schedule D, and not the less so that the services to be rendered are trivial or that they are to be rendered once and for all so that the remuneration may be regarded as a casual profit arising out of a single and isolatedsame view was expressed by Harman, J. in Housden(Inspector of Taxes) v. Marshall , 1958-3 All ERIn that case, a well-known jockey contracted with a newspaper company to make available to its nominee "reminiscences of his life and experiences on the turf for the purpose of writing a series of four articles", and to provide photographs, press cuttings, etc. He was paid ? 750. The question was whether this amounted to sale of property, or was a payment for services rendered. It was held at it was the latter, and that it did not matter if the service rendered was trivial.16. In view of what we have said above as to the nature of the service which the Association performed in respect of the Assistants, the payment of the fee was definitely related to that service. It is, therefore, plain that the case fell within S. 10(6) of the Act. It must, therefore, be held that the question referred to the High Court should have been answered in the affirmative, and that the High Court was in error in giving its opinion to the contrary.
|
MAHARASHTRA SEAMLESS LIMITED Vs. PADMANABHAN VENKATESH | resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors. 24. On behalf of the Indian Bank and the said promoter of the corporate debtor, reliance was placed on Clause 35 of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016: 35. Liquidation value. (1) Liquidation value is the estimated realizable value of the assets of the corporate debtor if the corporate debtor were to be liquidated on the insolvency commencement date. (2) Liquidation value shall be determined in the following manner: (a) the two registered valuers appointed under Regulation 27 shall submit to the interim resolution professional or the resolution professional, as the case may be, an estimate of the liquidation value computed in accordance with internationally accepted valuation standards, after physical verification of the inventory and fixed assets of the corporate debtor; (b) if in the opinion of the interim resolution professional or the resolution professional, as the case may be, the two estimates are significantly different, he may appoint another registered valuer who shall submit an estimate computed in the same manner; and (c) the average of the two closest estimates shall be considered the liquidation value. (3) The resolution professional shall provide the liquidation value to the committee in electronic form. 25. Now the question arises as to whether, while approving a resolution plan, the Adjudicating Authority could reassess a resolution plan approved by the Committee of Creditors, even if the same otherwise complies with the requirement of Section 31 of the Code. Learned counsel appearing for the Indian Bank and the said erstwhile promoter of the corporate debtor have emphasised that there could be no reason to release property valued at Rs.597.54 crores to MSL for Rs.477 crores. Learned counsel appearing for these two respondents have sought to strengthen their submission on this point referring to the other Resolution Applicant whose bid was for Rs.490 crores which is more than that of the appellant MSL. 26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment. 27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan. 28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront. 29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not. 30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question. | 1[ds]16. It is admitted position that approximately Rs.472 crores have been remitted to the financial creditors which was received from Mr. Sibals clients. The D.B. International Asia Limited, having 73.40% voting shares in the CoC has also assailed the impugned order on grounds similar to that taken by the MSLBefore we proceed to answer these two questions, we must indicate that before the Appellate Authority substantial argument was advanced over failure on the part of the Adjudicating Authority to maintain parity between the financial creditors and operational creditors on the aspect of clearing duesWe have taken note of submission made by Mr. Singhvi that the operational creditors of the corporate debtor come way down in the priority list for distribution of assets under Section 53 of the Code in forming our opinion over applicability of clause 38(1) of the 2016 Regulations expressed in the previous paragraph. But on this point, a clear guidance comes from the decision of co-ordinate Bench in the case of Essar Steel (supra) on the point of dealing with the claims of operational creditors26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question. | 1 | 9,123 | 920 | ### 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:
resolution applicant shall obtain the approval of the Competition Commission of India under that Act prior to the approval of such resolution plan by the committee of creditors. 24. On behalf of the Indian Bank and the said promoter of the corporate debtor, reliance was placed on Clause 35 of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016: 35. Liquidation value. (1) Liquidation value is the estimated realizable value of the assets of the corporate debtor if the corporate debtor were to be liquidated on the insolvency commencement date. (2) Liquidation value shall be determined in the following manner: (a) the two registered valuers appointed under Regulation 27 shall submit to the interim resolution professional or the resolution professional, as the case may be, an estimate of the liquidation value computed in accordance with internationally accepted valuation standards, after physical verification of the inventory and fixed assets of the corporate debtor; (b) if in the opinion of the interim resolution professional or the resolution professional, as the case may be, the two estimates are significantly different, he may appoint another registered valuer who shall submit an estimate computed in the same manner; and (c) the average of the two closest estimates shall be considered the liquidation value. (3) The resolution professional shall provide the liquidation value to the committee in electronic form. 25. Now the question arises as to whether, while approving a resolution plan, the Adjudicating Authority could reassess a resolution plan approved by the Committee of Creditors, even if the same otherwise complies with the requirement of Section 31 of the Code. Learned counsel appearing for the Indian Bank and the said erstwhile promoter of the corporate debtor have emphasised that there could be no reason to release property valued at Rs.597.54 crores to MSL for Rs.477 crores. Learned counsel appearing for these two respondents have sought to strengthen their submission on this point referring to the other Resolution Applicant whose bid was for Rs.490 crores which is more than that of the appellant MSL. 26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment. 27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan. 28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront. 29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not. 30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question.
### Response:
1
### Explanation:
16. It is admitted position that approximately Rs.472 crores have been remitted to the financial creditors which was received from Mr. Sibals clients. The D.B. International Asia Limited, having 73.40% voting shares in the CoC has also assailed the impugned order on grounds similar to that taken by the MSLBefore we proceed to answer these two questions, we must indicate that before the Appellate Authority substantial argument was advanced over failure on the part of the Adjudicating Authority to maintain parity between the financial creditors and operational creditors on the aspect of clearing duesWe have taken note of submission made by Mr. Singhvi that the operational creditors of the corporate debtor come way down in the priority list for distribution of assets under Section 53 of the Code in forming our opinion over applicability of clause 38(1) of the 2016 Regulations expressed in the previous paragraph. But on this point, a clear guidance comes from the decision of co-ordinate Bench in the case of Essar Steel (supra) on the point of dealing with the claims of operational creditors26. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in the case of Essar Steel (supra). We have quoted above the relevant passages from this judgment27. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the Adjudicating Authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the Adjudicating Authority in approving the resolution plan28. The Appellate Authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the Adjudicating Authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the Adjudicating Authority in limited judicial review has been laid down in the case of Essar Steel (supra), the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the Appellate Authority ought to have interfered with the order of the Adjudicating Authority in directing the successful Resolution Applicant to enhance their fund inflow upfront29. So far as the IA taken out by the MSL is concerned, in our opinion they cannot withdraw from the proceeding in the manner they have approached this Court. The exit route prescribed in Section 12-A is not applicable to a Resolution Applicant. The procedure envisaged in the said provision only applies to applicants invoking Sections 7, 9 and 10 of the code. In this case, having appealed against the NCLAT order with the object of implementing the resolution plan, MSL cannot be permitted to take a contrary stand in an application filed in connection with the very same appeal. Moreover, MSL has raised the funds upon mortgaging the assets of the corporate debtor only. In such circumstances, we are not engaging in the judicial exercise of determining the question as to whether after having been successful in a CIRP, an applicant altogether forfeits their right to withdraw from such process or not30. Certain allegations were made by the MSL over failure on the part of the Resolution Professional in taking possession of the assets of the corporate debtor and subsequently in their failure in handing over the same to MSL. These issues are factual. Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the Resolution Professional disputed such allegations. The order of the NCLAT does not deal with this aspect of the controversy and we do not think we, in exercise of our jurisdiction under Section 62 of the Code ought to engage ourselves in determining that question.
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State Of U.P Vs. Raj Narain & Ors | head of the department has not come into picture and has not had an opportunity of exercising discretion under Section 123 to claim privi1ege it will be the duty of the court to give effect to Section 123 and prevent evidence being led till the head of the department has had the opportunity of claiming privilege. But in case in which documents are summoned, it is said by counsel for the election petitioner, the opportunity of claiming privilege in a legal manner has already been furnished when summons is received by the head of the department and if he does not claim privilege the court is under no legal duty to ask him or to give him another opportunity.37.The documents in respect of which exclusion from production is claimed are the blue book being rules and instructions for the protection of the Prime Minister when on tour and in travel. Saxena came to court and gave evidence that the blue book was a document relating to the affairs of State and was not to be disclosed. The Secretary filed an affidavit on 20 September, 1973 and claimed privilege in respect of the blue book by submitting that the document related to affairs of State and should, therefore, be excluded from production.38. The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See 1973 AC 388 (Supra) at p. 40). To illustrate, the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks v. Nott Bower, (1964) 1 All ER 717).39. It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court. Objection as to production as well as admissibility contemplated in Section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singhs case (1961) 2 SCR 371 , (AIR 1961 SC 493 ) (supra).40. In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the first instance.41. This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on. The Grosvenor Hotel, London group of cases, (1963) 3 All ER 426; (1964) All ER 92; (1964) 2 All ER 674 and (1964) 3 All ER 354 (supra) in England shows that if an affidavit is defective an opportunity can be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may do so.42. The next question is whether the learned Judge was right in holding that the blue book is not an unpublished official record. On behalf of the election petitioner, it was said that a part of the document was published by the Government, viz, paragraph 71 (6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. In the Cammell Laird case, 1942 AC 624 it was said that though some of the papers had been produced before the Tribunal of Enquiry and though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given. One is that special precaution may have been taken to avoid public injury and the other is that portions of the Tribunals sittings may have been secret.In the present case, it cannot be said that the blue book is a published document. Any publication of parts of the blue book which may be described as innocuous part of the document will not render the entire document a published one.43. | 1[ds]In short, the position in law in England is that it is ultimately for the court to decide whether or not it is in the public interest that the document should be disclosed. An affidavit is necessary. Courts have some times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.24. Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two-fold. First, evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from disclosure. A party is sometimes estopped from proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law. Second, relevant facts are subject to recognised exceptions inadmissible unless they are proved by the best or the prescribed evidence.25. A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, state papers, confidential official documents and communications between the Government and its officers or between such officers are privileged from production on the ground of public policy of as being detrimental to the public interest or service.In Sukhdev Singhs case, (1961) 2 SCR 371 = (AIR 1961 SC 493 ) (supra) it was said that an objection against the production of document should be made in the form of an affidavit by the Minister or the Secretary. When an affidavit is made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person making the affidavit can be summoned to face an examination. In Sukhdev Singhs case (supra) this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents. Second the harmonious construction of Secs. l23 and 162 shows there is a power conferred on the Court under Sec. 162 to hold a preliminary enquiry into the character of the document. Third, the expression "affairs of State" in Section 123 is not capable of definition. Many illustrations are possible. "If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs". Fourth, the second limb of Section 162 refers to the objection both as to the production and the admissibility of the document. Fifth, reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury, to public interest which may result from the disclosure of document in question. That is a matter for the authority concerned to decide. But the Court is competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. That necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court. Objection as to production as well as admissibility contemplated in Section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singhs case (1961) 2 SCR 371 , (AIR 1961 SC 493 ) (supra).In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the firstis for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may dothe present case, it cannot be said that the blue book is a published document. Any publication of parts of the blue book which may be described as innocuous part of the document will not render the entire document a published one. | 1 | 7,313 | 1,018 | ### Instruction:
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head of the department has not come into picture and has not had an opportunity of exercising discretion under Section 123 to claim privi1ege it will be the duty of the court to give effect to Section 123 and prevent evidence being led till the head of the department has had the opportunity of claiming privilege. But in case in which documents are summoned, it is said by counsel for the election petitioner, the opportunity of claiming privilege in a legal manner has already been furnished when summons is received by the head of the department and if he does not claim privilege the court is under no legal duty to ask him or to give him another opportunity.37.The documents in respect of which exclusion from production is claimed are the blue book being rules and instructions for the protection of the Prime Minister when on tour and in travel. Saxena came to court and gave evidence that the blue book was a document relating to the affairs of State and was not to be disclosed. The Secretary filed an affidavit on 20 September, 1973 and claimed privilege in respect of the blue book by submitting that the document related to affairs of State and should, therefore, be excluded from production.38. The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See 1973 AC 388 (Supra) at p. 40). To illustrate, the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks v. Nott Bower, (1964) 1 All ER 717).39. It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court. Objection as to production as well as admissibility contemplated in Section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singhs case (1961) 2 SCR 371 , (AIR 1961 SC 493 ) (supra).40. In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the first instance.41. This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on. The Grosvenor Hotel, London group of cases, (1963) 3 All ER 426; (1964) All ER 92; (1964) 2 All ER 674 and (1964) 3 All ER 354 (supra) in England shows that if an affidavit is defective an opportunity can be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may do so.42. The next question is whether the learned Judge was right in holding that the blue book is not an unpublished official record. On behalf of the election petitioner, it was said that a part of the document was published by the Government, viz, paragraph 71 (6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. In the Cammell Laird case, 1942 AC 624 it was said that though some of the papers had been produced before the Tribunal of Enquiry and though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given. One is that special precaution may have been taken to avoid public injury and the other is that portions of the Tribunals sittings may have been secret.In the present case, it cannot be said that the blue book is a published document. Any publication of parts of the blue book which may be described as innocuous part of the document will not render the entire document a published one.43.
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### Explanation:
In short, the position in law in England is that it is ultimately for the court to decide whether or not it is in the public interest that the document should be disclosed. An affidavit is necessary. Courts have some times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.24. Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. The principal rules of exclusion under which evidence becomes inadmissible are two-fold. First, evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from disclosure. A party is sometimes estopped from proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law. Second, relevant facts are subject to recognised exceptions inadmissible unless they are proved by the best or the prescribed evidence.25. A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, state papers, confidential official documents and communications between the Government and its officers or between such officers are privileged from production on the ground of public policy of as being detrimental to the public interest or service.In Sukhdev Singhs case, (1961) 2 SCR 371 = (AIR 1961 SC 493 ) (supra) it was said that an objection against the production of document should be made in the form of an affidavit by the Minister or the Secretary. When an affidavit is made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person making the affidavit can be summoned to face an examination. In Sukhdev Singhs case (supra) this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents. Second the harmonious construction of Secs. l23 and 162 shows there is a power conferred on the Court under Sec. 162 to hold a preliminary enquiry into the character of the document. Third, the expression "affairs of State" in Section 123 is not capable of definition. Many illustrations are possible. "If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs". Fourth, the second limb of Section 162 refers to the objection both as to the production and the admissibility of the document. Fifth, reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury, to public interest which may result from the disclosure of document in question. That is a matter for the authority concerned to decide. But the Court is competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. That necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court. Objection as to production as well as admissibility contemplated in Section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singhs case (1961) 2 SCR 371 , (AIR 1961 SC 493 ) (supra).In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the firstis for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may dothe present case, it cannot be said that the blue book is a published document. Any publication of parts of the blue book which may be described as innocuous part of the document will not render the entire document a published one.
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Prakash Kumar @ Prakash Bhutto Vs. State of Gujarat | registered the crime and informed the superior Police Officers about the incident. PW 18 visited the scene of occurrence and recovered two empty cartridges from the place and also the chappals and slippers. Police inspector Jivabhai Ratnabai Prajapati (PW 19) took over further investigation. He visited the scene of occurrence and recorded the statements of some of the witnesses who were available. Later, the investigation was handed over to another officer and on 9-4-1994 accused No. 3 was arrested. Thereafter Police Inspector Udaykumar Tribhavan took over the investigation and arrested accused Nos. 6 and 7 on 27-7-1994. A-4, A-1 and A-2 were also arrested later. On 8-9-1994, the investigation was handed over to ACP, Shri B.R. Patil. He requested for Government sanction for invoking the provisions of TADA Act against the accused. A-8 was arrested on 12-3-1996. Accused Sattar Battery expressed his willingness to give a confession and accordingly the Assistant Commissioner of Police B.R. Patil recorded his confession under Section 15 of the TADA Act.4. PW 25, B.R. Patil, Assistant Commissioner of Police in Crime Branch at Ahemdabad arrested Babakhan s/o Ismailkhan on 11-1-1995. On 14-1-1995, accused Babakhan (A-11) expressed his desire to make a confession and he was produced before the Deputy Commissioner of Police, Shri A.K.Surolia. On the next date, that is, 15-1-1995, PW 25 was asked to produce A-11 Babakhan and his confession was recorded. Deputy Commissioner of Police, Shri A.K. Surolia gave the confession of A-11 Babakhan in a sealed cover to PW 25 B.R. Patil and asked him to produce A-11 Babakhan, along with the sealed cover containing his confession, before the Chief Metropolitan Magistrate.5. A-11 Babakhan gave a detailed statement regarding the commission of the crime and the relevant part of the confession is as follows:- "About quarter and one year, in the ninth month of 1993, during last week, Atik told me that Shejada sits in the office situated opp. Mirzapur Court where Prakash Bhutto is sitting. He told us that on 26th Noon, in Rani-Sati Hall, near Shahibaug, Underbridge, there is Community lunch of Baniya, wherein leading persons are to come and for their abduction, there would be no difficulty and crores of rupees would be obtained. After such talk, Sherjada called me, Atik, Vahab, Iqbal Bhuriyo, Salim Ando and Yasin Chipa of Jamalpur at his home he gave Point 45 Revolver to Atik and Point 38 Revolver to Ibu. The number plate of Maruti-van of Sherjada being No. GJ-9-1045 was affixed and taking it, we went to Rani Sati Hall. Salim Ando was driving the vehicle. We stood at one place. Outside the Hall, Prakash Bhutto pointed out one fat industrialist seated on the scooter by making the sign, whom we identified exactly. Salim Ando took the Maruti-van towards him and brought it near said fat man and stopped it. Lifting the said fat man and while throwing him in the vehicle, some scuffle took place. At that time, Ibu and Atik fired shots from their Revolvers and therefore, people scattered and hence, said fat man was thrown in the vehicle. Applying bandage on his eyes, via Underbridge he was brought to Amul Process House in Dani Limda. There also bandage continued on the eyes of said fat man. Sherjada and Vahab telephoned to the friends and relatives at their residence of the fat man, and demanded money. The name of the said fat man was Babulal Sanghvi. On the next day, Vahab told that transaction was over and let us release Babulal. I do not know, what amount was taken for the release of Babulal Sanghvi.. But subsequently Vahab told that Rs. 15/- lacs were obtained. Latifbhai has told not to make disposal. And Vahab applied the cotton and the bandage of medicine on the eyes of Babulal and putting Balck-gogles on it, Vahab told Atik, Ibu and Sherjada to take Babulal at Kankaria and get him seated in rickshaw, allowing him to go to Shahibaug. Accordingly, on the motor cycle of Sherjada, Atik and Ibu seated Babulal Sanghvi and dropped him at Kankaria. Subsequently Vahab gave me Rs. 50,000/- for this work." 6. Based on the above confession made by A-11 Babakhan, the appellant in Criminal Appeal No. 526/2001 was convicted for the offences punishable under Sections 120 B, 342 and 365 IPC. 7. The confession of a co-accused by itself is not sufficient to hold the other accused guilty. It has been held repeatedly by this Court that the confession of a co-accused is a fragile and feeble type of evidence and it could only be used to support the other evidence, if any, adduced by the prosecution. [See: Haricharan Kurmi Vs. State of Bihar, [1964 (6) SCR 623 ]. Though in State through Superintendent of Police, CBI/SIT Vs. Nalini and Others, (1999) 5 SCC 253 , it has been held that confession is a substantive piece of evidence, but as a Rule of Prudence the court should seek other corroborative evidence to test its veracity. 8. The prosecution could not adduce any other supporting evidence to prove the guilt of the appellant. Even based on the confession of the co-accused, the only allegation against the appellant is that he was in the company of the other co-accused and had pointed out towards the victim by making a sign whereupon the other accused over-powered the victim and took him forcibly in the Maruti van. To prove that the appellant was in the company of other accused, there is no other independent evidence. Even though the prosecution adduced other evidence to prove that the victim Babulal Misrimal Jain was forcibly taken and kept in unlawful custody, the complicity of the appellant could not be proved. The prosecution has failed to prove the case against the appellant.9. Therefore, the finding of the Special Judge is erroneous. Criminal Appeal No. 526/2001 is allowed and the appellant herein is acquitted of all the charges framed against him. The appellant, who is on bail, is discharged from the liability of bail bonds. | 1[ds]8. The prosecution could not adduce any other supporting evidence to prove the guilt of the appellant. Even based on the confession of thethe only allegation against the appellant is that he was in the company of the otherand had pointed out towards the victim by making a sign whereupon the other accusedthe victim and took him forcibly in the Maruti van. To prove that the appellant was in the company of other accused, there is no other independent evidence. Even though the prosecution adduced other evidence to prove that the victim Babulal Misrimal Jain was forcibly taken and kept in unlawful custody, the complicity of the appellant could not be proved. The prosecution has failed to prove the case against the appellant.9. Therefore, the finding of the Special Judge is erroneous. Criminal Appeal No. 526/2001 is allowed and the appellant herein is acquitted of all the charges framed against him. The appellant, who is on bail, is discharged from the liability of bail bonds. | 1 | 1,662 | 184 | ### Instruction:
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registered the crime and informed the superior Police Officers about the incident. PW 18 visited the scene of occurrence and recovered two empty cartridges from the place and also the chappals and slippers. Police inspector Jivabhai Ratnabai Prajapati (PW 19) took over further investigation. He visited the scene of occurrence and recorded the statements of some of the witnesses who were available. Later, the investigation was handed over to another officer and on 9-4-1994 accused No. 3 was arrested. Thereafter Police Inspector Udaykumar Tribhavan took over the investigation and arrested accused Nos. 6 and 7 on 27-7-1994. A-4, A-1 and A-2 were also arrested later. On 8-9-1994, the investigation was handed over to ACP, Shri B.R. Patil. He requested for Government sanction for invoking the provisions of TADA Act against the accused. A-8 was arrested on 12-3-1996. Accused Sattar Battery expressed his willingness to give a confession and accordingly the Assistant Commissioner of Police B.R. Patil recorded his confession under Section 15 of the TADA Act.4. PW 25, B.R. Patil, Assistant Commissioner of Police in Crime Branch at Ahemdabad arrested Babakhan s/o Ismailkhan on 11-1-1995. On 14-1-1995, accused Babakhan (A-11) expressed his desire to make a confession and he was produced before the Deputy Commissioner of Police, Shri A.K.Surolia. On the next date, that is, 15-1-1995, PW 25 was asked to produce A-11 Babakhan and his confession was recorded. Deputy Commissioner of Police, Shri A.K. Surolia gave the confession of A-11 Babakhan in a sealed cover to PW 25 B.R. Patil and asked him to produce A-11 Babakhan, along with the sealed cover containing his confession, before the Chief Metropolitan Magistrate.5. A-11 Babakhan gave a detailed statement regarding the commission of the crime and the relevant part of the confession is as follows:- "About quarter and one year, in the ninth month of 1993, during last week, Atik told me that Shejada sits in the office situated opp. Mirzapur Court where Prakash Bhutto is sitting. He told us that on 26th Noon, in Rani-Sati Hall, near Shahibaug, Underbridge, there is Community lunch of Baniya, wherein leading persons are to come and for their abduction, there would be no difficulty and crores of rupees would be obtained. After such talk, Sherjada called me, Atik, Vahab, Iqbal Bhuriyo, Salim Ando and Yasin Chipa of Jamalpur at his home he gave Point 45 Revolver to Atik and Point 38 Revolver to Ibu. The number plate of Maruti-van of Sherjada being No. GJ-9-1045 was affixed and taking it, we went to Rani Sati Hall. Salim Ando was driving the vehicle. We stood at one place. Outside the Hall, Prakash Bhutto pointed out one fat industrialist seated on the scooter by making the sign, whom we identified exactly. Salim Ando took the Maruti-van towards him and brought it near said fat man and stopped it. Lifting the said fat man and while throwing him in the vehicle, some scuffle took place. At that time, Ibu and Atik fired shots from their Revolvers and therefore, people scattered and hence, said fat man was thrown in the vehicle. Applying bandage on his eyes, via Underbridge he was brought to Amul Process House in Dani Limda. There also bandage continued on the eyes of said fat man. Sherjada and Vahab telephoned to the friends and relatives at their residence of the fat man, and demanded money. The name of the said fat man was Babulal Sanghvi. On the next day, Vahab told that transaction was over and let us release Babulal. I do not know, what amount was taken for the release of Babulal Sanghvi.. But subsequently Vahab told that Rs. 15/- lacs were obtained. Latifbhai has told not to make disposal. And Vahab applied the cotton and the bandage of medicine on the eyes of Babulal and putting Balck-gogles on it, Vahab told Atik, Ibu and Sherjada to take Babulal at Kankaria and get him seated in rickshaw, allowing him to go to Shahibaug. Accordingly, on the motor cycle of Sherjada, Atik and Ibu seated Babulal Sanghvi and dropped him at Kankaria. Subsequently Vahab gave me Rs. 50,000/- for this work." 6. Based on the above confession made by A-11 Babakhan, the appellant in Criminal Appeal No. 526/2001 was convicted for the offences punishable under Sections 120 B, 342 and 365 IPC. 7. The confession of a co-accused by itself is not sufficient to hold the other accused guilty. It has been held repeatedly by this Court that the confession of a co-accused is a fragile and feeble type of evidence and it could only be used to support the other evidence, if any, adduced by the prosecution. [See: Haricharan Kurmi Vs. State of Bihar, [1964 (6) SCR 623 ]. Though in State through Superintendent of Police, CBI/SIT Vs. Nalini and Others, (1999) 5 SCC 253 , it has been held that confession is a substantive piece of evidence, but as a Rule of Prudence the court should seek other corroborative evidence to test its veracity. 8. The prosecution could not adduce any other supporting evidence to prove the guilt of the appellant. Even based on the confession of the co-accused, the only allegation against the appellant is that he was in the company of the other co-accused and had pointed out towards the victim by making a sign whereupon the other accused over-powered the victim and took him forcibly in the Maruti van. To prove that the appellant was in the company of other accused, there is no other independent evidence. Even though the prosecution adduced other evidence to prove that the victim Babulal Misrimal Jain was forcibly taken and kept in unlawful custody, the complicity of the appellant could not be proved. The prosecution has failed to prove the case against the appellant.9. Therefore, the finding of the Special Judge is erroneous. Criminal Appeal No. 526/2001 is allowed and the appellant herein is acquitted of all the charges framed against him. The appellant, who is on bail, is discharged from the liability of bail bonds.
### Response:
1
### Explanation:
8. The prosecution could not adduce any other supporting evidence to prove the guilt of the appellant. Even based on the confession of thethe only allegation against the appellant is that he was in the company of the otherand had pointed out towards the victim by making a sign whereupon the other accusedthe victim and took him forcibly in the Maruti van. To prove that the appellant was in the company of other accused, there is no other independent evidence. Even though the prosecution adduced other evidence to prove that the victim Babulal Misrimal Jain was forcibly taken and kept in unlawful custody, the complicity of the appellant could not be proved. The prosecution has failed to prove the case against the appellant.9. Therefore, the finding of the Special Judge is erroneous. Criminal Appeal No. 526/2001 is allowed and the appellant herein is acquitted of all the charges framed against him. The appellant, who is on bail, is discharged from the liability of bail bonds.
|
D.C.M. Ltd Vs. Municipal Corporation Of Delhi & Anr | had deducted from the total units available for distribution, units which are lost in transit. This is not something which is irrelevant to the formula. It is an essential element which has to be taken into account in order to decide one basic item of the formula, namely, the units which were sold. The Arbitrator, therefore, was not right in distorting this formula by removing the factor of transmission and distribution losses from calculation of the units sold. The Arbitrators jurisdiction was confined to examining whether the calculations were in accordance with the formula. Therefore, in effect, the Arbitrator has acted beyond the scope of his reference in eliminating an important factor in calculation of the formula. This can also be looked upon as an error of law apparent on the face of the record. The figure of units sold cannot take into account units which were, in fact, not sold but were lost during transmission and distribution. By ignoring the manner in which this formula had been applied for more than 10 years uniformly in the case of all large industrial Corporations, the Arbitrator has committed an error of law apparent on the face of record. Because he has thereby distorted the formula and thus acted beyond the scope of his reference which was confined to examining a proper quantification of the increase in fuel adjustment charges in accordance with the formula. 13. The appellants have urged before us that the views of the Arbitrator are binding upon the parties; and if a question of law is referred to the Arbitrator his decision will be binding on the parties. They have relied upon the well-known decision in the case of Tarapore and Company v. Cochin Shipyard Ltd., Cochin and Anr.,(1984) 2 SCC 680 , and a series of other cases in support of the submission that if a question of law is specifically referred by the parties to the Arbitrator for decision, the award of the Arbitrator would be binding on the parties and the Court will have no jurisdiction to interfere with the award even on the ground of error of law apparent on the record. We are not citing these decisions because in the present case, as was rightly held by learned Single Judge of the High Court, there is no specific question of law which has been referred to arbitration. The limited reference to arbitration was whether the fuel adjustment charges were being demanded in accordance with the Tariff and the formula laid down, for the year iI1 question. 14. It was further submitted by the appellants that the Arbitrator was required to examine whether the fuel adjustment charges were in accordance with the formula laid down in the Tariff and, therefore, it was open to the Arbitrator to examine all the ingredients of this formula. If such an examination results in the Arbitrator eliminating some important ingredients of the formula and this results in a total distortion of the formula which is agreed to be applied by both the parties, the Arbitrator exceeds the scope of the reference when he does so. This is a jurisdictional error which can be examined by the Courts in deciding whether to uphold the award or not. 15. One of the decisions which was quoted by the appellants in this connection in support of their argument was in the case Hind Buildersv. Union of India,(1990) 3 SCC 338 , where, in the case of a non-speaking award, the Arbitrators without overlooking any term of the contract acted upon an interpretation of certain clauses in the contract on which two views were possible, this Court said that this was not a case of any error apparent on the face of the award. The facts of the present case are very different. In the first place, there is a speaking award. The Arbitrator was required to examine the application of the formula on which there was no dispute, to calculate the increase in fuel adjustment charges. In doing so, the Arbitrator examined the various ingredients which went to determine, (1) the cost of the units generated; (2) the cost of the units purchased from other power plants; and (3) the number of units sold. The formula in effect was very simple. The total cost of units available for being set in transmission for supply to the consumers was to be divided by the number of units sold. This would give the cost per unit of each unit sold. There was no dispute with this formula. What the Arbitrator in effect did was to say that the units sold are no different from the total number of units available to the second respondent for being put in transmission in order that they may be distributed to the consumers. He, therefore, held that the cost of all units which were made available for transmission and distribution should be determined by dividing the total cost by the number of units which were so made available. He in effect, replaced the third factor in the formula ?Units sold? by ?Units manufactured plus units bought from other power stations?. This has clearly changed the statutory formula. The Arbitrator was not authorised to examine the validity of the formula or to change it. He has, therefore, committed a jurisdictional error in so ?interpreting? the formula. This is a jurisdictional error which is also apparent on the face of the award.16. We need not examine the number of cases which were cited before us setting out the grounds on which an award can be set aside partly or wholly. It is well established that an Arbitrator cannot go beyond the scope of his reference. If he has exceeded his jurisdiction, the award to that extent can be set aside provided that the part of the award being quashed is severable from the rest. In the present case, therefore, the High Court was right in setting aside the award to the extent that it excluded transmission and distribution losses. | 0[ds]This has clearly changed the statutory formula. The Arbitrator was not authorised to examine the validity of the formula or to change it. He has, therefore, committed a jurisdictional error in so ?interpreting? the formula. This is a jurisdictional error which is also apparent on the face of the award.16. We need not examine the number of cases which were cited before us setting out the grounds on which an award can be set aside partly or wholly. It is well established that an Arbitrator cannot go beyond the scope of his reference. If he has exceeded his jurisdiction, the award to that extent can be set aside provided that the part of the award being quashed is severable from the rest. In the present case, therefore, the High Court was right in setting aside the award to the extent that it excluded transmission and distribution losses.11. This is how the formula has been worked throughout. In fact the figure of basic average fuel and purchase cost of 15.25 paise per KWH mentioned in Clause 1(i) of theTariff was also arrived at in the same fashion. The further increases in fuel adjustment charges are also on the same basis. Learned Single Judge, therefore, rightly observed that the elements which went into the calculation to arrive at the figure of 15.25 paise would be quite relevant for arriving at the increase. These elements cannot be theof challenge before the Arbitrator. The Arbitrator has also erred in considering transmission and distribution losses as a separate item of charge under the adjustment formula. We agree with the reasoning and conclusion arrived at by the learned Single Judge in this regard which has been upheld by the Divisionfacts of the present case are very different. In the first place, there is a speaking award. The Arbitrator was required to examine the application of the formula on which there was no dispute, to calculate the increase in fuel adjustment charges. In doing so, the Arbitrator examined the various ingredients which went to determine, (1) the cost of the units generated; (2) the cost of the units purchased from other power plants; and (3) the number of units sold. The formula in effect was very simple. The total cost of units available for being set in transmission for supply to the consumers was to be divided by the number of units sold. This would give the cost per unit of each unit sold. There was no dispute with this formula. What the Arbitrator in effect did was to say that the units sold are no different from the total number of units available to the second respondent for being put in transmission in order that they may be distributed to the consumers. He, therefore, held that the cost of all units which were made available for transmission and distribution should be determined by dividing the total cost by the number of units which were so made available. He in effect, replaced the third factor in the formula ?Units sold? by ?Units manufactured plus units bought from other power stations?.This has clearly changed the statutory formula. The Arbitrator was not authorised to examine the validity of the formula or to change it. He has, therefore, committed a jurisdictional error in so ?interpreting? the formula. This is a jurisdictional error which is also apparent on the face of the award.16. We need not examine the number of cases which were cited before us setting out the grounds on which an award can be set aside partly or wholly. It is well established that an Arbitrator cannot go beyond the scope of his reference. If he has exceeded his jurisdiction, the award to that extent can be set aside provided that the part of the award being quashed is severable from the rest. In the present case, therefore, the High Court was right in setting aside the award to the extent that it excluded transmission and distribution losses. | 0 | 3,835 | 737 | ### 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:
had deducted from the total units available for distribution, units which are lost in transit. This is not something which is irrelevant to the formula. It is an essential element which has to be taken into account in order to decide one basic item of the formula, namely, the units which were sold. The Arbitrator, therefore, was not right in distorting this formula by removing the factor of transmission and distribution losses from calculation of the units sold. The Arbitrators jurisdiction was confined to examining whether the calculations were in accordance with the formula. Therefore, in effect, the Arbitrator has acted beyond the scope of his reference in eliminating an important factor in calculation of the formula. This can also be looked upon as an error of law apparent on the face of the record. The figure of units sold cannot take into account units which were, in fact, not sold but were lost during transmission and distribution. By ignoring the manner in which this formula had been applied for more than 10 years uniformly in the case of all large industrial Corporations, the Arbitrator has committed an error of law apparent on the face of record. Because he has thereby distorted the formula and thus acted beyond the scope of his reference which was confined to examining a proper quantification of the increase in fuel adjustment charges in accordance with the formula. 13. The appellants have urged before us that the views of the Arbitrator are binding upon the parties; and if a question of law is referred to the Arbitrator his decision will be binding on the parties. They have relied upon the well-known decision in the case of Tarapore and Company v. Cochin Shipyard Ltd., Cochin and Anr.,(1984) 2 SCC 680 , and a series of other cases in support of the submission that if a question of law is specifically referred by the parties to the Arbitrator for decision, the award of the Arbitrator would be binding on the parties and the Court will have no jurisdiction to interfere with the award even on the ground of error of law apparent on the record. We are not citing these decisions because in the present case, as was rightly held by learned Single Judge of the High Court, there is no specific question of law which has been referred to arbitration. The limited reference to arbitration was whether the fuel adjustment charges were being demanded in accordance with the Tariff and the formula laid down, for the year iI1 question. 14. It was further submitted by the appellants that the Arbitrator was required to examine whether the fuel adjustment charges were in accordance with the formula laid down in the Tariff and, therefore, it was open to the Arbitrator to examine all the ingredients of this formula. If such an examination results in the Arbitrator eliminating some important ingredients of the formula and this results in a total distortion of the formula which is agreed to be applied by both the parties, the Arbitrator exceeds the scope of the reference when he does so. This is a jurisdictional error which can be examined by the Courts in deciding whether to uphold the award or not. 15. One of the decisions which was quoted by the appellants in this connection in support of their argument was in the case Hind Buildersv. Union of India,(1990) 3 SCC 338 , where, in the case of a non-speaking award, the Arbitrators without overlooking any term of the contract acted upon an interpretation of certain clauses in the contract on which two views were possible, this Court said that this was not a case of any error apparent on the face of the award. The facts of the present case are very different. In the first place, there is a speaking award. The Arbitrator was required to examine the application of the formula on which there was no dispute, to calculate the increase in fuel adjustment charges. In doing so, the Arbitrator examined the various ingredients which went to determine, (1) the cost of the units generated; (2) the cost of the units purchased from other power plants; and (3) the number of units sold. The formula in effect was very simple. The total cost of units available for being set in transmission for supply to the consumers was to be divided by the number of units sold. This would give the cost per unit of each unit sold. There was no dispute with this formula. What the Arbitrator in effect did was to say that the units sold are no different from the total number of units available to the second respondent for being put in transmission in order that they may be distributed to the consumers. He, therefore, held that the cost of all units which were made available for transmission and distribution should be determined by dividing the total cost by the number of units which were so made available. He in effect, replaced the third factor in the formula ?Units sold? by ?Units manufactured plus units bought from other power stations?. This has clearly changed the statutory formula. The Arbitrator was not authorised to examine the validity of the formula or to change it. He has, therefore, committed a jurisdictional error in so ?interpreting? the formula. This is a jurisdictional error which is also apparent on the face of the award.16. We need not examine the number of cases which were cited before us setting out the grounds on which an award can be set aside partly or wholly. It is well established that an Arbitrator cannot go beyond the scope of his reference. If he has exceeded his jurisdiction, the award to that extent can be set aside provided that the part of the award being quashed is severable from the rest. In the present case, therefore, the High Court was right in setting aside the award to the extent that it excluded transmission and distribution losses.
### Response:
0
### Explanation:
This has clearly changed the statutory formula. The Arbitrator was not authorised to examine the validity of the formula or to change it. He has, therefore, committed a jurisdictional error in so ?interpreting? the formula. This is a jurisdictional error which is also apparent on the face of the award.16. We need not examine the number of cases which were cited before us setting out the grounds on which an award can be set aside partly or wholly. It is well established that an Arbitrator cannot go beyond the scope of his reference. If he has exceeded his jurisdiction, the award to that extent can be set aside provided that the part of the award being quashed is severable from the rest. In the present case, therefore, the High Court was right in setting aside the award to the extent that it excluded transmission and distribution losses.11. This is how the formula has been worked throughout. In fact the figure of basic average fuel and purchase cost of 15.25 paise per KWH mentioned in Clause 1(i) of theTariff was also arrived at in the same fashion. The further increases in fuel adjustment charges are also on the same basis. Learned Single Judge, therefore, rightly observed that the elements which went into the calculation to arrive at the figure of 15.25 paise would be quite relevant for arriving at the increase. These elements cannot be theof challenge before the Arbitrator. The Arbitrator has also erred in considering transmission and distribution losses as a separate item of charge under the adjustment formula. We agree with the reasoning and conclusion arrived at by the learned Single Judge in this regard which has been upheld by the Divisionfacts of the present case are very different. In the first place, there is a speaking award. The Arbitrator was required to examine the application of the formula on which there was no dispute, to calculate the increase in fuel adjustment charges. In doing so, the Arbitrator examined the various ingredients which went to determine, (1) the cost of the units generated; (2) the cost of the units purchased from other power plants; and (3) the number of units sold. The formula in effect was very simple. The total cost of units available for being set in transmission for supply to the consumers was to be divided by the number of units sold. This would give the cost per unit of each unit sold. There was no dispute with this formula. What the Arbitrator in effect did was to say that the units sold are no different from the total number of units available to the second respondent for being put in transmission in order that they may be distributed to the consumers. He, therefore, held that the cost of all units which were made available for transmission and distribution should be determined by dividing the total cost by the number of units which were so made available. He in effect, replaced the third factor in the formula ?Units sold? by ?Units manufactured plus units bought from other power stations?.This has clearly changed the statutory formula. The Arbitrator was not authorised to examine the validity of the formula or to change it. He has, therefore, committed a jurisdictional error in so ?interpreting? the formula. This is a jurisdictional error which is also apparent on the face of the award.16. We need not examine the number of cases which were cited before us setting out the grounds on which an award can be set aside partly or wholly. It is well established that an Arbitrator cannot go beyond the scope of his reference. If he has exceeded his jurisdiction, the award to that extent can be set aside provided that the part of the award being quashed is severable from the rest. In the present case, therefore, the High Court was right in setting aside the award to the extent that it excluded transmission and distribution losses.
|
Mackinnon Mackenzie and Company Private, Limited Vs. Rita Fernandez Smt | provided for the purpose of securing the safety of workmen, 3. It is well-established that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would be liable.4. Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords in Clover Clayton & Co. v. Hughes [1910 A.C. 242] where the deceased, whilst tightening a nut with a spanner, fell back on his hand and died. A post mortem examination showed that there was a large aneurysm of the aorta and that death was caused by a rupture of the aorta. The aneurysm was in such an advanced condition that it might have burst while the man was asleep, and very slight exertion or strain would have been sufficient to bring about a rupture. The County Court Judge found that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal, and held upon the authorities that this was an accident within the meaning of the Act. His decision was upheld both by the Court of Appeal and the House of Lords :"No doubt the ordinary accident, "said Lord Loreburn, L.C."is associated with something external; the bursting of a boiler or an explosion in a mine, for example. But it may be merely from the mans own miscalculation, such as tripping and falling. Or it may be due to both internal and external conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such as the straining of muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight, it would properly be described as an accident. So, I think, rupturing an aneurysm when tightening a nut with a spanner may be regarded as an accident."5. With regard to Lord Macnaghtens definition of an accident being "an unlooked-for mishap or untoward event which is not expected or designed" it was said that an event was unexpected if it was not expected by the man who suffered it, even though every man of commonsense who knew the circumstances would think it certain to happen.6. It was, however, contended on behalf of the appellant that there was no evidence whatever to establish in this case that the employment of the deceased contributed to his death. In other word, the argument was that there was no evidence to establish that the death of the workman was caused not only by the disease but by the decease as well as the employment. The difficulty in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during that period. Under S.230 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in the log-book, the medical treatment given to an ailing workman. In the present case the log-book is produced. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In the log-book, however, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in the log-book. There is no entry to that effect in the log-book nor does the log-book indicated what treatment he was given during the said period. It was said that the appellant produced a special medical report of the surgeon of the ship before the Commissioner but it was objected on behalf of the respondent presumably on the ground of want of necessary proof. There was, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10 December. The High Court has taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant. The High Court observed that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of his employment. | 0[ds]It is well-established that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would beif a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords inClover Clayton & Co. v. Hughes [1910 A.C.difficulty in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during thatS.230 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in the log-book, the medical treatment given to an ailing workman. In the present case the log-book isthe present case the log-book isproduced. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In the log-book, however, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in the log-book. There is no entry to that effect in the log-book nor does the log-book indicated what treatment he was given during the saidwas, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10High Court has taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant. The High Court observed that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of hised that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would bey in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during that30 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in thethe medical treatment given to an ailing workman. Inthe present case thed. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In thehowever, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in theThere is no entry to that effect in thenor does theindicated what treatment he was given during the saidt was said thatthe appellant produced a special medical report of the surgeon of the ship before the Commissionerit was objected on behalf of the respondent presumably on the ground of want of necessarys, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10The High Courthas taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant.The High Courtobserved that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of hisemployment. In our opinion, the High Court was right in holding that in the circumstances of this case a duty was imposed on the appellant to lead evidence which was within its special knowledge and in the absence of such evidence an adverse inference should be drawn against the appellant. | 0 | 1,858 | 1,160 | ### 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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provided for the purpose of securing the safety of workmen, 3. It is well-established that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would be liable.4. Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords in Clover Clayton & Co. v. Hughes [1910 A.C. 242] where the deceased, whilst tightening a nut with a spanner, fell back on his hand and died. A post mortem examination showed that there was a large aneurysm of the aorta and that death was caused by a rupture of the aorta. The aneurysm was in such an advanced condition that it might have burst while the man was asleep, and very slight exertion or strain would have been sufficient to bring about a rupture. The County Court Judge found that the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal, and held upon the authorities that this was an accident within the meaning of the Act. His decision was upheld both by the Court of Appeal and the House of Lords :"No doubt the ordinary accident, "said Lord Loreburn, L.C."is associated with something external; the bursting of a boiler or an explosion in a mine, for example. But it may be merely from the mans own miscalculation, such as tripping and falling. Or it may be due to both internal and external conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such as the straining of muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight, it would properly be described as an accident. So, I think, rupturing an aneurysm when tightening a nut with a spanner may be regarded as an accident."5. With regard to Lord Macnaghtens definition of an accident being "an unlooked-for mishap or untoward event which is not expected or designed" it was said that an event was unexpected if it was not expected by the man who suffered it, even though every man of commonsense who knew the circumstances would think it certain to happen.6. It was, however, contended on behalf of the appellant that there was no evidence whatever to establish in this case that the employment of the deceased contributed to his death. In other word, the argument was that there was no evidence to establish that the death of the workman was caused not only by the disease but by the decease as well as the employment. The difficulty in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during that period. Under S.230 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in the log-book, the medical treatment given to an ailing workman. In the present case the log-book is produced. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In the log-book, however, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in the log-book. There is no entry to that effect in the log-book nor does the log-book indicated what treatment he was given during the said period. It was said that the appellant produced a special medical report of the surgeon of the ship before the Commissioner but it was objected on behalf of the respondent presumably on the ground of want of necessary proof. There was, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10 December. The High Court has taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant. The High Court observed that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of his employment.
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the employment, then it could be said that the death arose out of the employment and the employer would beif a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident. This was clearly laid down by the House of Lords inClover Clayton & Co. v. Hughes [1910 A.C.difficulty in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during thatS.230 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in the log-book, the medical treatment given to an ailing workman. In the present case the log-book isthe present case the log-book isproduced. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In the log-book, however, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in the log-book. There is no entry to that effect in the log-book nor does the log-book indicated what treatment he was given during the saidwas, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10High Court has taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant. The High Court observed that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of hised that under this section there must be some causal connexion between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would bey in the present case is that the appellant has not produced the necessary material to show that the workman was an indoor patient in the hospital from 2 December to his death on 10 December and what his condition was during that30 of the British Merchant Shipping Act, 1894, it is obligatory on the master of the ship to make such entries in thethe medical treatment given to an ailing workman. Inthe present case thed. The entries in that book indicate that on 2 December 1961, the deceased was admitted to the hospital, as he was suffering from hopatomagaly and basal pulmonary congestion. This entry was made on 3 December 1961.The case of the appellant is that the workman was in the hospital as an indoor patient from 2 to 10 December. In thehowever, the only entry made after the one mentioned is regarding his death, which occurred on 10 December 1961. As to what happened between 2 and 10 December is not indicated by any entry in theThere is no entry to that effect in thenor does theindicated what treatment he was given during the saidt was said thatthe appellant produced a special medical report of the surgeon of the ship before the Commissionerit was objected on behalf of the respondent presumably on the ground of want of necessarys, however, no attempt on the part of the appellant to prove that report in a legal manner. The result, therefore, is that there is no evidence to establish that the workman was lying in the ships hospital as an indoor patient from 2 to 10The High Courthas taken the view that the appellant had special knowledge as to whether the workman was an indoor patient lying in the ships hospital during the abovementioned period or whether he was asked to carry out his duties and since the appellant produced no evidence an adverse inference should be drawn against the appellant.The High Courtobserved that was no evidence to establish that after 2 December, 1961, the workman was not asked to work but was in the hospital right up to the date of his death. In the absence of necessary evidence which the appellant could and should have led in the case the High Court drew the inference that the death of the workman arose out of and in the course of hisemployment. In our opinion, the High Court was right in holding that in the circumstances of this case a duty was imposed on the appellant to lead evidence which was within its special knowledge and in the absence of such evidence an adverse inference should be drawn against the appellant.
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ADANI GAS LIMITED Vs. PETROLEUM AND NATURAL GAS REGULATORY BOARD & ORS | the justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census data. Lastly, the Member Technical (Petroleum and Natural Gas) observed: 51. … Moreover, the calculations have been done by an expert body (the Board) which has been constituted as per Statutory Act. In addition, the estimates on future PNG domestic connections made by the 3 bidders based on various parameters are only estimates. These are not meant to be arrived at by any specified formula or direct mathematical precision. The power to weed out unreasonably high or low quote is only an enabling power and not a yardstick or parameter for evaluation. (Emphasis supplied) The power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households. 54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the Chairperson. Therefore, for the sake of completeness it is necessary to briefly advert to the opinion of the Chairperson allowing the appeals. The Chairperson observed as follows: 136. … On 23.07.2018 certain criteria/parameters were indicated by this so called Evaluation Committee in the Agenda Note. … This indicates that the exercise so far as criteria/ parameters was uniform for all the bids. …. The report on Agenda Note dated 09.08.2018, in fact, recommended that the highest bidders of GA 51, 61, and 62 were disqualified since their quote of PNG connections were beyond 100% of the total households of 2011 census. … However, the Minutes of the Board dated 10.08.2018 indicate that the four members of the Board out of which three had approved Agenda Note, changed their opinion so far as disqualification of highest bidder of these three GAs 51, 61 and 62. Its also noticed from the affidavit of the Board filed 09.11.2018 that the Board has correctly applied the unreasonable low criteria to all the bidders whose bid was below 2%, but surprisingly the bids which were beyond the limit of 100% of 2011 census, the Board thought it fit to relax the criteria by calling the high bidders for negotiation. If the Board thought it fit to hear the affected parties, then it ought to have invited all the affected parties of the said GA i.e., all the bidders who stand to lose the bid, since such procedure was exercised so far as unreasonably low criteria to all bidders who quoted below 2% of 2011 census. Assessment of reasonability of a bid cannot be equated with the concept of rejection of a bid as not qualified for a particular criteria. Reasonability of a bid has reference to subjective assessment/satisfaction. The assessment of a bid based on the available material would amount to objective assessment. (Emphasis supplied) It is evident from the above extract that the Chairpersons findings are based on three key assumptions: (i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature; (ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and (iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders. 55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary. | 0[ds]43. Our analysis of the CGD Authorisation Regulations, as amended on 6 April 2018, as explained earlier, reveals that the Regulations did not contain any stipulation determining a range of 2 to 100 per cent of the number of households under the 2011 Census as the criterion to evaluate bids. The Regulations in fact do not link the highness factor of domestic PNG connections to the 2011 Census data. In Clause 4.4.1 of the Bid Document, the Board reserved to itself the right to reject any unreasonably high or low bid. In Addendum-1 to the Bid Document, the Board clarified to all prospective bidders that the evaluation of whether a bid was unreasonably low or high would be conducted on a case to case basis at the time of bid evaluationThe terminology adopted by the Board Note indicates that the 2-100 per cent range was not laid down as an absolute or inflexible basis for disqualifying bids below the minimum or in excess of the maximum. On the contrary, the use of the expression may be is one indicator that a bid which was below 2 per cent or in excess of 100 per cent may trigger the exercise of the power which the Board had reserved to itself in clause 4.4.1 of the Bid Document. On its plain terms, the Board Note cannot be construed to have laid down an absolute norm by which bids quoting below the minimum of 2 per cent or above the ceiling of 100 per cent of the number of households under the 2011 Census data would automatically be rejected as unreasonable45. If the Board Note of 23 July 2018 were to be construed in the manner in which the learned Senior Counsel for the appellants urged, the automatic disqualification of bidders based on a criterion introduced by the Board Note would raise serious doubts about its fairness and legality. This is because the Board Note was not notified to bidders as a basis for the evaluation of bids before the date for the submission of the bids had closed. To disqualify a bidder on the basis of a criterion which was not notified and of which bidders had no knowledge would be arbitrary and would constitute an infraction of Article 14. The Board was thus correct in determining that the automatic disqualification of a bid on the basis of a criterion specified in the Board Note (which was never notified to the bidders) would not be legally correct. Hence, it would be reasonable to interpret the Board Note dated 23 July 2018 as being the formulation of a guideline for the Board. As a guideline in the process of evaluation, the decision taken by the Board on 23 July 2018 was not to the effect that every bid below 2 per cent or above 100 per cent would necessarily stand disqualified. Consistently with the use of the word may be, as already noticed, the decision of the Board meant that the power which the Board reserved to itself in Clause 4.4.1 could be invoked if it came to the conclusion that the bid had not been justified to be reasonable. In other words, the breaching of the range of 2-100 per cent was a trigger for the Board to scrutinise the bid and determine whether the power under Clause 4.4.1 should be invoked. Hence, the course of action which the Board followed of calling upon the bidders with the highest composite scores in GAs 51, 61 and 62 to justify their bids in terms of their reasonableness cannot be faulted. On the contrary, if the Board had rejected these bids solely on the ground that they were above the limit of 100 per cent of households under the 2011 Census data, the decision would have been seriously flawed for having applied a criterion which was not a part of the Regulations, was not embodied in the Bid Document and in any event, was not notified to bidders before they had submitted their bidsThis, in our view, is an incorrect reading of the agenda note. What this submission misses is the last paragraph of the Board agenda noteThe agenda note dated 9 August 2018 was a recommendation which was prepared on the basis of the 2–100 per cent criterion contained in the Board Note dated 23 July 2018. Obviously in the light of that decision, a recommendation was made which was still to be deliberated upon by the Board as a body. When the Board met on 10 August 2018, it correctly came to the conclusion that the lower and upper thresholds were not to be applied mechanically to disqualify bidders. This decision, as we have indicated earlier, was justified not only by the terms of the Board Note dated 23 July 2018 but was intrinsic to a fair exercise of power by the Board. The Board decided that it would call the bidders with the highest composite score to explain the reasonableness of their bids. This was a fair opportunity which was granted to the bidders who had the highest composite score to justify the basis of their computation of projected households over the eight-contract years47. There is no merit in the submission that there was a breach of the principles of natural justice in calling only the bidders with the highest composite score to explain the reasonableness of their bids. None of these bidders was being called upon to revise or improve their bids. In terms of the CGD Authorisation Regulations, the bidder with the highest composite score has to be declared as the successful bidder. If despite having the highest composite score, a bidder was being considered for rejection by the Board, it was that bidder who was justifiably called to explain the reasonableness of the bid. The other bidders had no locus to participate in the process. It is a settled principle of law that the rules of natural justice are attracted where a decision affects a right of a party against whom the decision has to be made. After the composite score of all bidders is calculated, the second highest bidder has no rights vis-à-vis the highest bidder or the Board unless the method of calculating the highest composite score itself is impugned. Calling upon the bidders with the highest composite score to explain the reasonableness of their bid did not alter the composite score of the H1 bidders or any other bidder for the same GA. The question of hearing any other bidder would have arisen only if the H1 bidder stood disqualified, and the bidder with the next highest composite score also breached the 2-100 per cent range, thereby warranting scrutiny from the Board. In the present situation, when the Board decided to call the bidders with the highest composite score in order to allow them an opportunity to explain reasonableness of their bid, the administrative decision taken by the Board cannot be faulted as being in violation of the principles of natural justice49. In its minutes dated 29 August 2018, the Board noted that the four GAs: 51, 61, 62 and 72 were compared with the upper limit fixed by the agenda note dated 23 July 2018 and projected households in 2026. The penetration of PNG domestic connections based on the upper limit fixed by the Board with reference to the projected number of households in 2026 varied from 45 per cent to 59 per cent. However, the penetration of PNG domestic connections based on quoted PNG connections with reference to the projected number of households in 2026 varied from 55 per cent to 99 per cent. The variation between the two sets of numbers was between 7 per cent to 54 per cent. The Board noted that it was in GA 72 where the highest variation of 54 per cent took place. The bid submitted by Torrent Gas Private Limited for GA 72 was consequently rejected. The Board observed that the computation for GA 72 by Torrent Gas Private Limited was based on untenable assumptions as described in para 14.3 of the agenda note. According to these assumptions, the PNG domestic connections quoted by the Torrent Gas Private Limited was 99 per cent of the projected households by 2026 which was taken as an unreasonably high penetration figure. However, for the remaining three GAs, the variation was between 7 per cent to 23 per cent of the projected households in 2026, and PNG penetration would be in the range of 55 per cent to 79 per cent. This exercise was carried out by the Board to enable it to consider the reasonableness of the bids. Torrent Gas Limited, whose bid was accepted for GA 62, was however not considered for acceptance for GA 72 since its computation of the number of projected households and penetration rate was deemed unreasonable. In our view, the Board has certainly given a possible basis for coming to the conclusion that the bids submitted by the bidders with the highest composite score for GAs 51, 61 and 62 were reasonable and ought not to be rejected50. The agenda note dated 9 August 2018 merely tabled discussion on the disputed GAs. The highest bidders for GAs 61 and 62 were heard by the Board on 14 August 2018. The highest bidder for GA 51 was heard by the Board on 23 August 2018. The final decision to award authorisation in GAs 51, 61 and 62 to AG & P LNG, Torrent Gas Private Limited and SKN Haryana (the highest bidders) respectively was finally taken by the Board in its meeting on 29 August 2018. This decision was taken after hearing the bidders on whether their bids were reasonable or not. The Board did not reject all other bidders or presumptively announce these entities as successful bidders before making a determination as to the reasonableness of their bids. In light of this chronology of events, at no point did the Board reverse its decision with respect to the GAs in questionThis clarification by the Board as well as the findings which have been recorded by the Member Technical (Petroleum and Natural Gas) commends itself for acceptance53. In his judgement, the Member Technical noted that the appellant had in fact calculated the CAGR using overall population growth instead of using household growth. Evidently, for the purpose of projecting the number of PNG connections within a GA, it is the number of households and not the overall population that is relevant as each household is unlikely to have more than one PNG connection. Moreover, as neither the CGD Regulations nor the Bid Document required the number of projected households to be calculated on the basis of 2011 Census data, the decision of the Board to accept the justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census dataThe power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the ChairpersonIt is evident from the above extract that the Chairpersons findings are based on three key assumptions:(i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature;(ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and(iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary. | 0 | 15,800 | 2,555 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census data. Lastly, the Member Technical (Petroleum and Natural Gas) observed: 51. … Moreover, the calculations have been done by an expert body (the Board) which has been constituted as per Statutory Act. In addition, the estimates on future PNG domestic connections made by the 3 bidders based on various parameters are only estimates. These are not meant to be arrived at by any specified formula or direct mathematical precision. The power to weed out unreasonably high or low quote is only an enabling power and not a yardstick or parameter for evaluation. (Emphasis supplied) The power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households. 54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the Chairperson. Therefore, for the sake of completeness it is necessary to briefly advert to the opinion of the Chairperson allowing the appeals. The Chairperson observed as follows: 136. … On 23.07.2018 certain criteria/parameters were indicated by this so called Evaluation Committee in the Agenda Note. … This indicates that the exercise so far as criteria/ parameters was uniform for all the bids. …. The report on Agenda Note dated 09.08.2018, in fact, recommended that the highest bidders of GA 51, 61, and 62 were disqualified since their quote of PNG connections were beyond 100% of the total households of 2011 census. … However, the Minutes of the Board dated 10.08.2018 indicate that the four members of the Board out of which three had approved Agenda Note, changed their opinion so far as disqualification of highest bidder of these three GAs 51, 61 and 62. Its also noticed from the affidavit of the Board filed 09.11.2018 that the Board has correctly applied the unreasonable low criteria to all the bidders whose bid was below 2%, but surprisingly the bids which were beyond the limit of 100% of 2011 census, the Board thought it fit to relax the criteria by calling the high bidders for negotiation. If the Board thought it fit to hear the affected parties, then it ought to have invited all the affected parties of the said GA i.e., all the bidders who stand to lose the bid, since such procedure was exercised so far as unreasonably low criteria to all bidders who quoted below 2% of 2011 census. Assessment of reasonability of a bid cannot be equated with the concept of rejection of a bid as not qualified for a particular criteria. Reasonability of a bid has reference to subjective assessment/satisfaction. The assessment of a bid based on the available material would amount to objective assessment. (Emphasis supplied) It is evident from the above extract that the Chairpersons findings are based on three key assumptions: (i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature; (ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and (iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders. 55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary.
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### Explanation:
However, for the remaining three GAs, the variation was between 7 per cent to 23 per cent of the projected households in 2026, and PNG penetration would be in the range of 55 per cent to 79 per cent. This exercise was carried out by the Board to enable it to consider the reasonableness of the bids. Torrent Gas Limited, whose bid was accepted for GA 62, was however not considered for acceptance for GA 72 since its computation of the number of projected households and penetration rate was deemed unreasonable. In our view, the Board has certainly given a possible basis for coming to the conclusion that the bids submitted by the bidders with the highest composite score for GAs 51, 61 and 62 were reasonable and ought not to be rejected50. The agenda note dated 9 August 2018 merely tabled discussion on the disputed GAs. The highest bidders for GAs 61 and 62 were heard by the Board on 14 August 2018. The highest bidder for GA 51 was heard by the Board on 23 August 2018. The final decision to award authorisation in GAs 51, 61 and 62 to AG & P LNG, Torrent Gas Private Limited and SKN Haryana (the highest bidders) respectively was finally taken by the Board in its meeting on 29 August 2018. This decision was taken after hearing the bidders on whether their bids were reasonable or not. The Board did not reject all other bidders or presumptively announce these entities as successful bidders before making a determination as to the reasonableness of their bids. In light of this chronology of events, at no point did the Board reverse its decision with respect to the GAs in questionThis clarification by the Board as well as the findings which have been recorded by the Member Technical (Petroleum and Natural Gas) commends itself for acceptance53. In his judgement, the Member Technical noted that the appellant had in fact calculated the CAGR using overall population growth instead of using household growth. Evidently, for the purpose of projecting the number of PNG connections within a GA, it is the number of households and not the overall population that is relevant as each household is unlikely to have more than one PNG connection. Moreover, as neither the CGD Regulations nor the Bid Document required the number of projected households to be calculated on the basis of 2011 Census data, the decision of the Board to accept the justification provided by the bidders cannot be attacked on the ground that the figures provided did not strictly match the numbers extrapolated from the 2011 Census dataThe power granted to the Board under Clause 14.2 of the Bid Document is an enabling clause that allows the Board to apply its mind to a quote and determine its reasonableness. The quotes submitted by all bidders with respect to the projected number of households in 2026 are admittedly estimates. Similarly, the Boards own determination of a baseline for comparing the reasonableness of various quotes is also an estimate. Therefore, the Boards use of the baseline figure and its consequent acceptance of the reasonability of a quote cannot be faulted because it did not strictly adhere to one particular methodology of arriving at a number of projected households unless the methodology used is arbitrary, having no correlation with the result sought to be achieved. We therefore approve of the finding of the Member Technical with respect to the calculation of the number of households54. The present batch of appeals arises from two divergent opinions of the Chairperson and the Member Technical (Petroleum and Natural Gas) of the APTEL. Several arguments urged by the appellants before us find voice in the opinion of the ChairpersonIt is evident from the above extract that the Chairpersons findings are based on three key assumptions:(i) The Board Note dated 23 July 2018 was binding on the Board and the agenda note dated 9 August 2018 was evidence of the Board Notes binding nature;(ii) Because the Board disqualified certain other bidders by applying the 2 – 100 per cent range, it was bound to do so against the successful bidders in GAs 51, 61 and 52; and(iii) Because the assessment of reasonability was a subjective assessment, the Board was obligated to hear other bidders in the disputed GAs before declaring successful bidders55. As noted previously, on a bare construction of the Board Note dated 23 July 2018 and the fact that the Board Note was formulated after the last date for the submission of bids, the Board Note did not set out absolute criteria for disqualification of bids. The agenda note dated 9 August merely tabled a proposal to apply the criteria of 2-100 per cent range but the Board did not subsequently adopt this course of action, a decision within its power and indeed necessary to preserve the integrity of the bidding process. Having established that the Board Note was not an absolute binding criteria, and the Tribunal was approached only with respect to GAs 51, 61 and 62, the Boards treatment of other GAs cannot be decisive in determining the legality of the authorisations granted in GAs 51, 61 and 62, especially where the Boards actions in respect of these other GAs have not been independently challenged. Lastly, the Chairperson has construed the assessment of the reasonability of the highest bidders quote as a decision affecting the rights and liabilities of all other bidders for the GAs, thus requiring them to be heard. As noted previously, the assessment of the reasonability of the bid was a matter solely between the highest bidder and the Board. Such an assessment would not alter the scores of the highest bidder vis-à-vis the scores of the other bidders. The sole question was whether the highest bidders quote was reasonable, and the power to determine such reasonability resided solely with the Board by virtue of Clause 14.2 of the Bid Document. Thus, the presence and hearing of other bidders was not necessary.
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Hotel Ambassador Vs. Its Workmen and Others | Gajendragadkar, J.1. This appeal raises a very short question about the correctness and validity of the direction issued by the tribunal calling upon the appellant, the management of Hotel Ambassador, to reinstate its employee Ram Singh I with consequential reliefs. It appears that the appellant had retrenched four of its employees one of whom did not raise any dispute, but the other three did : they are Ram Singh I, painter, Ram Singh II, painter and Sadhu Ram, upholsterer. This dispute was referred for adjudication to the industrial tribunal, Delhi. The tribunal has held that the retrenchment of Ram Singh II and and Sadhu Ram was justified, but not that of Ram Singh I. That is why it has given the said employee the main relief of reinstatement and other consequential reliefs as to wages for the period during which he had been retrenched. It is against this order that the appellant has come to this Court by special leave.2. Mr. Ram Lal Anand contends that the order passed by the tribunal is manifestly erroneous. He has referred to the fact that the tribunal, in substance, has upheld the plea of the appellant that at the time when the retrenchment was effected in October 1960, the appellant had to face a somewhat depressing financial position, and so, it became necessary for the appellant to effect economy in its expenditure. It appears that the retrenchment workmen did the work of painting, whitewashing and polishing up-holstering work. The appellants case was that he had abolished this department and distributed the work amongst the other members of the staff. The tribunal, in fact, has found that in addition to their other work Budhram and Bhagat Singh are now doing the work which the retrenched workmen used to do before, and it has held that since Budhram was a senior employee, it could not be said that the appellant was in error in retaining him in preference to the three retrenched employees. It, however, held that Bhagat Singh might have been retrenched and not Ram Singh I. It is on this ground that the tribunal has directed the reinstatement of Ram Singh I. Mr. Ram Lal Anand points out that the tribunal was in error because like Budhram, Bhagat Singh was a senior employee and could not have been retrenched in preference to Ram Singh I. Evidence shows that both Budhram and Bhagat Singh were drawing Rs. 150 each per month at the relevant time, and so, what applies to Budhram applies equally to Bhagat Singh. In our opinion, this contention is well-founded and must be upheld.Mr. Janardhan Sharma for the respondents attempted to support the finding of the tribunal that the appellant had acted improperly in not applying the principle of S.25G of the Industrial Disputes Act, 1947 (Act 14 of 1947). Section 25G requires that the retrenchment should be effected category-wise; and that in effecting retrenchment, the principle of last come first go must be applied. The difficulty in accepting this argument, however, is that in the present case the appellant has altogether closed the special department for painting, whitewashing and polishing upholstering work, and it is not possible to find fault with the appellant, because one of the ways in which economy in expenditure could be effected obviously was to close this department and distribute the work of the said department among some of the pre-existing employees. That being so, it is not possible to hold that S. 25G has been contravened. Once it is conceded that there was an occasion for effecting economy, the conclusion is inescapable that the conduct of the appellant in closing the department and dividing its work amongst its other employees cannot be reasonably characterized as improper, or as amounting to an unfair labour practice. It is true that Ram Singh I appears to have been a vice-president of the union and no doubt, the respondents contended before the tribunal that the retrenchment of Ram Singh I was really an act of victimization. The tribunal has not made a finding in favour of the respondents on this ground. It has merely held that since Bhagat Singh was not retrenched but Ram Singh I was, that is improper and not bona fide. This conclusion, in our opinion, cannot be upheld. | 1[ds]Evidence shows that both Budhram and Bhagat Singh were drawing Rs. 150 each per month at the relevant time, and so, what applies to Budhram applies equally to Bhagat Singh. In our opinion, this contention isand must be upheld.Mr. Janardhan Sharma for the respondents attempted to support the finding of the tribunal that the appellant had acted improperly in not applying the principle of S.25G of the Industrial Disputes Act, 1947 (Act 14 of 1947). Section 25G requires that the retrenchment should be effectedand that in effecting retrenchment, the principle of last come first go must be applied. The difficulty in accepting this argument, however, is that in the present case the appellant has altogether closed the special department for painting, whitewashing and polishing upholstering work, and it is not possible to find fault with the appellant, because one of the ways in which economy in expenditure could be effected obviously was to close this department and distribute the work of the said department among some of theemployees. That being so, it is not possible to hold that S. 25G has been contravened. Once it is conceded that there was an occasion for effecting economy, the conclusion is inescapable that the conduct of the appellant in closing the department and dividing its work amongst its other employees cannot be reasonably characterized as improper, or as amounting to an unfair labour practice. It is true that Ram Singh I appears to have been aof the union and no doubt, the respondents contended before the tribunal that the retrenchment of Ram Singh I was really an act of victimization. The tribunal has not made a finding in favour of the respondents on this ground. It has merely held that since Bhagat Singh was not retrenched but Ram Singh I was, that is improper and not bona fide. This conclusion, in our opinion, cannot be upheld. | 1 | 784 | 350 | ### 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:
Gajendragadkar, J.1. This appeal raises a very short question about the correctness and validity of the direction issued by the tribunal calling upon the appellant, the management of Hotel Ambassador, to reinstate its employee Ram Singh I with consequential reliefs. It appears that the appellant had retrenched four of its employees one of whom did not raise any dispute, but the other three did : they are Ram Singh I, painter, Ram Singh II, painter and Sadhu Ram, upholsterer. This dispute was referred for adjudication to the industrial tribunal, Delhi. The tribunal has held that the retrenchment of Ram Singh II and and Sadhu Ram was justified, but not that of Ram Singh I. That is why it has given the said employee the main relief of reinstatement and other consequential reliefs as to wages for the period during which he had been retrenched. It is against this order that the appellant has come to this Court by special leave.2. Mr. Ram Lal Anand contends that the order passed by the tribunal is manifestly erroneous. He has referred to the fact that the tribunal, in substance, has upheld the plea of the appellant that at the time when the retrenchment was effected in October 1960, the appellant had to face a somewhat depressing financial position, and so, it became necessary for the appellant to effect economy in its expenditure. It appears that the retrenchment workmen did the work of painting, whitewashing and polishing up-holstering work. The appellants case was that he had abolished this department and distributed the work amongst the other members of the staff. The tribunal, in fact, has found that in addition to their other work Budhram and Bhagat Singh are now doing the work which the retrenched workmen used to do before, and it has held that since Budhram was a senior employee, it could not be said that the appellant was in error in retaining him in preference to the three retrenched employees. It, however, held that Bhagat Singh might have been retrenched and not Ram Singh I. It is on this ground that the tribunal has directed the reinstatement of Ram Singh I. Mr. Ram Lal Anand points out that the tribunal was in error because like Budhram, Bhagat Singh was a senior employee and could not have been retrenched in preference to Ram Singh I. Evidence shows that both Budhram and Bhagat Singh were drawing Rs. 150 each per month at the relevant time, and so, what applies to Budhram applies equally to Bhagat Singh. In our opinion, this contention is well-founded and must be upheld.Mr. Janardhan Sharma for the respondents attempted to support the finding of the tribunal that the appellant had acted improperly in not applying the principle of S.25G of the Industrial Disputes Act, 1947 (Act 14 of 1947). Section 25G requires that the retrenchment should be effected category-wise; and that in effecting retrenchment, the principle of last come first go must be applied. The difficulty in accepting this argument, however, is that in the present case the appellant has altogether closed the special department for painting, whitewashing and polishing upholstering work, and it is not possible to find fault with the appellant, because one of the ways in which economy in expenditure could be effected obviously was to close this department and distribute the work of the said department among some of the pre-existing employees. That being so, it is not possible to hold that S. 25G has been contravened. Once it is conceded that there was an occasion for effecting economy, the conclusion is inescapable that the conduct of the appellant in closing the department and dividing its work amongst its other employees cannot be reasonably characterized as improper, or as amounting to an unfair labour practice. It is true that Ram Singh I appears to have been a vice-president of the union and no doubt, the respondents contended before the tribunal that the retrenchment of Ram Singh I was really an act of victimization. The tribunal has not made a finding in favour of the respondents on this ground. It has merely held that since Bhagat Singh was not retrenched but Ram Singh I was, that is improper and not bona fide. This conclusion, in our opinion, cannot be upheld.
### Response:
1
### Explanation:
Evidence shows that both Budhram and Bhagat Singh were drawing Rs. 150 each per month at the relevant time, and so, what applies to Budhram applies equally to Bhagat Singh. In our opinion, this contention isand must be upheld.Mr. Janardhan Sharma for the respondents attempted to support the finding of the tribunal that the appellant had acted improperly in not applying the principle of S.25G of the Industrial Disputes Act, 1947 (Act 14 of 1947). Section 25G requires that the retrenchment should be effectedand that in effecting retrenchment, the principle of last come first go must be applied. The difficulty in accepting this argument, however, is that in the present case the appellant has altogether closed the special department for painting, whitewashing and polishing upholstering work, and it is not possible to find fault with the appellant, because one of the ways in which economy in expenditure could be effected obviously was to close this department and distribute the work of the said department among some of theemployees. That being so, it is not possible to hold that S. 25G has been contravened. Once it is conceded that there was an occasion for effecting economy, the conclusion is inescapable that the conduct of the appellant in closing the department and dividing its work amongst its other employees cannot be reasonably characterized as improper, or as amounting to an unfair labour practice. It is true that Ram Singh I appears to have been aof the union and no doubt, the respondents contended before the tribunal that the retrenchment of Ram Singh I was really an act of victimization. The tribunal has not made a finding in favour of the respondents on this ground. It has merely held that since Bhagat Singh was not retrenched but Ram Singh I was, that is improper and not bona fide. This conclusion, in our opinion, cannot be upheld.
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V. M. Rv. Mr. Ramaswami Chettiar And Anr Vs. R. Muthukrishna Iyer And Others | a breach of warranty of title under the Indemnity Bond-Ex. B. dated December 19, 1912.4. It was contended by Mr. Ganapathy Iyer on behalf of the appellants that in O. S. No. 640 of 1923, defendant No. 3 .obtained a partition decree and a declaration that defendant No. 2 was not entitled to alienate his share in the A Schedule properties. It was submitted that on account of this decree the appellants lost title to half-share of A Schedule properties and accordingly the appellants were entitled to get back half the amount of consideration under the Indemnity Bond-Ex. B. The argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half-share of the third defendant in Court auction, was not a relevant factor so far as the claim for damages was concerned. It was suggested that the purchase in Court auction was an independent transaction and the defendants could not take the benefit of that transaction. We are unable to accept the contention of the appellants as correct. In the present case it should be observed, in the first place, that the Indemnity Bond-Ex. B states that defendant No. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son-Chidambaram-is set aside and you are made to sustain any loss". In the second place, it is important to notice that the sale-deed-Ex. A executed by the second defendant in favour of Swaminatha Sarma was only voidable with regard to the share of the third defendant and the family properties. The sale of the half-share of defendant No. 3 was not void ab initio .but it was only voidable if defendant No. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity. In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. A breach of the covenant can only occur on the disturbance of the vendees possession and so long as the vendee remains in possession he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a covenant of the warranty of title. The view, that we have expressed is borne out by the decision of the Madras High Court in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887 : (AIR 1915 Mad 708), in which A who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof. C then brought a suit against A and B. got a decree and obtained possession thereof in execution. In this state of facts it was held by Seshagiri Ayyar, J. that Bs cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was Art. 97 of the Limitation Act. At p. 889 of the Report (of ILR Mad): (at p. 710 of AIR) Seshagiri Ayyar, J. states :"These cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the viodable sale; and (c) where though the title is known to be imperfect, the contract is in part carried out by giving possession of the properties. In the first class of cases the starting point of limitation will be the date of the sale. That is Mr. Justice Bakewells view in Ramanatha Iyer v. Ozhaloor Pathiriseri, (1913) 14 MLT 524: and I do not think Mr. Justice Miller dissents from it. However, the present case is quite different. In the second class of cases the cause of action can arise only when it is found that there is no good title. The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified. The cause of action will, therefore, arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat v. Hanuman Mandur [(1892) ILR 19 Cal 123 (PC)] and in Bassu Kuar v. Dhum Singh [(1889) ILR 11 All 47 (PC)] are authorities for this position."A similar view has been expressed by the Allahabad High Court in Muhammad Siddiq v. Muhammad Nuh, ILR 52 All 604: (AIR 1930 All 771), and the Bombay High Court in Gulabchand Daulatram v. Suryajirao Ganpatrao, AIR 1950 Bom 401 . In the present case it has been found by the High Court that P. W. 1, the auction-purchaser was the brother-in-law of the plaintiffs and that he was managing the estate of the plaintiffs and defending O. S. 640 of 1923 on their behalf .It has also been found that P. W. 1 did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property. The only loss sustained by the plaintiffs was a sun; of Rs. 736 paid at the Court sale and a sum of Rs. 500 spent for the defence of O. S. No. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land. Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1,236 which was the actual loss sustained by them and they are not entitled to any further amount. | 0[ds]In the present case it should be observed, in the first place, that the Indemnity Bond-Ex. B states that defendant No. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son-Chidambaram-is set aside and you are made to sustain any loss". In the second place, it is important to notice that the sale-deed-Ex. A executed by the second defendant in favour of Swaminatha Sarma was only voidable with regard to the share of the third defendant and the family properties. The sale of the half-share of defendant No. 3 was not void ab initio .but it was only voidable if defendant No. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity. In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. A breach of the covenant can only occur on the disturbance of the vendees possession and so long as the vendee remains in possession he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a covenant of the warranty of title. The view, that we have expressed is borne out by the decision of the Madras High Court in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887 : (AIR 1915 Mad 708), in which A who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof. C then brought a suit against A and B. got a decree and obtained possession thereof insimilar view has been expressed by the Allahabad High Court in Muhammad Siddiq v. Muhammad Nuh, ILR 52 All 604: (AIR 1930 All 771), and the Bombay High Court in Gulabchand Daulatram v. Suryajirao Ganpatrao, AIR 1950 Bom 401 . In the present case it has been found by the High Court that P. W. 1, the auction-purchaser was the brother-in-law of the plaintiffs and that he was managing the estate of the plaintiffs and defending O. S. 640 of 1923 on their behalf .It has also been found that P. W. 1 did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property. The only loss sustained by the plaintiffs was a sun; of Rs. 736 paid at the Court sale and a sum of Rs. 500 spent for the defence of O. S. No. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land. Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1,236 which was the actual loss sustained by them and they are not entitled to any further amount. | 0 | 1,842 | 540 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
a breach of warranty of title under the Indemnity Bond-Ex. B. dated December 19, 1912.4. It was contended by Mr. Ganapathy Iyer on behalf of the appellants that in O. S. No. 640 of 1923, defendant No. 3 .obtained a partition decree and a declaration that defendant No. 2 was not entitled to alienate his share in the A Schedule properties. It was submitted that on account of this decree the appellants lost title to half-share of A Schedule properties and accordingly the appellants were entitled to get back half the amount of consideration under the Indemnity Bond-Ex. B. The argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half-share of the third defendant in Court auction, was not a relevant factor so far as the claim for damages was concerned. It was suggested that the purchase in Court auction was an independent transaction and the defendants could not take the benefit of that transaction. We are unable to accept the contention of the appellants as correct. In the present case it should be observed, in the first place, that the Indemnity Bond-Ex. B states that defendant No. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son-Chidambaram-is set aside and you are made to sustain any loss". In the second place, it is important to notice that the sale-deed-Ex. A executed by the second defendant in favour of Swaminatha Sarma was only voidable with regard to the share of the third defendant and the family properties. The sale of the half-share of defendant No. 3 was not void ab initio .but it was only voidable if defendant No. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity. In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. A breach of the covenant can only occur on the disturbance of the vendees possession and so long as the vendee remains in possession he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a covenant of the warranty of title. The view, that we have expressed is borne out by the decision of the Madras High Court in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887 : (AIR 1915 Mad 708), in which A who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof. C then brought a suit against A and B. got a decree and obtained possession thereof in execution. In this state of facts it was held by Seshagiri Ayyar, J. that Bs cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was Art. 97 of the Limitation Act. At p. 889 of the Report (of ILR Mad): (at p. 710 of AIR) Seshagiri Ayyar, J. states :"These cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the viodable sale; and (c) where though the title is known to be imperfect, the contract is in part carried out by giving possession of the properties. In the first class of cases the starting point of limitation will be the date of the sale. That is Mr. Justice Bakewells view in Ramanatha Iyer v. Ozhaloor Pathiriseri, (1913) 14 MLT 524: and I do not think Mr. Justice Miller dissents from it. However, the present case is quite different. In the second class of cases the cause of action can arise only when it is found that there is no good title. The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified. The cause of action will, therefore, arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat v. Hanuman Mandur [(1892) ILR 19 Cal 123 (PC)] and in Bassu Kuar v. Dhum Singh [(1889) ILR 11 All 47 (PC)] are authorities for this position."A similar view has been expressed by the Allahabad High Court in Muhammad Siddiq v. Muhammad Nuh, ILR 52 All 604: (AIR 1930 All 771), and the Bombay High Court in Gulabchand Daulatram v. Suryajirao Ganpatrao, AIR 1950 Bom 401 . In the present case it has been found by the High Court that P. W. 1, the auction-purchaser was the brother-in-law of the plaintiffs and that he was managing the estate of the plaintiffs and defending O. S. 640 of 1923 on their behalf .It has also been found that P. W. 1 did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property. The only loss sustained by the plaintiffs was a sun; of Rs. 736 paid at the Court sale and a sum of Rs. 500 spent for the defence of O. S. No. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land. Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1,236 which was the actual loss sustained by them and they are not entitled to any further amount.
### Response:
0
### Explanation:
In the present case it should be observed, in the first place, that the Indemnity Bond-Ex. B states that defendant No. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son-Chidambaram-is set aside and you are made to sustain any loss". In the second place, it is important to notice that the sale-deed-Ex. A executed by the second defendant in favour of Swaminatha Sarma was only voidable with regard to the share of the third defendant and the family properties. The sale of the half-share of defendant No. 3 was not void ab initio .but it was only voidable if defendant No. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity. In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. A breach of the covenant can only occur on the disturbance of the vendees possession and so long as the vendee remains in possession he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a covenant of the warranty of title. The view, that we have expressed is borne out by the decision of the Madras High Court in Subbaraya Reddiar v. Rajagopala Reddiar, ILR 38 Mad 887 : (AIR 1915 Mad 708), in which A who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof. C then brought a suit against A and B. got a decree and obtained possession thereof insimilar view has been expressed by the Allahabad High Court in Muhammad Siddiq v. Muhammad Nuh, ILR 52 All 604: (AIR 1930 All 771), and the Bombay High Court in Gulabchand Daulatram v. Suryajirao Ganpatrao, AIR 1950 Bom 401 . In the present case it has been found by the High Court that P. W. 1, the auction-purchaser was the brother-in-law of the plaintiffs and that he was managing the estate of the plaintiffs and defending O. S. 640 of 1923 on their behalf .It has also been found that P. W. 1 did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property. The only loss sustained by the plaintiffs was a sun; of Rs. 736 paid at the Court sale and a sum of Rs. 500 spent for the defence of O. S. No. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land. Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1,236 which was the actual loss sustained by them and they are not entitled to any further amount.
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KSL & Industries Ltd Vs. M/s. Arihant Threads Ltd. & Others | may be considered to be a general law in relation to the recovery of debts. Whereas, the RDDB Act may be considered to be a special law in relation to the recovery of debts and the SICA may be considered to be a general law in this regard. For this purpose we rely on the decision in LIC Vs. Vijay Bahadur (supra). Normally the latter of the two would prevail on the principle that the Legislature was aware that it had enacted the earlier Act and yet chose to enact the subsequent Act with a non-obstante clause. In this case, however, the express intendment of Parliament in the non-obstante clause of the RDDB Act does not permit us to take that view. Though the RDDB Act is the later enactment, sub-section (2) of Section 34 specifically provides that the provisions of the Act or the rules thereunder shall be in addition to, and not in derogation of, the other laws mentioned therein including SICA. 50. The term “not in derogation” clearly expresses the intention of Parliament not to detract from or abrogate the provisions of SICA in any way. This, in effect must mean that Parliament intended the proceedings under SICA for reconstruction of a sick company to go on and for that purpose further intended that all other proceedings against the company and its properties should be stayed pending the process of reconstruction. While the term “proceedings” under Section 22 did not originally include the RDDB Act, which was not there in existence. Section 22 covers proceedings under the RDDB Act.51. The purpose of the two Acts is entirely different and where actions under the two laws may seem to be in conflict, Parliament has wisely preserved the proceedings under the SICA, by specifically providing for sub-section (2), which lays down that the later Act RDDB shall be in addition to and not in derogation of the SICA.52. We might add that this conclusion has been guided by what is considered to be one of the most crucial principles of interpretation viz. giving effect to the intention of the Legislature. The difficulty arose in this case mainly due to the absence of specific words denoting the intention of Parliament to cover applications for recovery of debts under the RDDB Act while enacting Section 22 of the SICA. As observed earlier, the obvious reason for this absence is the fact that the SICA was enacted earlier. It is the duty of this Court to consider SICA, after the enactment of the RDDB Act to ascertain the true intent and purpose of providing that no proceedings for execution or distraints or suits shall lie or be proceeded with. Undoubtedly, in the narrower sense an application for recovery of debt can be giving a restricted meaning i.e. a proceeding which commences on filing and terminates at the judgment. However, there is no need to give such a restricted meaning, since the true purpose of an application for recovery is to proceed to the logical end of execution and recovery itself, that is by way of execution and distraint. We thus have no hesitation in coming to the conclusion that Section 22 clearly covers and interdicts such an application for recovery made under the provisions of the RDB Act. We might remind ourselves of the oft-quoted statement of the principles of contextual construction laid down by this Court in Reserve Bank of India Versus Peerless General Finance and Investment Co. Ltd. & Ors. [(1987)1 SCC 424] , where this Court has observed:- “33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.” 53. Moreover, we have found nothing contrary in the intention of the SICA to exclude a recovery application from the purview of Section 22, indeed there could be no reason for such exclusion since the purpose of the provision is to protect the properties of a sick company, so that they may be dealt with in the best possible way for the purpose of its revival by the BIFR. In State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd. [AIR 1964 SC 669 ], the Court articulated the importance of preserving the beneficent purpose of the statute and observed:- “14. …….. We shall therefore proceed to examine the provisions of the Act on the footing that the test for determining whether the Government is bound by a statute is whether it is expressly named in the provision which it is contended binds it, or whether it “is manifest that from the terms of the statute, that it was the intention of the legislature that it shall be bound”, and that the intention to bind would be clearly made out if the beneficent purpose of the statute would be wholly frustrated unless the Government were bound.” 54. | 0[ds]48. This Court approved the observations of the Special Court to the effect that if the legislature confers a non-obstante clause on a later enactment, it means that the legislature intends that the later enactment should prevail. Further, it is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction two Acts can be harmoniously construed, then the latter must be adopted.49. In view of the observations of this Court in the decisions referred to and relied on by the learned counsel for the parties we find that, the purpose of the two enactments is entirely different. As observed earlier, the purpose of one is to provide ameliorative measures for reconstruction of sick companies, and the purpose of the other is to provide for speedy recovery of debts of banks and financial institutions. Both the Acts arein this sense. However, with reference to the specific purpose of reconstruction of sick companies, the SICA must be held to be a special law, though it may be considered to be a general law in relation to the recovery of debts. Whereas, the RDDB Act may be considered to be a special law in relation to the recovery of debts and the SICA may be considered to be a general law in this regard. For this purpose we rely on the decision in LIC Vs. Vijay Bahadur (supra). Normally the latter of the two would prevail on the principle that the Legislature was aware that it had enacted the earlier Act and yet chose to enact the subsequent Act with a non-obstante clause. In this case, however, the express intendment of Parliament in the non-obstante clause of the RDDB Act does not permit us to take that view. Though the RDDB Act is the later enactment, sub-section (2) of Section 34 specifically provides that the provisions of the Act or the rules thereunder shall be in addition to, and not in derogation of, the other laws mentioned therein including SICA.not inclearly expresses the intention of Parliament not to detract from or abrogate the provisions of SICA in any way. This, in effect must mean that Parliament intended the proceedings under SICA for reconstruction of a sick company to go on and for that purpose further intended that all other proceedings against the company and its properties should be stayed pending the process of reconstruction. While the termunder Section 22 did not originally include the RDDB Act, which was not there in existence. Section 22 covers proceedings under the RDDB Act.51. The purpose of the two Acts is entirely different and where actions under the two laws may seem to be in conflict, Parliament has wisely preserved the proceedings under the SICA, by specifically providing for sub-section (2), which lays down that the later Act RDDB shall be inaddition to andn derogation ofthe SICA.52. We might add that this conclusion has been guided by what is considered to be one of the most crucial principles of interpretation viz. giving effect to the intention of the Legislature. The difficulty arose in this case mainly due to the absence of specific words denoting the intention of Parliament to cover applications for recovery of debts under the RDDB Act while enacting Section 22 of the SICA. As observed earlier, the obvious reason for this absence is the fact that the SICA was enacted earlier. It is the duty of this Court to consider SICA, after the enactment of the RDDB Act to ascertain the true intent and purpose of providing that no proceedings for execution or distraints or suits shall lie or be proceeded with. Undoubtedly, in the narrower sense an application for recovery of debt can be giving a restricted meaning i.e. a proceeding which commences on filing and terminates at the judgment. However, there is no need to give such a restricted meaning, since the true purpose of an application for recovery is to proceed to the logical end of execution and recovery itself, that is by way of execution and distraint. We thus have no hesitation in coming to the conclusion that Section 22 clearly covers and interdicts such an application for recovery made under the provisions of the RDB Act. We might remind ourselves of the oft-quoted statement of the principles of contextual construction laid down by this Court in Reserve Bank of India Versus Peerless General Finance and Investment Co. Ltd. & Ors. [(1987)1 SCC 424] , where this Court hasInterpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.Moreover, we have found nothing contrary in the intention of the SICA to exclude a recovery application from the purview of Section 22, indeed there could be no reason for such exclusion since the purpose of the provision is to protect the properties of a sick company, so that they may be dealt with in the best possible way for the purpose of its revival by the BIFR. In State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd. [AIR 1964 SC 669 ], the Court articulated the importance of preserving the beneficent purpose of the statute and…….. We shall therefore proceed to examine the provisions of the Act on the footing that the test for determining whether the Government is bound by a statute is whether it is expressly named in the provision which it is contended binds it, or whether itmanifest that from the terms of the statute, that it was the intention of the legislature that it shall beand that the intention to bind would be clearly made out if the beneficent purpose of the statute would be wholly frustrated unless the Government weret is clear that(1) contains aclause, which gives the overriding effect to the RDDB Act.(2) acts in the nature of an exception to such an overriding effect. It states that this overriding effect is in relation to certain laws and that the RDDB Act shall be inaddition to andabrogation of, such laws. The SICA is undoubtedly one such law.38. The effect of(2) must necessarily be to preserve the powers of the authorities under the SICA and save the proceedings from being overridden by the later Act i.e. the RDDB Act.39. We, thus, find a harmonious scheme in relation to the proceedings for reconstruction of the company under the SICA, which includes the reconstruction of debts and even the sale or lease of the sickproperties for the purpose, which may or may not be a part of the security executed by the sick company in favour of a bank or a financial institution on the one hand, and the provisions of the RDDB Act, which deal with recovery of debts due to banks or financial institutions, if necessary by enforcing the security charged with the bank or financial institution, on the other.40. There is no doubt that both are special laws. SICA is a special law, which deals with the reconstruction of sick companies and matters incidental thereto, though it is general as regards other matters such as recovery of debts. The RDDB Act is also a special law, which deals with the recovery of money due to banks or financial institutions, through a special procedure, though it may be general as regards other matters such as the reconstruction of sick companies which it does not even specifically deal with. Thus the purpose of the two laws is different.The conflict that is said to arise is between Section 22 of the SICA which purports to make untenablefor recovery of the debt against the sick company andfor recovery on the one hand and on the other hand Section 34 of the RDDB Act contains an overriding effect to its own provision, obviously including those for recovery of debts. Some of the decisions of this Court dealing with this aspect may be noticed in Ram Narain Vs. Simla Banking & Industrial Co. Ltd. [AIR 1956 SC 614 : 1956 SCR 603 ]. Two statutes, both containingclauses providing that the particular provisions of the Act shall have effect (notwithstanding anything inconsistent contained therein in any other law for the time being in force) fell for consideration. The two Acts were the Banking Company Act 1949 and the Displaced Persons (Debt Adjustment) Act, 1951. This Court gave primacy to the Banking Companies Act. While doing so, this Court….. It is therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.In a subsequent case, this Court held that the right to possession enacted by the Delhi Rent Control Act, 1958 was not controlled by the Slum Clearance Act and the right could be enforced in the manner provided in Sectionwithout obtaining prior permission of the competent authority under the Slum Clearance Act. The conflict arose since the Slum Clearance Act contained aclause, to the effect that proceedings for eviction of tenants could not be taken without prior permission of the competent authority. The Delhi Rent Control Act conferred a right under Sectionto recover immediate possession in case the landlord had to vacate residential premises allotted to him by the Central Government. This right was conferred with aclause. This Court held that for resolving such conflicts, one test which may be adopted is that the later enactment must prevail over the earlier one. Having observed that the relevant provisions of the Delhi Rent Control Act had been enacted from 01.12.1975 alongwith aclause with the knowledge that the overriding provision of the Slum Clearance Act was already in existence, the later enactment must prevail over the former. | 0 | 8,388 | 1,988 | ### 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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may be considered to be a general law in relation to the recovery of debts. Whereas, the RDDB Act may be considered to be a special law in relation to the recovery of debts and the SICA may be considered to be a general law in this regard. For this purpose we rely on the decision in LIC Vs. Vijay Bahadur (supra). Normally the latter of the two would prevail on the principle that the Legislature was aware that it had enacted the earlier Act and yet chose to enact the subsequent Act with a non-obstante clause. In this case, however, the express intendment of Parliament in the non-obstante clause of the RDDB Act does not permit us to take that view. Though the RDDB Act is the later enactment, sub-section (2) of Section 34 specifically provides that the provisions of the Act or the rules thereunder shall be in addition to, and not in derogation of, the other laws mentioned therein including SICA. 50. The term “not in derogation” clearly expresses the intention of Parliament not to detract from or abrogate the provisions of SICA in any way. This, in effect must mean that Parliament intended the proceedings under SICA for reconstruction of a sick company to go on and for that purpose further intended that all other proceedings against the company and its properties should be stayed pending the process of reconstruction. While the term “proceedings” under Section 22 did not originally include the RDDB Act, which was not there in existence. Section 22 covers proceedings under the RDDB Act.51. The purpose of the two Acts is entirely different and where actions under the two laws may seem to be in conflict, Parliament has wisely preserved the proceedings under the SICA, by specifically providing for sub-section (2), which lays down that the later Act RDDB shall be in addition to and not in derogation of the SICA.52. We might add that this conclusion has been guided by what is considered to be one of the most crucial principles of interpretation viz. giving effect to the intention of the Legislature. The difficulty arose in this case mainly due to the absence of specific words denoting the intention of Parliament to cover applications for recovery of debts under the RDDB Act while enacting Section 22 of the SICA. As observed earlier, the obvious reason for this absence is the fact that the SICA was enacted earlier. It is the duty of this Court to consider SICA, after the enactment of the RDDB Act to ascertain the true intent and purpose of providing that no proceedings for execution or distraints or suits shall lie or be proceeded with. Undoubtedly, in the narrower sense an application for recovery of debt can be giving a restricted meaning i.e. a proceeding which commences on filing and terminates at the judgment. However, there is no need to give such a restricted meaning, since the true purpose of an application for recovery is to proceed to the logical end of execution and recovery itself, that is by way of execution and distraint. We thus have no hesitation in coming to the conclusion that Section 22 clearly covers and interdicts such an application for recovery made under the provisions of the RDB Act. We might remind ourselves of the oft-quoted statement of the principles of contextual construction laid down by this Court in Reserve Bank of India Versus Peerless General Finance and Investment Co. Ltd. & Ors. [(1987)1 SCC 424] , where this Court has observed:- “33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.” 53. Moreover, we have found nothing contrary in the intention of the SICA to exclude a recovery application from the purview of Section 22, indeed there could be no reason for such exclusion since the purpose of the provision is to protect the properties of a sick company, so that they may be dealt with in the best possible way for the purpose of its revival by the BIFR. In State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd. [AIR 1964 SC 669 ], the Court articulated the importance of preserving the beneficent purpose of the statute and observed:- “14. …….. We shall therefore proceed to examine the provisions of the Act on the footing that the test for determining whether the Government is bound by a statute is whether it is expressly named in the provision which it is contended binds it, or whether it “is manifest that from the terms of the statute, that it was the intention of the legislature that it shall be bound”, and that the intention to bind would be clearly made out if the beneficent purpose of the statute would be wholly frustrated unless the Government were bound.” 54.
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section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.Moreover, we have found nothing contrary in the intention of the SICA to exclude a recovery application from the purview of Section 22, indeed there could be no reason for such exclusion since the purpose of the provision is to protect the properties of a sick company, so that they may be dealt with in the best possible way for the purpose of its revival by the BIFR. In State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd. [AIR 1964 SC 669 ], the Court articulated the importance of preserving the beneficent purpose of the statute and…….. We shall therefore proceed to examine the provisions of the Act on the footing that the test for determining whether the Government is bound by a statute is whether it is expressly named in the provision which it is contended binds it, or whether itmanifest that from the terms of the statute, that it was the intention of the legislature that it shall beand that the intention to bind would be clearly made out if the beneficent purpose of the statute would be wholly frustrated unless the Government weret is clear that(1) contains aclause, which gives the overriding effect to the RDDB Act.(2) acts in the nature of an exception to such an overriding effect. It states that this overriding effect is in relation to certain laws and that the RDDB Act shall be inaddition to andabrogation of, such laws. The SICA is undoubtedly one such law.38. The effect of(2) must necessarily be to preserve the powers of the authorities under the SICA and save the proceedings from being overridden by the later Act i.e. the RDDB Act.39. We, thus, find a harmonious scheme in relation to the proceedings for reconstruction of the company under the SICA, which includes the reconstruction of debts and even the sale or lease of the sickproperties for the purpose, which may or may not be a part of the security executed by the sick company in favour of a bank or a financial institution on the one hand, and the provisions of the RDDB Act, which deal with recovery of debts due to banks or financial institutions, if necessary by enforcing the security charged with the bank or financial institution, on the other.40. There is no doubt that both are special laws. SICA is a special law, which deals with the reconstruction of sick companies and matters incidental thereto, though it is general as regards other matters such as recovery of debts. The RDDB Act is also a special law, which deals with the recovery of money due to banks or financial institutions, through a special procedure, though it may be general as regards other matters such as the reconstruction of sick companies which it does not even specifically deal with. Thus the purpose of the two laws is different.The conflict that is said to arise is between Section 22 of the SICA which purports to make untenablefor recovery of the debt against the sick company andfor recovery on the one hand and on the other hand Section 34 of the RDDB Act contains an overriding effect to its own provision, obviously including those for recovery of debts. Some of the decisions of this Court dealing with this aspect may be noticed in Ram Narain Vs. Simla Banking & Industrial Co. Ltd. [AIR 1956 SC 614 : 1956 SCR 603 ]. Two statutes, both containingclauses providing that the particular provisions of the Act shall have effect (notwithstanding anything inconsistent contained therein in any other law for the time being in force) fell for consideration. The two Acts were the Banking Company Act 1949 and the Displaced Persons (Debt Adjustment) Act, 1951. This Court gave primacy to the Banking Companies Act. While doing so, this Court….. It is therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.In a subsequent case, this Court held that the right to possession enacted by the Delhi Rent Control Act, 1958 was not controlled by the Slum Clearance Act and the right could be enforced in the manner provided in Sectionwithout obtaining prior permission of the competent authority under the Slum Clearance Act. The conflict arose since the Slum Clearance Act contained aclause, to the effect that proceedings for eviction of tenants could not be taken without prior permission of the competent authority. The Delhi Rent Control Act conferred a right under Sectionto recover immediate possession in case the landlord had to vacate residential premises allotted to him by the Central Government. This right was conferred with aclause. This Court held that for resolving such conflicts, one test which may be adopted is that the later enactment must prevail over the earlier one. Having observed that the relevant provisions of the Delhi Rent Control Act had been enacted from 01.12.1975 alongwith aclause with the knowledge that the overriding provision of the Slum Clearance Act was already in existence, the later enactment must prevail over the former.
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P. K. Narayanan Vs. State of Kerala | have been sustained before the fall. It is on the basis of this evidence that the prosecution wanted to make out a case that the deceased was first beaten up and then was thrown. As mentioned above, the CBI also conducted a dummy test to show that the deceased must have been thrown by somebody from the terrace. We have perused the evidence in this regard and from that atone it cannot be concluded that the death was homicidal. As a matter of fact, the medical experts PWs 53 to 55 admitted in their cross-examinations that all the injuries found on the deceased and noted in the post-mortem certificate can as well be sustained in an assault by several persons with different weapons. In view of such halting type of medical evidence, we do not think that the only inference can be that the death was homicidal 9. It is pertinent to note that the accused were also charged under Section 120-B read with Section 201 alleging that in pursuance of the criminal conspiracy the accused tampered with the evidence of murder after the occurrence to screen the offenders and that a false information was given to the police. Both the courts below have held that there is no material whatsoever to establish the same. It can thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the few above-mentioned circumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct of A-1 in not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence 10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation11. After a careful examination of the entire material on record, we are of the view that the prosecution has completely failed to establish the guilt of A-1 and A-2. Accordingly we set aside the convictions and sentences passed against A-1 and A-2 and allow Criminal Appeal Nos. 315 and 316 of 1990 SLP (Crl.) Nos. 3329-31 of 1994(Arising out of Crl. M. Ps. Nos. 4831-33 of 1990) 12. These Crl. MPs have been filed by Shri S. K. Viswambharan, Superintendent of Police, Pathanamthitta District, Kerala who figured as PW 59 in this case seeking permission to file the special leave petition with a prayer that certain adverse remarks made by the High Court against him may be expunged and for condonation of delay and for stay. By our order dated 28-9-94 we condoned the delay and granted the permission to file the special leave petition 13. The petitioner at the relevant time was DSP and the investigating team consisted of himself, another DSP, 2 SPs, DIG and the IG. This team after due investigation came to the conclusion that the death of the deceased was due to suicide. Subsequently by an order of the Supreme Court reinvestigation was conducted by the CBI and the charge-sheet was laid against the four accused. As mentioned above three out of them were convicted by the Sessions Court and the High Court while dismissing the appeal of two accused passed certain adverse remarks and strictures against the petitioner. The High Court observed that the conduct of PW 59 (the petitioner) in reporting the case as of suicide without contacting PWs 54 and 55 justifies drawing an inference that powerful influences were at work to deflect and distort the investigation. There are some more observations in this context against the petitioner. It can therefore be seen that the High Court entertained doubts regarding the honesty of the petitioners participation in the investigation and as to how he came to the conclusion that it was a case of suicide which largely depends on the appreciation of the medical evidence. We have already referred to the relevant evidence on record in this context including the medical evidence. It has also come on record that the deceased was treated by a Psychiatrist and certain drugs also were purchased by the deceased and therefore the possibility of the investigating officer having an honest impression that the deceased might have committed suicide, cannot be ruled out. As a matter of fact the trial court after a consideration of the relevant evidence also made a similar observation. We have also noted that the medical evidence is not conclusive. | 1[ds]The High Court, as a matter of fact, acquittedIt is interesting to note at this stage that the trial court took upon the exercise of eliminating one or other inmates who could have committed the crime and by strange process of reasoning fixed the liability on3. Both the courts below have referred to the evidence of PWs 4, 5, 7, 8, 11, 12, 13, 15 and 17. Out of them PW 17 turned hostile. PW 13 simply stated that as the doors were closed they could not go out and that as usual, he and some other employees were sleeping in the dining hall. PW 3 stated that before the incident he saw the deceased in the company ofat the time of his checking out. His evidence in any manner does not incriminateThe categorical finding of the trial court is that the deceased was last seen in the company ofand the High Court, however, took the view that the case againstis not at all proved. The main evidence relied upon by the courts below to connectis that of PW 4. PW 4 deposed that he heard something heavy falling from the terrace of the tourist home. He is employed in another hotel on the southern side of the tourist home and in between there is a piece of vacant land. According to him he used to sleep on the terrace and after hearing the sound he saw a person running away from the tourist home direction and the said person jumped out of the compound wall and ran towards the north. PW 4 immediately got down from the terrace and called his friend Sudhakaran and told him what he had heard. Then they went to the courtyard and recognised the deceased who was lying injured. It is very important to note that PW 4 in the initial stages did not mention that the person whom he saw running away wasIt is only at a highly belated stage when CBI came into picture that he appears to have told them that he sawrunning away. Even before the CBI admittedly he did not disclose everything but when he was again questioned, according to him, he told the CBI that he sawrunning away. We fail to appreciate as to how reliance can be placed on such unsatisfactory evidence for convictingunder Section 302 read with SectionIPC. This witness wasat length. There are quite a few other infirmities in his evidence but it may not be necessary for us to refer to them. We have perused the evidence of other witnesses. They do not in any manner improve the prosecution case. There is no other evidence worth mentioning which connectswith the crime except mere suspicion on the basis that he was a driver and trusted bodyguard ofNo doubt in the case of conspiracy there cannot be direct evidence but the view taken by the High Court that the motive, opportunity and possible complicity in the offence are inferential from the available facts and circumstances and on that basis an offence of conspiracy would be made out, is not justified on the basis of the evidence on the record. It may not be necessary for us to discuss that part of the evidence dealing with motive Assuming thatwas apprehensive that the deceased might disclose his trade secrets, that by itself cannot prove the conspiracy. The High Court, however, pointed out that the conduct of the parties would be a relevant circumstance to make out an offence of conspiracy. The conduct ofreferred to in this context is that he went to the tourist home at 9 a. m. and that he did not go or meet or console PW 1 on that day and that he rewardedsufficiently to purchase ornaments and make investments. According to the High Court, these circumstances which indicate thatwas a close associate ofcoupled with the circumstance thatwas found running away, would be sufficient to make out a case thatconspired to eliminate the deceased. Having give our anxious considerations, we cannot agree with the view taken by the High Court. On the other hand, the evidence relied upon by the prosecution to prove the conspiracy is wholly insufficient. After having perused the judgments of both the courts below, we find that the convictions are based more on suspicion particularly on the ground thathad motive to eliminate thehave perused the evidence in this regard and from that atone it cannot be concluded that the death was homicidal. As a matter of fact, the medical experts PWs 53 to 55 admitted in theirthat all the injuries found on the deceased and noted in thecertificate can as well be sustained in an assault by several persons with different weapons. In view of such halting type of medical evidence, we do not think that the only inference can be that the death wascan thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the fewcircumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct ofin not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogentif some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation11. After a careful examination of the entire material on record, we are of the view that the prosecution has completely failed to establish the guilt ofhe High Court observed that the conduct of PW 59 (the petitioner) in reporting the case as of suicide without contacting PWs 54 and 55 justifies drawing an inference that powerful influences were at work to deflect and distort the investigation. There are some more observations in this context against the petitioner. It can therefore be seen that the High Court entertained doubts regarding the honesty of the petitioners participation in the investigation and as to how he came to the conclusion that it was a case of suicide which largely depends on the appreciation of the medical evidence. We have already referred to the relevant evidence on record in this context including the medical evidence. It has also come on record that the deceased was treated by a Psychiatrist and certain drugs also were purchased by the deceased and therefore the possibility of the investigating officer having an honest impression that the deceased might have committed suicide, cannot be ruled out. As a matter of fact the trial court after a consideration of the relevant evidence also made a similar observation. We have also noted that the medical evidence is not conclusive. | 1 | 4,165 | 1,298 | ### Instruction:
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have been sustained before the fall. It is on the basis of this evidence that the prosecution wanted to make out a case that the deceased was first beaten up and then was thrown. As mentioned above, the CBI also conducted a dummy test to show that the deceased must have been thrown by somebody from the terrace. We have perused the evidence in this regard and from that atone it cannot be concluded that the death was homicidal. As a matter of fact, the medical experts PWs 53 to 55 admitted in their cross-examinations that all the injuries found on the deceased and noted in the post-mortem certificate can as well be sustained in an assault by several persons with different weapons. In view of such halting type of medical evidence, we do not think that the only inference can be that the death was homicidal 9. It is pertinent to note that the accused were also charged under Section 120-B read with Section 201 alleging that in pursuance of the criminal conspiracy the accused tampered with the evidence of murder after the occurrence to screen the offenders and that a false information was given to the police. Both the courts below have held that there is no material whatsoever to establish the same. It can thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the few above-mentioned circumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct of A-1 in not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence 10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation11. After a careful examination of the entire material on record, we are of the view that the prosecution has completely failed to establish the guilt of A-1 and A-2. Accordingly we set aside the convictions and sentences passed against A-1 and A-2 and allow Criminal Appeal Nos. 315 and 316 of 1990 SLP (Crl.) Nos. 3329-31 of 1994(Arising out of Crl. M. Ps. Nos. 4831-33 of 1990) 12. These Crl. MPs have been filed by Shri S. K. Viswambharan, Superintendent of Police, Pathanamthitta District, Kerala who figured as PW 59 in this case seeking permission to file the special leave petition with a prayer that certain adverse remarks made by the High Court against him may be expunged and for condonation of delay and for stay. By our order dated 28-9-94 we condoned the delay and granted the permission to file the special leave petition 13. The petitioner at the relevant time was DSP and the investigating team consisted of himself, another DSP, 2 SPs, DIG and the IG. This team after due investigation came to the conclusion that the death of the deceased was due to suicide. Subsequently by an order of the Supreme Court reinvestigation was conducted by the CBI and the charge-sheet was laid against the four accused. As mentioned above three out of them were convicted by the Sessions Court and the High Court while dismissing the appeal of two accused passed certain adverse remarks and strictures against the petitioner. The High Court observed that the conduct of PW 59 (the petitioner) in reporting the case as of suicide without contacting PWs 54 and 55 justifies drawing an inference that powerful influences were at work to deflect and distort the investigation. There are some more observations in this context against the petitioner. It can therefore be seen that the High Court entertained doubts regarding the honesty of the petitioners participation in the investigation and as to how he came to the conclusion that it was a case of suicide which largely depends on the appreciation of the medical evidence. We have already referred to the relevant evidence on record in this context including the medical evidence. It has also come on record that the deceased was treated by a Psychiatrist and certain drugs also were purchased by the deceased and therefore the possibility of the investigating officer having an honest impression that the deceased might have committed suicide, cannot be ruled out. As a matter of fact the trial court after a consideration of the relevant evidence also made a similar observation. We have also noted that the medical evidence is not conclusive.
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piece of vacant land. According to him he used to sleep on the terrace and after hearing the sound he saw a person running away from the tourist home direction and the said person jumped out of the compound wall and ran towards the north. PW 4 immediately got down from the terrace and called his friend Sudhakaran and told him what he had heard. Then they went to the courtyard and recognised the deceased who was lying injured. It is very important to note that PW 4 in the initial stages did not mention that the person whom he saw running away wasIt is only at a highly belated stage when CBI came into picture that he appears to have told them that he sawrunning away. Even before the CBI admittedly he did not disclose everything but when he was again questioned, according to him, he told the CBI that he sawrunning away. We fail to appreciate as to how reliance can be placed on such unsatisfactory evidence for convictingunder Section 302 read with SectionIPC. This witness wasat length. There are quite a few other infirmities in his evidence but it may not be necessary for us to refer to them. We have perused the evidence of other witnesses. They do not in any manner improve the prosecution case. There is no other evidence worth mentioning which connectswith the crime except mere suspicion on the basis that he was a driver and trusted bodyguard ofNo doubt in the case of conspiracy there cannot be direct evidence but the view taken by the High Court that the motive, opportunity and possible complicity in the offence are inferential from the available facts and circumstances and on that basis an offence of conspiracy would be made out, is not justified on the basis of the evidence on the record. It may not be necessary for us to discuss that part of the evidence dealing with motive Assuming thatwas apprehensive that the deceased might disclose his trade secrets, that by itself cannot prove the conspiracy. The High Court, however, pointed out that the conduct of the parties would be a relevant circumstance to make out an offence of conspiracy. The conduct ofreferred to in this context is that he went to the tourist home at 9 a. m. and that he did not go or meet or console PW 1 on that day and that he rewardedsufficiently to purchase ornaments and make investments. According to the High Court, these circumstances which indicate thatwas a close associate ofcoupled with the circumstance thatwas found running away, would be sufficient to make out a case thatconspired to eliminate the deceased. Having give our anxious considerations, we cannot agree with the view taken by the High Court. On the other hand, the evidence relied upon by the prosecution to prove the conspiracy is wholly insufficient. After having perused the judgments of both the courts below, we find that the convictions are based more on suspicion particularly on the ground thathad motive to eliminate thehave perused the evidence in this regard and from that atone it cannot be concluded that the death was homicidal. As a matter of fact, the medical experts PWs 53 to 55 admitted in theirthat all the injuries found on the deceased and noted in thecertificate can as well be sustained in an assault by several persons with different weapons. In view of such halting type of medical evidence, we do not think that the only inference can be that the death wascan thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the fewcircumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct ofin not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogentif some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation11. After a careful examination of the entire material on record, we are of the view that the prosecution has completely failed to establish the guilt ofhe High Court observed that the conduct of PW 59 (the petitioner) in reporting the case as of suicide without contacting PWs 54 and 55 justifies drawing an inference that powerful influences were at work to deflect and distort the investigation. There are some more observations in this context against the petitioner. It can therefore be seen that the High Court entertained doubts regarding the honesty of the petitioners participation in the investigation and as to how he came to the conclusion that it was a case of suicide which largely depends on the appreciation of the medical evidence. We have already referred to the relevant evidence on record in this context including the medical evidence. It has also come on record that the deceased was treated by a Psychiatrist and certain drugs also were purchased by the deceased and therefore the possibility of the investigating officer having an honest impression that the deceased might have committed suicide, cannot be ruled out. As a matter of fact the trial court after a consideration of the relevant evidence also made a similar observation. We have also noted that the medical evidence is not conclusive.
|
Rallis India Ltd Vs. State Of Andhra Pradesh | it was also entitled to a refund of such tax, the same was taken to have been paid by and refunded to it. As the section then stood therefore the assessment order was unexceptionable. This was also the position under clause (b) of Section 15 of the Central Act the language of which is practically the same as of the proviso to Section 6 of the A.P. Act. 8. The matter however does not end there as the amendment of Section 15 of the Central Act in 1972 and that of Section 6 of the A.P. Act in 1974 made a real difference which appears to us to be an insurmountable hurdle in the way of the appellants stand being accepted. As already stated, both the amendments were retrospective so as to be effective from October 1, 1958. That means that the law to be applied to the assessment finalised through the two orders dated April 30, 1971, by the C.T. O. was that modified by the two amendments. Of course we are here concerned only with the order of assessment made under the A.P. Act. That order would be good if it is in conformity with the provisions of the amended Section 6 of the A.P. Act but not otherwise. Under the amended section the liability to tax remained unchanged but the entitlement to refund was abolished and was substituted by a right to reimbursement of the tax which arose only if the concerned goods were later on sold in the course of inter-state trade or commerce under the Central Act and tax under that Act was paid in respect thereof. Such reimbursement would not be available merely because the goods in question had been sold in the course of inter-state trade or commerce when they were not subjected to tax under the Central Act. Admittedly no such tax was paid by the appellant in the course of inter-state trade on goods regarding the purchase of which reimbursement of the tax leviable under the A.P. Act is claimed. The proviso to Section 6 as amended in 1974 therefore is of no assistance to it. 9. Nor does the amended clause (b) of Section 15 of the Central Act come to the appellants aid, as the language used therein, for all practical purposes, is the same as that of the amended proviso to Section 6 of the A.P. Act and clearly means that the tax under the A.P. Act would be reimbursible only to a dealer who has paid tax under the Central Act in respect of the sale of the goods in question in the course of inter-state trade or commerce. 10. Faced with the above situation, Mr. Desai, learned counsel for the appellant, pressed into service a novel contention to the effect that the appellant was not asking for any reimbursement or refund, that it was the D.C.C.T who had cancelled the order of refund (inherent in the exemption granted by the C.T.O.) and; that there was no provision authorising the D.C.C.T. to force the appellant to return any amount paid to it as a refund. The argument is obviously fallacious. The D.C.C.T. has done nothing more than to revise an order of the C.T.O. which has been varied only insofar as it was not in conformity with the law deemed to have been prevailing on the date of the assessment by virtue of the retrospective amendment of Section 6 of the A.P. Act. It is conceded by Mr. Desai that the exemption has to be regard as a composite order of levy plus refund. That part of it which granted a refund was illegal under the amended proviso to Section 6 of the A.P. Act inasmuch as no reimbursement was due in respect of goods on which tax under the Central Act had not been paid. The D.C.C.T. therefore had not only the power but was duty-bound to strike down the order of refund as being illegal. The order of the C.T.O. as revised by the D.C.C.T. thus is reduced to an order merely of levy of the tax due under the opening paragraph of Section 6 of the A.P. Act so that the appellant becomes liable to pay such tax. 11. The only other argument put forward by Mr. Desai in support of the appeal rested on the provisions of Rule 27-A above extracted in its unamended form. The rule can obviously be of no help to him insomuch as even if it can be construed as laying down something in favour of the appellant it cannot override the provisions of the Act under which it is fraud. No amount of argument would make a rule override or control the legislative enactment under the authority of which it comes into being and that is why the rule was amended in 1974 so as to conform to the parent statute. 12. It may be stated that at one stage of the argument Mr. Desai drew our attention to the fact that by reason of the amendments made in the statute law and the consequent demand by the D.C.C.T. for the refunded amount the appellant had been placed under a burden which did not fall on those who collected the Central sales tax from the purchasers and paid it to the government because they were held entitled to refund of the tax under the A.P. Tax Act even though they had not paid anything out of their own pocket as tax under the Central Act. However, as he did not challenge the constitutional validity of any of the amended sections he did not pursue the matte further and we need take no further notice of it. 13. We might mention here that Daita Suryanarayana and Company case ((1977) 39 STC 500 (AP)) on which the High Court relied in support of the impugned judgment takes a view of the law which is in conformity with the opinion expressed above by us and we unreservedly approve of the same. | 0[ds]7. As on April 30, 1971 the provisions of Section 6 of the A.P. Act laid down that if goods were sold in the course of inter-state trade or commerce and tax had been levied on the sale or purchase thereof under that Act, the dealer concerned would be entitled to refund of such tax. As on the date of assessment therefore the appellant was within its rights to claim a refund of any tax that it was liable to pay on the purchase of cotton later sold by it in the course of inter-state trade; and although the section did not talk of any exemption, all that the C.T.O. could have meant by granting the appellant exemption from the tax was that it became liable to pay a tax under the opening para of the section but as it was also entitled to a refund of such tax, the same was taken to have been paid by and refunded to it. As the section then stood therefore the assessment order was unexceptionable. This was also the position under clause (b) of Section 15 of the Central Act the language of which is practically the same as of the proviso to Section 6 of the A.P. Act8. The matter however does not end there as the amendment of Section 15 of the Central Act in 1972 and that of Section 6 of the A.P. Act in 1974 made a real difference which appears to us to be an insurmountable hurdle in the way of the appellants stand being accepted. As already stated, both the amendments were retrospective so as to be effective from October 1, 1958. That means that the law to be applied to the assessment finalised through the two orders dated April 30, 1971, by the C.T. O. was that modified by the two amendments. Of course we are here concerned only with the order of assessment made under the A.P. Act. That order would be good if it is in conformity with the provisions of the amended Section 6 of the A.P. Act but not otherwise. Under the amended section the liability to tax remained unchanged but the entitlement to refund was abolished and was substituted by a right to reimbursement of the tax which arose only if the concerned goods were later on sold in the course of inter-state trade or commerce under the Central Act and tax under that Act was paid in respect thereof. Such reimbursement would not be available merely because the goods in question had been sold in the course of inter-state trade or commerce when they were not subjected to tax under the Central Act. Admittedly no such tax was paid by the appellant in the course of inter-state trade on goods regarding the purchase of which reimbursement of the tax leviable under the A.P. Act is claimed. The proviso to Section 6 as amended in 1974 therefore is of no assistance to it9. Nor does the amended clause (b) of Section 15 of the Central Act come to the appellants aid, as the language used therein, for all practical purposes, is the same as that of the amended proviso to Section 6 of the A.P. Act and clearly means that the tax under the A.P. Act would be reimbursible only to a dealer who has paid tax under the Central Act in respect of the sale of the goods in question in the course of inter-state trade or commerceThe D.C.C.T. has done nothing more than to revise an order of the C.T.O. which has been varied only insofar as it was not in conformity with the law deemed to have been prevailing on the date of the assessment by virtue of the retrospective amendment of Section 6 of the A.P. Act. It is conceded by Mr. Desai that the exemption has to be regard as a composite order of levy plus refund. That part of it which granted a refund was illegal under the amended proviso to Section 6 of the A.P. Act inasmuch as no reimbursement was due in respect of goods on which tax under the Central Act had not been paid. The D.C.C.T. therefore had not only the power but was duty-bound to strike down the order of refund as being illegal. The order of the C.T.O. as revised by the D.C.C.T. thus is reduced to an order merely of levy of the tax due under the opening paragraph of Section 6 of the A.P. Act so that the appellant becomes liable to pay such tax. The rule can obviously be of no help to him insomuch as even if it can be construed as laying down something in favour of the appellant it cannot override the provisions of the Act under which it is fraud. No amount of argument would make a rule override or control the legislative enactment under the authority of which it comes into being and that is why the rule was amended in 1974 so as to conform to the parent statuteHowever, as he did not challenge the constitutional validity of any of the amended sections he did not pursue the matte further and we need take no further notice of it13. We might mention here that Daita Suryanarayana and Company case ((1977) 39 STC 500 (AP)) on which the High Court relied in support of the impugned judgment takes a view of the law which is in conformity with the opinion expressed above by us and we unreservedly approve of the same. | 0 | 3,416 | 989 | ### Instruction:
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it was also entitled to a refund of such tax, the same was taken to have been paid by and refunded to it. As the section then stood therefore the assessment order was unexceptionable. This was also the position under clause (b) of Section 15 of the Central Act the language of which is practically the same as of the proviso to Section 6 of the A.P. Act. 8. The matter however does not end there as the amendment of Section 15 of the Central Act in 1972 and that of Section 6 of the A.P. Act in 1974 made a real difference which appears to us to be an insurmountable hurdle in the way of the appellants stand being accepted. As already stated, both the amendments were retrospective so as to be effective from October 1, 1958. That means that the law to be applied to the assessment finalised through the two orders dated April 30, 1971, by the C.T. O. was that modified by the two amendments. Of course we are here concerned only with the order of assessment made under the A.P. Act. That order would be good if it is in conformity with the provisions of the amended Section 6 of the A.P. Act but not otherwise. Under the amended section the liability to tax remained unchanged but the entitlement to refund was abolished and was substituted by a right to reimbursement of the tax which arose only if the concerned goods were later on sold in the course of inter-state trade or commerce under the Central Act and tax under that Act was paid in respect thereof. Such reimbursement would not be available merely because the goods in question had been sold in the course of inter-state trade or commerce when they were not subjected to tax under the Central Act. Admittedly no such tax was paid by the appellant in the course of inter-state trade on goods regarding the purchase of which reimbursement of the tax leviable under the A.P. Act is claimed. The proviso to Section 6 as amended in 1974 therefore is of no assistance to it. 9. Nor does the amended clause (b) of Section 15 of the Central Act come to the appellants aid, as the language used therein, for all practical purposes, is the same as that of the amended proviso to Section 6 of the A.P. Act and clearly means that the tax under the A.P. Act would be reimbursible only to a dealer who has paid tax under the Central Act in respect of the sale of the goods in question in the course of inter-state trade or commerce. 10. Faced with the above situation, Mr. Desai, learned counsel for the appellant, pressed into service a novel contention to the effect that the appellant was not asking for any reimbursement or refund, that it was the D.C.C.T who had cancelled the order of refund (inherent in the exemption granted by the C.T.O.) and; that there was no provision authorising the D.C.C.T. to force the appellant to return any amount paid to it as a refund. The argument is obviously fallacious. The D.C.C.T. has done nothing more than to revise an order of the C.T.O. which has been varied only insofar as it was not in conformity with the law deemed to have been prevailing on the date of the assessment by virtue of the retrospective amendment of Section 6 of the A.P. Act. It is conceded by Mr. Desai that the exemption has to be regard as a composite order of levy plus refund. That part of it which granted a refund was illegal under the amended proviso to Section 6 of the A.P. Act inasmuch as no reimbursement was due in respect of goods on which tax under the Central Act had not been paid. The D.C.C.T. therefore had not only the power but was duty-bound to strike down the order of refund as being illegal. The order of the C.T.O. as revised by the D.C.C.T. thus is reduced to an order merely of levy of the tax due under the opening paragraph of Section 6 of the A.P. Act so that the appellant becomes liable to pay such tax. 11. The only other argument put forward by Mr. Desai in support of the appeal rested on the provisions of Rule 27-A above extracted in its unamended form. The rule can obviously be of no help to him insomuch as even if it can be construed as laying down something in favour of the appellant it cannot override the provisions of the Act under which it is fraud. No amount of argument would make a rule override or control the legislative enactment under the authority of which it comes into being and that is why the rule was amended in 1974 so as to conform to the parent statute. 12. It may be stated that at one stage of the argument Mr. Desai drew our attention to the fact that by reason of the amendments made in the statute law and the consequent demand by the D.C.C.T. for the refunded amount the appellant had been placed under a burden which did not fall on those who collected the Central sales tax from the purchasers and paid it to the government because they were held entitled to refund of the tax under the A.P. Tax Act even though they had not paid anything out of their own pocket as tax under the Central Act. However, as he did not challenge the constitutional validity of any of the amended sections he did not pursue the matte further and we need take no further notice of it. 13. We might mention here that Daita Suryanarayana and Company case ((1977) 39 STC 500 (AP)) on which the High Court relied in support of the impugned judgment takes a view of the law which is in conformity with the opinion expressed above by us and we unreservedly approve of the same.
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7. As on April 30, 1971 the provisions of Section 6 of the A.P. Act laid down that if goods were sold in the course of inter-state trade or commerce and tax had been levied on the sale or purchase thereof under that Act, the dealer concerned would be entitled to refund of such tax. As on the date of assessment therefore the appellant was within its rights to claim a refund of any tax that it was liable to pay on the purchase of cotton later sold by it in the course of inter-state trade; and although the section did not talk of any exemption, all that the C.T.O. could have meant by granting the appellant exemption from the tax was that it became liable to pay a tax under the opening para of the section but as it was also entitled to a refund of such tax, the same was taken to have been paid by and refunded to it. As the section then stood therefore the assessment order was unexceptionable. This was also the position under clause (b) of Section 15 of the Central Act the language of which is practically the same as of the proviso to Section 6 of the A.P. Act8. The matter however does not end there as the amendment of Section 15 of the Central Act in 1972 and that of Section 6 of the A.P. Act in 1974 made a real difference which appears to us to be an insurmountable hurdle in the way of the appellants stand being accepted. As already stated, both the amendments were retrospective so as to be effective from October 1, 1958. That means that the law to be applied to the assessment finalised through the two orders dated April 30, 1971, by the C.T. O. was that modified by the two amendments. Of course we are here concerned only with the order of assessment made under the A.P. Act. That order would be good if it is in conformity with the provisions of the amended Section 6 of the A.P. Act but not otherwise. Under the amended section the liability to tax remained unchanged but the entitlement to refund was abolished and was substituted by a right to reimbursement of the tax which arose only if the concerned goods were later on sold in the course of inter-state trade or commerce under the Central Act and tax under that Act was paid in respect thereof. Such reimbursement would not be available merely because the goods in question had been sold in the course of inter-state trade or commerce when they were not subjected to tax under the Central Act. Admittedly no such tax was paid by the appellant in the course of inter-state trade on goods regarding the purchase of which reimbursement of the tax leviable under the A.P. Act is claimed. The proviso to Section 6 as amended in 1974 therefore is of no assistance to it9. Nor does the amended clause (b) of Section 15 of the Central Act come to the appellants aid, as the language used therein, for all practical purposes, is the same as that of the amended proviso to Section 6 of the A.P. Act and clearly means that the tax under the A.P. Act would be reimbursible only to a dealer who has paid tax under the Central Act in respect of the sale of the goods in question in the course of inter-state trade or commerceThe D.C.C.T. has done nothing more than to revise an order of the C.T.O. which has been varied only insofar as it was not in conformity with the law deemed to have been prevailing on the date of the assessment by virtue of the retrospective amendment of Section 6 of the A.P. Act. It is conceded by Mr. Desai that the exemption has to be regard as a composite order of levy plus refund. That part of it which granted a refund was illegal under the amended proviso to Section 6 of the A.P. Act inasmuch as no reimbursement was due in respect of goods on which tax under the Central Act had not been paid. The D.C.C.T. therefore had not only the power but was duty-bound to strike down the order of refund as being illegal. The order of the C.T.O. as revised by the D.C.C.T. thus is reduced to an order merely of levy of the tax due under the opening paragraph of Section 6 of the A.P. Act so that the appellant becomes liable to pay such tax. The rule can obviously be of no help to him insomuch as even if it can be construed as laying down something in favour of the appellant it cannot override the provisions of the Act under which it is fraud. No amount of argument would make a rule override or control the legislative enactment under the authority of which it comes into being and that is why the rule was amended in 1974 so as to conform to the parent statuteHowever, as he did not challenge the constitutional validity of any of the amended sections he did not pursue the matte further and we need take no further notice of it13. We might mention here that Daita Suryanarayana and Company case ((1977) 39 STC 500 (AP)) on which the High Court relied in support of the impugned judgment takes a view of the law which is in conformity with the opinion expressed above by us and we unreservedly approve of the same.
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Rameshwar Prasad & Others Vs. Union of India & Another | is of serious significance and it sometime amounts to undoing the will of the people of the State by dismissing the duly constituted Government and dissolving the duly constituted Legislative Assembly. Any misuse of such power is to be curbed if it is exercised for mala fide purposes or for wholly extraneous reasons based on irrelevant grounds. The Court can certainly go into the materials placed by the Governor which led to the decision of dissolving the State Assembly. 28. The Presidential proclamation dissolving the Bihar State Legislative Assembly was issued pursuant to two reports sent in by the Governor. It may be remembered that Article 356(1) Proclamation imposing Presidents Rule was issued on 7th March, 2005. Thereafter, on 22nd April, 2005, the Governor sent a report wherein he stated that none of the political parties. either individually or with the then pre-election combination or with post-election alliance, could stake a claim to form a popular Government wherein they could claim support of a simple majority of 122 in a House of 243. The Governor had also indicated that there are certain newspaper reports and other reports gathered through meeting with different parties functionaries that some steps are being taken to win over the elected representatives of the people through various allurements like money, caste, post, etc. Thereafter, on 21.5.2005, the Governor of Bihar sent another report and based on that, the Bihar State Assembly was dissolved on 23rd May, 2005. In the report dated 21st May, 2005, the Governor reiterated his earlier report that no party had approached him to form a popular Government since none could claim the support of a simple majority of 122 in a House of 243. In that report, the Governor had also stated that 17/18, or more perhaps, LJP MLAs are moving towards the JD(U) and that various allurements have been offered to them and it was an alarming feature and the Governor was also of the opinion that it was positively affecting the Constitutional provisions and safeguards built therein and distorted the verdict of the people. 29. The contention urged by learned ASG, Shri Gopal Subramaniam was that this is the material which was placed before the President before a Proclamation was issued under Article 174(2)(b) of the Constitution. It is important to note that the writ petitioners have no case that JD(U) or any other alliance had acquired majority and that they had approached the Governor staking their claim for forming a Government. No material is placed before us to show that the JD(U) or its alliance with BJP had ever met the Governor praying that they had got the right to form a Government. The plea of the petitioners counsel is that they were about to form a Government and in order to scuttle that plan the Governor sent a report whereby the Assembly was dissolved to defeat that plan is without any basis. The Governor in his report stated that 17 or 18 members of the LJP had joined the JD(U)-BJP alliance, but no materials have been placed before us to show that they had, in fact, joined the alliance to form a Government. One letter has been produced by one of the petitioners and the same is not signed by all the MLAs and as regards some of them, some others had put their signatures. Therefore, it is incorrect to say that the Governor had taken steps to see that the Assembly was dissolved hastily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had any case that they had obtained majority support or were about to get a majority support or were in a position to form minority Government with the support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the Presidents Rule was issued under Article 356(1). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a mala fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that in Karnataka, Meghalaya and Nagaland cases, there was a democratically-elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present case. It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting for a reasonable period, the same cannot be challenged on the ground that the Governor in his report had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democratically- elected Government. If Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of power based on totally irrelevant grounds. | 0[ds]Therefore, it is incorrect to say that the Governor had taken steps to see that the Assembly was dissolved hastily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had any case that they had obtained majority support or were about to get a majority support or were in a position to form minority Government with the support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the Presidents Rule was issued under Article 356(1). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a mala fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that in Karnataka, Meghalaya and Nagaland cases, there was a democratically-elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present case. It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting for a reasonable period, the same cannot be challenged on the ground that the Governor in his report had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democratically- elected Government. If Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of power based on totally irrelevant groundsArticle 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. This Court never had the occasion to consider the question of legality of dissolution of a Legislative Assembly even before its first meeting contemplated under Article 172 of the Constitution. It has been contended on behalf of the petitioners by Mr. Narsimha and Mr. Viplav Sharma,, that a Legislative Assembly can be dissolved under Article 174(2)(b) only after its first meeting is held as postulated by Article 172 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence. What does not exist, cannot be dissolved, is the submission. In this regard, the question to be considered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to form the Government. | 0 | 97,698 | 660 | ### 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:
is of serious significance and it sometime amounts to undoing the will of the people of the State by dismissing the duly constituted Government and dissolving the duly constituted Legislative Assembly. Any misuse of such power is to be curbed if it is exercised for mala fide purposes or for wholly extraneous reasons based on irrelevant grounds. The Court can certainly go into the materials placed by the Governor which led to the decision of dissolving the State Assembly. 28. The Presidential proclamation dissolving the Bihar State Legislative Assembly was issued pursuant to two reports sent in by the Governor. It may be remembered that Article 356(1) Proclamation imposing Presidents Rule was issued on 7th March, 2005. Thereafter, on 22nd April, 2005, the Governor sent a report wherein he stated that none of the political parties. either individually or with the then pre-election combination or with post-election alliance, could stake a claim to form a popular Government wherein they could claim support of a simple majority of 122 in a House of 243. The Governor had also indicated that there are certain newspaper reports and other reports gathered through meeting with different parties functionaries that some steps are being taken to win over the elected representatives of the people through various allurements like money, caste, post, etc. Thereafter, on 21.5.2005, the Governor of Bihar sent another report and based on that, the Bihar State Assembly was dissolved on 23rd May, 2005. In the report dated 21st May, 2005, the Governor reiterated his earlier report that no party had approached him to form a popular Government since none could claim the support of a simple majority of 122 in a House of 243. In that report, the Governor had also stated that 17/18, or more perhaps, LJP MLAs are moving towards the JD(U) and that various allurements have been offered to them and it was an alarming feature and the Governor was also of the opinion that it was positively affecting the Constitutional provisions and safeguards built therein and distorted the verdict of the people. 29. The contention urged by learned ASG, Shri Gopal Subramaniam was that this is the material which was placed before the President before a Proclamation was issued under Article 174(2)(b) of the Constitution. It is important to note that the writ petitioners have no case that JD(U) or any other alliance had acquired majority and that they had approached the Governor staking their claim for forming a Government. No material is placed before us to show that the JD(U) or its alliance with BJP had ever met the Governor praying that they had got the right to form a Government. The plea of the petitioners counsel is that they were about to form a Government and in order to scuttle that plan the Governor sent a report whereby the Assembly was dissolved to defeat that plan is without any basis. The Governor in his report stated that 17 or 18 members of the LJP had joined the JD(U)-BJP alliance, but no materials have been placed before us to show that they had, in fact, joined the alliance to form a Government. One letter has been produced by one of the petitioners and the same is not signed by all the MLAs and as regards some of them, some others had put their signatures. Therefore, it is incorrect to say that the Governor had taken steps to see that the Assembly was dissolved hastily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had any case that they had obtained majority support or were about to get a majority support or were in a position to form minority Government with the support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the Presidents Rule was issued under Article 356(1). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a mala fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that in Karnataka, Meghalaya and Nagaland cases, there was a democratically-elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present case. It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting for a reasonable period, the same cannot be challenged on the ground that the Governor in his report had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democratically- elected Government. If Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of power based on totally irrelevant grounds.
### Response:
0
### Explanation:
Therefore, it is incorrect to say that the Governor had taken steps to see that the Assembly was dissolved hastily to prevent the formation of a Government under the leadership of the political party JD(U). If any responsible political party had any case that they had obtained majority support or were about to get a majority support or were in a position to form minority Government with the support of some political parties and if their plea was rejected by the Governor, the position would have been totally different. No such situation had been reached in the instant case. It is also very pertinent to note that the order for dissolution of the State Assembly was passed after about three months of the proclamation imposing the Presidents Rule was issued under Article 356(1). When there was such a situation, the only possible way was to seek a fresh election and if it was done by the President, it cannot be said that it was a mala fide exercise of power and the dissolution of the Assembly was wholly on extraneous or irrelevant grounds. It is also equally important that in Karnataka, Meghalaya and Nagaland cases, there was a democratically-elected Government functioning and when there is an allegation that it had lost its majority in the Assembly, the primary duty was to seek a vote of confidence in the Assembly and test the strength on the floor of the Assembly. Such a situation was not available in the present case. It was clear that not a single political party or alliance was in a position to form the Government and when the Assembly was dissolved after waiting for a reasonable period, the same cannot be challenged on the ground that the Governor in his report had stated that some horse-trading is going on and some MLAs are being won over by allurements. These are certainly facts to be taken into consideration by the Governor. If by any foul means the Government is formed, it cannot be said to be a democratically- elected Government. If Governor has got a reasonable apprehension and reliable information such unethical means are being adopted by the political parties to get majority, they are certainly matters to be brought to the notice of the President and at least they are not irrelevant matters. Governor is not the decision-making authority. His report would be scrutinized by the Council of Ministers and a final decision is taken by the President under Article 174 of the Constitution. Therefore, it cannot be said that the decision to dissolve the Bihar State Legislative Assembly, is mala fide exercise of power based on totally irrelevant groundsArticle 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. This Court never had the occasion to consider the question of legality of dissolution of a Legislative Assembly even before its first meeting contemplated under Article 172 of the Constitution. It has been contended on behalf of the petitioners by Mr. Narsimha and Mr. Viplav Sharma,, that a Legislative Assembly can be dissolved under Article 174(2)(b) only after its first meeting is held as postulated by Article 172 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence. What does not exist, cannot be dissolved, is the submission. In this regard, the question to be considered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to form the Government.
|
Andhra Sugars Limited & Another Vs. State of Andhra Pradesh & Others | tax is levied on purchases of all cane required for use, consumption or sale in a factory. There is no discrimination between cane grown in the State and cane imported from outside. As a matter of fact, an under the Act the factory can normally buy only cane grown in the factory zone. A non-discriminatory tax on goods does not offend Article 301 unless it directly impedes the free movement or transport of the goods.18. In Atiabari Tea Co. Ltd. v. State of Assam, 1961 (1) SCR 809 at pp. 860-861 : (AIR 1961 SC 232 at p. 254) Gajendragadkar, J. speaking for the majority said :"We are, therefore satisfied that in determining the limits of the width and amplitude of the freedom guaranteed by Article 301 a rational and workable test to apply would be: Does the impugned restriction operate directly or immediately on trade or its movement? It is the free movement of the transport of goods from one part of the country to the other that is intended to be saved, and if any Act imposes any direct restrictions on the very movement of such goods it attracts the provisions of Article 301, and its validity can be sustained only if it satisfies the requirements of Article 302 or Article 304 Part XIII."This interpretation of Article 301 was not dissented from in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, 1963 (1 SCR 491 at p. 533 : (AIR 1962 SC 1406 at p. 1424). Normally, a tax on sale of goods does not directly impede the free movement or transport of goods. Section 21 is no exception. It does not impede the free movement or transport of goods and is not violative of Article 301.19. Mr. Setalvad next submitted that S. 21 offended Article 14 of the Constitution in several ways. It was argued that S. 21 read with S. 2 (e) discriminated between producers of sugar using the vacuum pan and open pan processes. Under S. 21, as it stood before its amendment by Act No. 4 of l967, tax was levied on purchases of cane by factories producing sugar by means of vacuum pans but purchases of cane by khandasari units producing khandasari sugar by the open pan process were entirely exempt from the tax. Even the amended S. 21 levies a lower rate of tax on the purchases of cane by khandasari units. It was also argued that there was discrimination in favour of producers of jaggery by exempting their purchases of cane from payment of the tax. But the affidavits filed on behalf of the respondents show that factories producing sugar by means of vacuum pans and khandasari units producing sugar by the open pan processes form distinct and separate classes. The industry using the vacuum pan process is in existence since 1932-33. No tax was levied on this industry until 1949. In 1949 when the industry became well established, tax was levied on it for the first time by S. 14 of the Madras Sugar Factories Control Act, 1949. The khandasari units carry on a small scale industry. They are of recent origin in the State of Andhra Pradesh. Until 1967, this industry was exempt from the levy. When the industry came to be somewhat established by l967 a smaller rate tax was levied on it. In 1965 - 66, factories adopting the vacuum pan process bought over 32 lakh tonnes of cane while the khandasari sugar units in the State bought about.2.70 lakh tonnes of cane. The manufacture of jaggery has no resemblance to the manufacture of sugar by the vacuum pan or the open pan system. It is a cottage industry wherein individual canegrowers process their cane into jaggery and market it as a finished product.Having regard to the affidavits, we are satisfied that the differential treatment of the factories producing sugar by means of vacuum pans, khandasari units producing sugar by the open pan process and cane growers using cane for the manufacture of jaggery is reasonable and has a rational relation to the object of taxation. There are marked differences between the three classes of users of cane and their capacity to pay the tax. The legislature could reasonably treat the three sets of users of cane differently for purposes of levy.20. It was next argued that the power under S. 21 (3) to exempt new factories and factories which in the opinion of the Government have substantially expanded was discriminatory and violative of Article 14. We are unable to accept this contention.The establishment of new factories and the expansion of the existing factories need encouragement and incentives. The exemption in favour of new and expanding factories is based on legitimate legislative policy. The question whether the exemption should be granted to any factory, and if so, for what period and the question whether any factory has substantially expanded and if so, the extent of such expansion have to be decided with reference to the facts of each individual case. Obviously, it is not possible for the Sate legislature to examine the merits of individual cases and the function was properly delegated to the State Government, The legislature was not obliged to prescribe a more rigid standard for the guidance of the Government. We hold that S. 21 does not violate Article 14.21. The petitioner in Writ Petition No. 101 of 1967 raised the contention that it was a new factory and that the Government of Andhra Pradesh should have exempted it from payment of tax under S. 21 (3) (a). The contention was controverted by the respondents. The affidavits do not give sufficient materials on the point, nor is there any prayer in the petition for the issue of a mandamus directing the State Government to grant the exemption. In the circumstances, we do not think it fit to express any opinion on the matter. It will be open to the petitioner in Writ Petition No. 101 of 1967 to raise this contention in other proceedings.22. | 0[ds]In the light of this decision, the expression "sale of goods" in Entry 54, List II, Schedule VII of the Constitution must be given the same interpretation. On a parity of reasoning, to constitute a "purchase of goods" within this Entry, there must be an agreement for purchase of goods and the passing of property therein pursuant to such anpromise and every set of promises forming the consideration for each other is an agreement. There is mutual assent to the proposal when the proposal is accepted and in the result an agreement is formed. Under Section 10 all agreements are contracts if they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object and are not by the Act expressly declared to be void. Section 13 defines consent. Two or more persons are said to consent when they agree upon the same thing in the same sense. Section 14 defines free consent. Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake as defined in Sections 15 to 22.Now, under Act No. 45 of 1981 and the Rules framed under it, the canegrower in the factory zone is free to make or not to make an offer of sale of cane to the occupier of the factory. But if he makes an offer, the occupier of the factory is bound to accept it. The resulting agreement is recorded in writing and is signed by the parties. The consent of the occupier of the factory to the agreement is not caused by coercion, undue influence, fraud, misrepresentation or mistake. His consent is free as defined in Section 14 of the Indian Contract Act though he is obliged by law to enter into the agreement. The compulsion of law is not coercion as defined in Sec. 15 of the Act. In spite of the compulsion, the agreement is neither void nor voidable. In the eye of the law, the agreement is freely made. The parties are competent to contract. The agreement is made for a lawful consideration and with a lawful object and is not void under any provisions of law. The agreements are enforceable by law and are contracts of sale of sugarcane as defined in Section 4 of the Indian Sale of Goods Act. The purchases of sugarcane under the agreement can be taxed by the State Legislature under Entry 54, Listdecision should not be treated as an authority for the proposition that there can be no contract of sale under compulsion of a statute. It depends upon the facts of each case and the terms of the particular statute regulating the dealings whether the parties have entered into a contract of sale of goods. Under Act No. 45 of 1961, a canegrower makes an offer to the occupier of the factory directly and the latter accepts the offer.The parties then make and sign an agreement in writing. There is thus a direct privity of contract between the parties. The contract is a contract of sale and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute. The State Legislature is competent to tax purchases of canes made under such athat Entry the State legislature is not bound to levy a tax on all purchases of cane. It may levy a tax on purchases of cane required for use, consumption or sale in a factory. The legislature is competent to tax and also to exempt from payment of tax sales or purchases of goods required for specific purposes. Other instances of special treatment of goods required for particular purposes may be given. Section 6 and Schedule I, Item 23 of the Bombay Sales Tax Act, 1946 levy tax on fabrics and articles for personal wear. Section 2 (j) (a) (ii) of the C. P. and Berar Sales Tax Act, 1947 exempts sales of goods intended for use by a registered dealer as raw materials for the manufacture ofDecember 13, 1960, this Court in Diamond Sugar Mills Ltd. v. State of Uttar Pradesh, 1961-3 SCR 242 = (AIR 1961 SC 652 ) struck down a similar provision in the U. P. Sugarcane Cess Act, 1956 on the ground that the State legislature was not competent to enact it under Entry 52, List II as the premises of a factory was not a local area within the meaning of the Entry. Having regard to this division, paragraph 21 of the Bill was amended and Section 21 in its present form was passed by the State Legislature. The Act was published in the Gazette on December 30, l961. Mr. Chatterjee submitted that in this context the levy under Section 21 was really a levy on the entry of goods into a factory for consumption, use or sale therein. We are unable to accept this contention.As the proposed tax on the entry of goods into a factory was unconstitutional, paragraph 21 of the original Bill was amended and Section 21 in its present form was enacted. The tax under Section 21 is essentially a tax on purchase of goods. The taxable event is the purchase of cane for use, consumption or sale in a factory and not the entry of cane into a factory. As the tax is not on the entry of the cane into a factory, it is not payable on cane cultivated by the factory and entering the factorycase decides that a sales tax which discriminates against goods imported from other States may impede the free flow of trade and is then invalid unless protected by Article 304 (a).But the tax levied under Section 21 does not discriminate against any imported cane. Under Section 21, the same rate of tax is levied on purchases of all cane required for use, consumption or sale in a factory. There is no discrimination between cane grown in the State and cane imported from outside. As a matter of fact, an under the Act the factory can normally buy only cane grown in the factory zone. A non-discriminatory tax on goods does not offend Articleunless it directly impedes the free movement or transport of theinterpretation of Article 301 was not dissented from in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, 1963 (1 SCR 491 at p. 533 : (AIR 1962 SC 1406 at p. 1424). Normally, a tax on sale of goods does not directly impede the free movement or transport of goods. Section 21 is no exception. It does not impede the free movement or transport of goods and is not violative of Articlemanufacture of jaggery has no resemblance to the manufacture of sugar by the vacuum pan or the open pan system. It is a cottage industry wherein individual canegrowers process their cane into jaggery and market it as a finished product.Having regard to the affidavits, we are satisfied that the differential treatment of the factories producing sugar by means of vacuum pans, khandasari units producing sugar by the open pan process and cane growers using cane for the manufacture of jaggery is reasonable and has a rational relation to the object of taxation. There are marked differences between the three classes of users of cane and their capacity to pay the tax. The legislature could reasonably treat the three sets of users of cane differently for purposes of levy.We are unable to accept this contention.The establishment of new factories and the expansion of the existing factories need encouragement and incentives. The exemption in favour of new and expanding factories is based on legitimate legislative policy. The question whether the exemption should be granted to any factory, and if so, for what period and the question whether any factory has substantially expanded and if so, the extent of such expansion have to be decided with reference to the facts of each individual case. Obviously, it is not possible for the Sate legislature to examine the merits of individual cases and the function was properly delegated to the State Government, The legislature was not obliged to prescribe a more rigid standard for the guidance of the Government. We hold that S. 21 does not violate Article 14.The petitioner in Writ Petition No. 101 of 1967 raised the contention that it was a new factory and that the Government of Andhra Pradesh should have exempted it from payment of tax under S. 21 (3) (a). The contention was controverted by the respondents. The affidavits do not give sufficient materials on the point, nor is there any prayer in the petition for the issue of a mandamus directing the State Government to grant the exemption. In the circumstances, we do not think it fit to express any opinion on the matter. It will be open to the petitioner in Writ Petition No. 101 of 1967 to raise this contention in other proceedings. | 0 | 7,162 | 1,617 | ### 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:
tax is levied on purchases of all cane required for use, consumption or sale in a factory. There is no discrimination between cane grown in the State and cane imported from outside. As a matter of fact, an under the Act the factory can normally buy only cane grown in the factory zone. A non-discriminatory tax on goods does not offend Article 301 unless it directly impedes the free movement or transport of the goods.18. In Atiabari Tea Co. Ltd. v. State of Assam, 1961 (1) SCR 809 at pp. 860-861 : (AIR 1961 SC 232 at p. 254) Gajendragadkar, J. speaking for the majority said :"We are, therefore satisfied that in determining the limits of the width and amplitude of the freedom guaranteed by Article 301 a rational and workable test to apply would be: Does the impugned restriction operate directly or immediately on trade or its movement? It is the free movement of the transport of goods from one part of the country to the other that is intended to be saved, and if any Act imposes any direct restrictions on the very movement of such goods it attracts the provisions of Article 301, and its validity can be sustained only if it satisfies the requirements of Article 302 or Article 304 Part XIII."This interpretation of Article 301 was not dissented from in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, 1963 (1 SCR 491 at p. 533 : (AIR 1962 SC 1406 at p. 1424). Normally, a tax on sale of goods does not directly impede the free movement or transport of goods. Section 21 is no exception. It does not impede the free movement or transport of goods and is not violative of Article 301.19. Mr. Setalvad next submitted that S. 21 offended Article 14 of the Constitution in several ways. It was argued that S. 21 read with S. 2 (e) discriminated between producers of sugar using the vacuum pan and open pan processes. Under S. 21, as it stood before its amendment by Act No. 4 of l967, tax was levied on purchases of cane by factories producing sugar by means of vacuum pans but purchases of cane by khandasari units producing khandasari sugar by the open pan process were entirely exempt from the tax. Even the amended S. 21 levies a lower rate of tax on the purchases of cane by khandasari units. It was also argued that there was discrimination in favour of producers of jaggery by exempting their purchases of cane from payment of the tax. But the affidavits filed on behalf of the respondents show that factories producing sugar by means of vacuum pans and khandasari units producing sugar by the open pan processes form distinct and separate classes. The industry using the vacuum pan process is in existence since 1932-33. No tax was levied on this industry until 1949. In 1949 when the industry became well established, tax was levied on it for the first time by S. 14 of the Madras Sugar Factories Control Act, 1949. The khandasari units carry on a small scale industry. They are of recent origin in the State of Andhra Pradesh. Until 1967, this industry was exempt from the levy. When the industry came to be somewhat established by l967 a smaller rate tax was levied on it. In 1965 - 66, factories adopting the vacuum pan process bought over 32 lakh tonnes of cane while the khandasari sugar units in the State bought about.2.70 lakh tonnes of cane. The manufacture of jaggery has no resemblance to the manufacture of sugar by the vacuum pan or the open pan system. It is a cottage industry wherein individual canegrowers process their cane into jaggery and market it as a finished product.Having regard to the affidavits, we are satisfied that the differential treatment of the factories producing sugar by means of vacuum pans, khandasari units producing sugar by the open pan process and cane growers using cane for the manufacture of jaggery is reasonable and has a rational relation to the object of taxation. There are marked differences between the three classes of users of cane and their capacity to pay the tax. The legislature could reasonably treat the three sets of users of cane differently for purposes of levy.20. It was next argued that the power under S. 21 (3) to exempt new factories and factories which in the opinion of the Government have substantially expanded was discriminatory and violative of Article 14. We are unable to accept this contention.The establishment of new factories and the expansion of the existing factories need encouragement and incentives. The exemption in favour of new and expanding factories is based on legitimate legislative policy. The question whether the exemption should be granted to any factory, and if so, for what period and the question whether any factory has substantially expanded and if so, the extent of such expansion have to be decided with reference to the facts of each individual case. Obviously, it is not possible for the Sate legislature to examine the merits of individual cases and the function was properly delegated to the State Government, The legislature was not obliged to prescribe a more rigid standard for the guidance of the Government. We hold that S. 21 does not violate Article 14.21. The petitioner in Writ Petition No. 101 of 1967 raised the contention that it was a new factory and that the Government of Andhra Pradesh should have exempted it from payment of tax under S. 21 (3) (a). The contention was controverted by the respondents. The affidavits do not give sufficient materials on the point, nor is there any prayer in the petition for the issue of a mandamus directing the State Government to grant the exemption. In the circumstances, we do not think it fit to express any opinion on the matter. It will be open to the petitioner in Writ Petition No. 101 of 1967 to raise this contention in other proceedings.22.
### Response:
0
### Explanation:
sign an agreement in writing. There is thus a direct privity of contract between the parties. The contract is a contract of sale and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute. The State Legislature is competent to tax purchases of canes made under such athat Entry the State legislature is not bound to levy a tax on all purchases of cane. It may levy a tax on purchases of cane required for use, consumption or sale in a factory. The legislature is competent to tax and also to exempt from payment of tax sales or purchases of goods required for specific purposes. Other instances of special treatment of goods required for particular purposes may be given. Section 6 and Schedule I, Item 23 of the Bombay Sales Tax Act, 1946 levy tax on fabrics and articles for personal wear. Section 2 (j) (a) (ii) of the C. P. and Berar Sales Tax Act, 1947 exempts sales of goods intended for use by a registered dealer as raw materials for the manufacture ofDecember 13, 1960, this Court in Diamond Sugar Mills Ltd. v. State of Uttar Pradesh, 1961-3 SCR 242 = (AIR 1961 SC 652 ) struck down a similar provision in the U. P. Sugarcane Cess Act, 1956 on the ground that the State legislature was not competent to enact it under Entry 52, List II as the premises of a factory was not a local area within the meaning of the Entry. Having regard to this division, paragraph 21 of the Bill was amended and Section 21 in its present form was passed by the State Legislature. The Act was published in the Gazette on December 30, l961. Mr. Chatterjee submitted that in this context the levy under Section 21 was really a levy on the entry of goods into a factory for consumption, use or sale therein. We are unable to accept this contention.As the proposed tax on the entry of goods into a factory was unconstitutional, paragraph 21 of the original Bill was amended and Section 21 in its present form was enacted. The tax under Section 21 is essentially a tax on purchase of goods. The taxable event is the purchase of cane for use, consumption or sale in a factory and not the entry of cane into a factory. As the tax is not on the entry of the cane into a factory, it is not payable on cane cultivated by the factory and entering the factorycase decides that a sales tax which discriminates against goods imported from other States may impede the free flow of trade and is then invalid unless protected by Article 304 (a).But the tax levied under Section 21 does not discriminate against any imported cane. Under Section 21, the same rate of tax is levied on purchases of all cane required for use, consumption or sale in a factory. There is no discrimination between cane grown in the State and cane imported from outside. As a matter of fact, an under the Act the factory can normally buy only cane grown in the factory zone. A non-discriminatory tax on goods does not offend Articleunless it directly impedes the free movement or transport of theinterpretation of Article 301 was not dissented from in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, 1963 (1 SCR 491 at p. 533 : (AIR 1962 SC 1406 at p. 1424). Normally, a tax on sale of goods does not directly impede the free movement or transport of goods. Section 21 is no exception. It does not impede the free movement or transport of goods and is not violative of Articlemanufacture of jaggery has no resemblance to the manufacture of sugar by the vacuum pan or the open pan system. It is a cottage industry wherein individual canegrowers process their cane into jaggery and market it as a finished product.Having regard to the affidavits, we are satisfied that the differential treatment of the factories producing sugar by means of vacuum pans, khandasari units producing sugar by the open pan process and cane growers using cane for the manufacture of jaggery is reasonable and has a rational relation to the object of taxation. There are marked differences between the three classes of users of cane and their capacity to pay the tax. The legislature could reasonably treat the three sets of users of cane differently for purposes of levy.We are unable to accept this contention.The establishment of new factories and the expansion of the existing factories need encouragement and incentives. The exemption in favour of new and expanding factories is based on legitimate legislative policy. The question whether the exemption should be granted to any factory, and if so, for what period and the question whether any factory has substantially expanded and if so, the extent of such expansion have to be decided with reference to the facts of each individual case. Obviously, it is not possible for the Sate legislature to examine the merits of individual cases and the function was properly delegated to the State Government, The legislature was not obliged to prescribe a more rigid standard for the guidance of the Government. We hold that S. 21 does not violate Article 14.The petitioner in Writ Petition No. 101 of 1967 raised the contention that it was a new factory and that the Government of Andhra Pradesh should have exempted it from payment of tax under S. 21 (3) (a). The contention was controverted by the respondents. The affidavits do not give sufficient materials on the point, nor is there any prayer in the petition for the issue of a mandamus directing the State Government to grant the exemption. In the circumstances, we do not think it fit to express any opinion on the matter. It will be open to the petitioner in Writ Petition No. 101 of 1967 to raise this contention in other proceedings.
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Messrs Mc. Dowell And Company Limited Vs. Commercial Tax Officer | matter. He has invited our attention to the second part of the definition of the word turnover as set out above and has strenuously urged that as in addition to the price of the liquor set out in the bills of sale as consideration for the sales, other sums charged by the dealer at the time of or before the delivery of the goods also form part of turnover, and according to the well established canon of construction, a taxing statute has to be interpreted reasonably so that there is no evasion of the tax, the phrase any sums charged by the dealer occurring in the aforesaid definition of the word turnover must be construed as meaning any item of expense including the excise duty or the countervailing duty to which buyers were put by the manufacturers of the liquors or the owner of the bonded warehouse. We find ourselves unable to accept the construction sought to be put by him as it is opposed to the plain meaning of the said phrase. It will be advantageous here to refer to the decisions of this Court in A. V. Fernandez vs. The State of Kerala where Bhagwati, J. speaking for the Bench after quoting the observations made by Lord Russell of Killowen in Inland Revenue Commissioners vs. Duke of Westminster which were approved by the Privy Council in the Bank of Chettinad vs. Income-Tax Commissioner observed :"It is no doubt true that in construing fiscal statutes and determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statutes, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities. 13. Bearing in mind the principle set out in A. V. Fernandezs case the phrase any sums charged by the dealer has to be understood in its ordinary popular sense. So construing the phrase it means "what is demanded, collected or received by the dealer". In the instant cases, the excise duty or the countervailing duty has, as already stated, not been charged or received by the dealers but has been charged by the excise authorities and deposited directly by the buyers of the liquor in the State exchequer. It is, therefore, difficult to hold that excise duty or countervailing duty was charged by the appellants. 14. The reason for inclusion of tax or a duty in the turnover was explained in two decisions of this Court bearing the same cause title viz. Messrs George Oakes (Private) Ltd. vs. The State of Madras & Ors. In the first of these cases, it was observed :-"Under the definition of turnover the aggregate amount for which goods are brought or sold is taxable. This aggregate amount includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, he may turn it over again and again till he finally hands it to Government."In the other decision, Hidayatullah, J. (as he then was) said : "In laws dealing with sales tax, turnover has, in England and America also, been held to include the tax. The reason for such inclusion is stated to be that the dealer who realises the tax does not hand it over forthwith to Government but keeps it with him, and turns it over in his business before he parts with it. Thus, the tax becomes, for the time being, a part of the circulating capital of the tradesman, and is turned over in his business. Again, it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum. Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because "turnover" means the amount of money which is turned over in the business." 15. In the instant cases, the excise and countervailing duties did not go into the common tills of the appellants and did not become a part of their circulating capital. We are, therefore, of the view that the Sales Tax authorities were not competent to include in the turnovers of the appellants the excise duty and the countervailing duty which was not charged by them but was charged by and paid directly to the excise authorities by the buyers of the liquors as stated above. 16. The Full Bench decision of the High Court of Andhra Pradesh in The Government of Andhra (now Andhra Pradesh) vs. East India Commercial Co. Ltd. relied upon by the Revenue is clearly distinguishable. In that case, it was the actual collection of certain sums as dharmam or charity by the dealer from the purchasers on the occasion of the sales that made the learned Judges to hold that they constitute part of the turnover. In Messrs George Oakes (Private) Ltd.s case also, the tax in question was collected by the registered dealer. 17. We have, therefore, no hesitation in holding that the excise duty and the countervailing duty paid directly by the buyers of the Indian liquors as stated above did not constitute a part of the turnovers of the appellants. 18. | 1[ds]9. Having seen that a provision can be inserted in the excise law for collection of the excise duty at a stage subsequent to the manufacture or production of the excisable article, we shall now proceed to examine the main contentions raised by counsel for the appellants. We have first to see as to how far the contention of counsel for the appellants that apart from a manufacturer of Indian liquors and an owner of a bonded warehouse who in our opinion cannot but be regarded as primarily responsible for payment of excise duty and countervailing duty respectively in view of Sections 21, 28 and 65 of the Andhra Pradesh Excise Act, 1968, and rules 3, 4, 5, 6, 67 and 76 of the Andhra Pradesh Distillery Rules, 1970, and condition No. 9 of the Distillery Licence granted under Rule 5 of these Rules : rules 5 and 10 of the Andhra Pradesh Indian Liquor (Storage in bond) Rules, 1969, conditions Nos. 7 and 10 of licence granted in form B.W. 1 under rule 5 (2), the phraseology of the application for receipt of liquor into the bonded warehouse prescribed by Rule 9(2) and the terms of the counterpart agreement required to be executed by a licence of an Indian liquor bonded warehouse under Rules 3 (2) and 5 (2) of these Rules the buyers of the said liquors are also liable under the law for payment of the aforesaid duties can be sustained. For a proper determination of this question, it is necessary to recall the provisions of the Andhra Pradesh Distillery Rules, 1970 which have been set out in the earlier part of this judgment. The said rules particularly rules 79, 81, 82, 83 and 84 lend a good deal of support, in our opinion, to the contention of counsel for the appellants and make every intending buyer of the Indian liquor liable for payment of the excise duty before obtaining the distillery pass and lifting the quantity mentioned therein from the distillery. Accordingly agreeing with counsel for the appellants we hold that intending purchasers of the Indian liquors who seek to obtain distillery passes are also legally responsible for payment of the excise duty which is collected from them by the authorities of the Excise Department10. The position in regard to the countervailing duty is not, however, clear though rule 10 (1) of the Andhra Pradesh Indian Liquor (Storage in bond) Rules 1969 and rules 5 (2) and 17 of the Andhra Pradesh Foreign and Indian Liquor Rules, 1970 enable the intending buyers of Indian liquors to remove the same from a bonded warehouse on payment of the said duty, to the excise authorities11. This is not, however, sufficient to dispose of the matter.The real and pivotal question that requires to be determined is whether the excise duty or the countervailing duty, as the case may be, paid directly to the excise authorities of the State or deposited directly in the State exchequer in respect of the Indian liquor by the buyers thereof before removing it from any of the aforesaid distilleries or the warehouse can be said to form part of the taxable turnover of the appellants, as according to Section 5 of the Act which is the charging section, sales tax is required to be paid by the appellants on their turnover of the year.It will be useful at this stage to advert to the definitions of the words turnover and sale as given in clauses (a) and (n) of sub-section (1) of Section 2 of the Act12. In the instant case, it is not disputed that excise duty or countervailing duty paid directly to the excise authorities by the purchasers of Indian liquors before removal thereof from the distilleries or the bonded warehouse on the strength of the distillery and warehouse passes was not included in the bills of sale as the consideration for the sales, but that alone, according to the Attorney General, is not determinative of the matter. He has invited our attention to the second part of the definition of the word turnover as set out above and has strenuously urged that as in addition to the price of the liquor set out in the bills of sale as consideration for the sales, other sums charged by the dealer at the time of or before the delivery of the goods also form part of turnover, and according to the well established canon of construction, a taxing statute has to be interpreted reasonably so that there is no evasion of the tax, the phrase any sums charged by the dealer occurring in the aforesaid definition of the word turnover must be construed as meaning any item of expense including the excise duty or the countervailing duty to which buyers were put by the manufacturers of the liquors or the owner of the bonded warehouse. We find ourselves unable to accept the construction sought to be put by him as it is opposed to the plain meaning of the said phrase. It will be advantageous here to refer to the decisions of this Court in A. V. Fernandez vs. The State of Kerala where Bhagwati, J. speaking for the Bench after quoting the observations made by Lord Russell of Killowen in Inland Revenue Commissioners vs. Duke of Westminster which were approved by the Privy Council in the Bank of Chettinad vs. Income-Tax Commissioner observed :"It is no doubt true that in construing fiscal statutes and determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statutes, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities13. Bearing in mind the principle set out in A. V. Fernandezs case the phrase any sums charged by the dealer has to be understood in its ordinary popular sense. So construing the phrase it means "what is demanded, collected or received by the dealer". In the instant cases, the excise duty or the countervailing duty has, as already stated, not been charged or received by the dealers but has been charged by the excise authorities and deposited directly by the buyers of the liquor in the State exchequer. It is, therefore, difficult to hold that excise duty or countervailing duty was charged by the appellants15. In the instant cases, the excise and countervailing duties did not go into the common tills of the appellants and did not become a part of their circulating capital. We are, therefore, of the view that the Sales Tax authorities were not competent to include in the turnovers of the appellants the excise duty and the countervailing duty which was not charged by them but was charged by and paid directly to the excise authorities by the buyers of the liquors as stated above16. The Full Bench decision of the High Court of Andhra Pradesh in The Government of Andhra (now Andhra Pradesh) vs. East India Commercial Co. Ltd. relied upon by the Revenue is clearly distinguishable. In that case, it was the actual collection of certain sums as dharmam or charity by the dealer from the purchasers on the occasion of the sales that made the learned Judges to hold that they constitute part of the turnover. In Messrs George Oakes (Private) Ltd.s case also, the tax in question was collected by the registered dealer17. We have, therefore, no hesitation in holding that the excise duty and the countervailing duty paid directly by the buyers of the Indian liquors as stated above did not constitute a part of the turnovers of the appellants. | 1 | 5,103 | 1,503 | ### Instruction:
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matter. He has invited our attention to the second part of the definition of the word turnover as set out above and has strenuously urged that as in addition to the price of the liquor set out in the bills of sale as consideration for the sales, other sums charged by the dealer at the time of or before the delivery of the goods also form part of turnover, and according to the well established canon of construction, a taxing statute has to be interpreted reasonably so that there is no evasion of the tax, the phrase any sums charged by the dealer occurring in the aforesaid definition of the word turnover must be construed as meaning any item of expense including the excise duty or the countervailing duty to which buyers were put by the manufacturers of the liquors or the owner of the bonded warehouse. We find ourselves unable to accept the construction sought to be put by him as it is opposed to the plain meaning of the said phrase. It will be advantageous here to refer to the decisions of this Court in A. V. Fernandez vs. The State of Kerala where Bhagwati, J. speaking for the Bench after quoting the observations made by Lord Russell of Killowen in Inland Revenue Commissioners vs. Duke of Westminster which were approved by the Privy Council in the Bank of Chettinad vs. Income-Tax Commissioner observed :"It is no doubt true that in construing fiscal statutes and determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statutes, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities. 13. Bearing in mind the principle set out in A. V. Fernandezs case the phrase any sums charged by the dealer has to be understood in its ordinary popular sense. So construing the phrase it means "what is demanded, collected or received by the dealer". In the instant cases, the excise duty or the countervailing duty has, as already stated, not been charged or received by the dealers but has been charged by the excise authorities and deposited directly by the buyers of the liquor in the State exchequer. It is, therefore, difficult to hold that excise duty or countervailing duty was charged by the appellants. 14. The reason for inclusion of tax or a duty in the turnover was explained in two decisions of this Court bearing the same cause title viz. Messrs George Oakes (Private) Ltd. vs. The State of Madras & Ors. In the first of these cases, it was observed :-"Under the definition of turnover the aggregate amount for which goods are brought or sold is taxable. This aggregate amount includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, he may turn it over again and again till he finally hands it to Government."In the other decision, Hidayatullah, J. (as he then was) said : "In laws dealing with sales tax, turnover has, in England and America also, been held to include the tax. The reason for such inclusion is stated to be that the dealer who realises the tax does not hand it over forthwith to Government but keeps it with him, and turns it over in his business before he parts with it. Thus, the tax becomes, for the time being, a part of the circulating capital of the tradesman, and is turned over in his business. Again, it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum. Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because "turnover" means the amount of money which is turned over in the business." 15. In the instant cases, the excise and countervailing duties did not go into the common tills of the appellants and did not become a part of their circulating capital. We are, therefore, of the view that the Sales Tax authorities were not competent to include in the turnovers of the appellants the excise duty and the countervailing duty which was not charged by them but was charged by and paid directly to the excise authorities by the buyers of the liquors as stated above. 16. The Full Bench decision of the High Court of Andhra Pradesh in The Government of Andhra (now Andhra Pradesh) vs. East India Commercial Co. Ltd. relied upon by the Revenue is clearly distinguishable. In that case, it was the actual collection of certain sums as dharmam or charity by the dealer from the purchasers on the occasion of the sales that made the learned Judges to hold that they constitute part of the turnover. In Messrs George Oakes (Private) Ltd.s case also, the tax in question was collected by the registered dealer. 17. We have, therefore, no hesitation in holding that the excise duty and the countervailing duty paid directly by the buyers of the Indian liquors as stated above did not constitute a part of the turnovers of the appellants. 18.
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The position in regard to the countervailing duty is not, however, clear though rule 10 (1) of the Andhra Pradesh Indian Liquor (Storage in bond) Rules 1969 and rules 5 (2) and 17 of the Andhra Pradesh Foreign and Indian Liquor Rules, 1970 enable the intending buyers of Indian liquors to remove the same from a bonded warehouse on payment of the said duty, to the excise authorities11. This is not, however, sufficient to dispose of the matter.The real and pivotal question that requires to be determined is whether the excise duty or the countervailing duty, as the case may be, paid directly to the excise authorities of the State or deposited directly in the State exchequer in respect of the Indian liquor by the buyers thereof before removing it from any of the aforesaid distilleries or the warehouse can be said to form part of the taxable turnover of the appellants, as according to Section 5 of the Act which is the charging section, sales tax is required to be paid by the appellants on their turnover of the year.It will be useful at this stage to advert to the definitions of the words turnover and sale as given in clauses (a) and (n) of sub-section (1) of Section 2 of the Act12. In the instant case, it is not disputed that excise duty or countervailing duty paid directly to the excise authorities by the purchasers of Indian liquors before removal thereof from the distilleries or the bonded warehouse on the strength of the distillery and warehouse passes was not included in the bills of sale as the consideration for the sales, but that alone, according to the Attorney General, is not determinative of the matter. He has invited our attention to the second part of the definition of the word turnover as set out above and has strenuously urged that as in addition to the price of the liquor set out in the bills of sale as consideration for the sales, other sums charged by the dealer at the time of or before the delivery of the goods also form part of turnover, and according to the well established canon of construction, a taxing statute has to be interpreted reasonably so that there is no evasion of the tax, the phrase any sums charged by the dealer occurring in the aforesaid definition of the word turnover must be construed as meaning any item of expense including the excise duty or the countervailing duty to which buyers were put by the manufacturers of the liquors or the owner of the bonded warehouse. We find ourselves unable to accept the construction sought to be put by him as it is opposed to the plain meaning of the said phrase. It will be advantageous here to refer to the decisions of this Court in A. V. Fernandez vs. The State of Kerala where Bhagwati, J. speaking for the Bench after quoting the observations made by Lord Russell of Killowen in Inland Revenue Commissioners vs. Duke of Westminster which were approved by the Privy Council in the Bank of Chettinad vs. Income-Tax Commissioner observed :"It is no doubt true that in construing fiscal statutes and determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statutes, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities13. Bearing in mind the principle set out in A. V. Fernandezs case the phrase any sums charged by the dealer has to be understood in its ordinary popular sense. So construing the phrase it means "what is demanded, collected or received by the dealer". In the instant cases, the excise duty or the countervailing duty has, as already stated, not been charged or received by the dealers but has been charged by the excise authorities and deposited directly by the buyers of the liquor in the State exchequer. It is, therefore, difficult to hold that excise duty or countervailing duty was charged by the appellants15. In the instant cases, the excise and countervailing duties did not go into the common tills of the appellants and did not become a part of their circulating capital. We are, therefore, of the view that the Sales Tax authorities were not competent to include in the turnovers of the appellants the excise duty and the countervailing duty which was not charged by them but was charged by and paid directly to the excise authorities by the buyers of the liquors as stated above16. The Full Bench decision of the High Court of Andhra Pradesh in The Government of Andhra (now Andhra Pradesh) vs. East India Commercial Co. Ltd. relied upon by the Revenue is clearly distinguishable. In that case, it was the actual collection of certain sums as dharmam or charity by the dealer from the purchasers on the occasion of the sales that made the learned Judges to hold that they constitute part of the turnover. In Messrs George Oakes (Private) Ltd.s case also, the tax in question was collected by the registered dealer17. We have, therefore, no hesitation in holding that the excise duty and the countervailing duty paid directly by the buyers of the Indian liquors as stated above did not constitute a part of the turnovers of the appellants.
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Babulal Bhuramal & Another Vs. Nandram Shivram & Others | ?If it is possible to avoid a conflict between the provisions of S. 28 and S. 29A on a proper construction thereof, then it is the duty of a Court to so construe them that they are in harmony with each other. It is possible to conceive of cases where in a suit under S. 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent Court to establish his title to such premises by virtue of the provisions of S. 29A. On the other hand, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the Courts specified in S. 28 and no other. That is to say, a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a Court specified in S. 28 and a title de hors the Act may be determined in any other Court of competent jurisdiction.The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions. If defined "landlord" and "tenant" to have a meaning wider in scope and concept than those words have under the ordinary law. Any one who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it. The Act specially provided that the Court specified in S. 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other Court from having such jurisdiction. It is difficult to accept the suggestion that the legislature intended, after setting up special Courts under S. 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a Court not specified in S. 28. By enacting S. 29A the legislature clearly intended that no finality should be attached to the decision of a Court trying a suit under S. 28 on a question of title de hors the Act. The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the Courts specified in S. 28 and no other.10. Some reference was made to S. 49 of the Presidency Small Cause Courts Act, 1882 which provides that recovery of possession of any immovable property under Ch. VII of the Act shall be no bar to the institution of a suit in the High Court for trying the title thereto.The provisions of this section render no assistance in the matter of interpretation of S. 28 or S. 29A.Chapter VII of the Presidency Small Cause Courts Act deals with the recovery of possession of immovable property from a person including a tenant. The provision of S. 41 onwards prescribe a summary mode for recovery of possession which could even be stayed by the Small Cause Court if the provisions of S. 47 were complied with. Indeed, under S. 41 no claims or rights are determined. In such a situation it is clearly understandable that nothing contained in Ch. VII could be a bar to the institution of a suit in the High Court for trying the title to the immovable property. In a suit under S. 28 the Court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of its provisions. Section 29 provides for an appeal against the decision of the Court. Under Ch. VII of the Presidency Small Cause Courts Act there is no provision for an appeal against an order directing recovery of possession.11. In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City Civil Court.12. On behalf of the appellants a request was made that if the appeal should fail, they may be given some time to vacate the premises. The High Court in dismissing the appeal had directed "Decree not to be executed for a fortnight." In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date. On that day the application for stay was allowed on two conditions being fulfilled and on the non-compliance of which the stay order would stand vacated. On February 19, 1957 another order was passed by this Court when its attention was drawn to the non-compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants. The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in the event of the appeal being dismissed or decided against them. Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough, we are unable to accede to the request made by the appellants. | 0[ds]No doubt S. 29A expressly provides that nothing contained in S. 28 or S. 29 shall be deemed to bar a party to a suit, proceeding or appeal, mentioned therein , in which a question of title to premises arises and is determined, from suing in a competent Court to establish his title to such premises. Even if it be assumed that a claim to a right to tenancy of premises is a question of title to the premises, is that a title which S .29A permits a party to establish in a competent Court other than that specified in S. 28 ?If it is possible to avoid a conflict between the provisions of S. 28 and S. 29A on a proper construction thereof, then it is the duty of a Court to so construe them that they are in harmony with each other. It is possible to conceive of cases where in a suit under S. 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent Court to establish his title to such premises by virtue of the provisions of S. 29A. On the other hand, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the Courts specified in S. 28 and no other. That is to say, a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a Court specified in S. 28 and a title de hors the Act may be determined in any other Court of competent jurisdiction.The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions. If defined "landlord" and "tenant" to have a meaning wider in scope and concept than those words have under the ordinary law. Any one who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it. The Act specially provided that the Court specified in S. 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other Court from having such jurisdiction. It is difficult to accept the suggestion that the legislature intended, after setting up special Courts under S. 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a Court not specified in S.By enacting S. 29A the legislature clearly intended that no finality should be attached to the decision of a Court trying a suit under S. 28 on a question of title de hors the Act. The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the Courts specified in S. 28 and no other.In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City CivilHigh Court in dismissing the appeal had directed "Decree not to be executed for a fortnight." In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date. On that day the application for stay was allowed on two conditions being fulfilled and on the non-compliance of which the stay order would stand vacated. On February 19, 1957 another order was passed by this Court when its attention was drawn to the non-compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants. The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in the event of the appeal being dismissed or decided against them. Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough, we are unable to accede to the request made by the appellants. | 0 | 4,473 | 885 | ### 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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?If it is possible to avoid a conflict between the provisions of S. 28 and S. 29A on a proper construction thereof, then it is the duty of a Court to so construe them that they are in harmony with each other. It is possible to conceive of cases where in a suit under S. 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent Court to establish his title to such premises by virtue of the provisions of S. 29A. On the other hand, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the Courts specified in S. 28 and no other. That is to say, a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a Court specified in S. 28 and a title de hors the Act may be determined in any other Court of competent jurisdiction.The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions. If defined "landlord" and "tenant" to have a meaning wider in scope and concept than those words have under the ordinary law. Any one who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it. The Act specially provided that the Court specified in S. 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other Court from having such jurisdiction. It is difficult to accept the suggestion that the legislature intended, after setting up special Courts under S. 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a Court not specified in S. 28. By enacting S. 29A the legislature clearly intended that no finality should be attached to the decision of a Court trying a suit under S. 28 on a question of title de hors the Act. The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the Courts specified in S. 28 and no other.10. Some reference was made to S. 49 of the Presidency Small Cause Courts Act, 1882 which provides that recovery of possession of any immovable property under Ch. VII of the Act shall be no bar to the institution of a suit in the High Court for trying the title thereto.The provisions of this section render no assistance in the matter of interpretation of S. 28 or S. 29A.Chapter VII of the Presidency Small Cause Courts Act deals with the recovery of possession of immovable property from a person including a tenant. The provision of S. 41 onwards prescribe a summary mode for recovery of possession which could even be stayed by the Small Cause Court if the provisions of S. 47 were complied with. Indeed, under S. 41 no claims or rights are determined. In such a situation it is clearly understandable that nothing contained in Ch. VII could be a bar to the institution of a suit in the High Court for trying the title to the immovable property. In a suit under S. 28 the Court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of its provisions. Section 29 provides for an appeal against the decision of the Court. Under Ch. VII of the Presidency Small Cause Courts Act there is no provision for an appeal against an order directing recovery of possession.11. In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City Civil Court.12. On behalf of the appellants a request was made that if the appeal should fail, they may be given some time to vacate the premises. The High Court in dismissing the appeal had directed "Decree not to be executed for a fortnight." In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date. On that day the application for stay was allowed on two conditions being fulfilled and on the non-compliance of which the stay order would stand vacated. On February 19, 1957 another order was passed by this Court when its attention was drawn to the non-compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants. The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in the event of the appeal being dismissed or decided against them. Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough, we are unable to accede to the request made by the appellants.
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No doubt S. 29A expressly provides that nothing contained in S. 28 or S. 29 shall be deemed to bar a party to a suit, proceeding or appeal, mentioned therein , in which a question of title to premises arises and is determined, from suing in a competent Court to establish his title to such premises. Even if it be assumed that a claim to a right to tenancy of premises is a question of title to the premises, is that a title which S .29A permits a party to establish in a competent Court other than that specified in S. 28 ?If it is possible to avoid a conflict between the provisions of S. 28 and S. 29A on a proper construction thereof, then it is the duty of a Court to so construe them that they are in harmony with each other. It is possible to conceive of cases where in a suit under S. 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent Court to establish his title to such premises by virtue of the provisions of S. 29A. On the other hand, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the Courts specified in S. 28 and no other. That is to say, a title which could not be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a Court specified in S. 28 and a title de hors the Act may be determined in any other Court of competent jurisdiction.The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions. If defined "landlord" and "tenant" to have a meaning wider in scope and concept than those words have under the ordinary law. Any one who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it. The Act specially provided that the Court specified in S. 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other Court from having such jurisdiction. It is difficult to accept the suggestion that the legislature intended, after setting up special Courts under S. 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a Court not specified in S.By enacting S. 29A the legislature clearly intended that no finality should be attached to the decision of a Court trying a suit under S. 28 on a question of title de hors the Act. The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the Courts specified in S. 28 and no other.In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City CivilHigh Court in dismissing the appeal had directed "Decree not to be executed for a fortnight." In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date. On that day the application for stay was allowed on two conditions being fulfilled and on the non-compliance of which the stay order would stand vacated. On February 19, 1957 another order was passed by this Court when its attention was drawn to the non-compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants. The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in the event of the appeal being dismissed or decided against them. Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough, we are unable to accede to the request made by the appellants.
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Shree Raja Kandregula Srinivasa Jagannadha Rao Panthu Vs. State Of Andhra Pradesh | not be in a position to classify it as wet land for the benefit of claiming rent for himself in the same way as he would be if he owned a water source and supplied water therefrom as a guaranteed supply to lands registered under that source as ayacut. In the present case, water, was Government water which was brought from Government project. 10. On behalf of the appellant it was submitted that this observation is unsound and is not supportable by any provision of law. The respondents counsel was unable to support this observation of the High Court. 11. Reverting to Ex. B-24 Kalipatnam village was compared with Losaragutlapadu, an adjacent village. In regard to that village also it is mentioned that there is an extensive wet cultivation in delta dry land under project channels as in Kalipatnam Shri J. Sambamurthy, to whose inspection note dated July 1, 1948 reference is made in Ex. B-24 appeared as D. W. 5 and the counsel took us through his statement. In cross-examination he deposed as follows : I cannot say whether there are 4,000 acres of land which are double crop land. There are some lands in which double crops are grown. I cannot say their extent. There are small extents of garden lands. There are single crop lands under extension channel. All these lands are treated as dry lands rents reduced. The Kalipatnam is at the tail end of the delta........... The Losaragutlapadu is in Bhimavaram taluk Yanamadula Drain intervenes Kalipatnam and Losaragutlapadu. Gollavanithippa lands have come under cultivation previously. It is part of Losaragutlapadu. I cannot say whether there are 11,000 acres of land uncultivated in Losaragutlapadu. Probably it is forest area. There were small extents of land in Muthyalapalli and Vempa under the Project Channel. Ex. B- 4 shows that there are lands of double crop. Under the Act the plaintiff has to furnish a statement of lands etc. The plaintiffs agent furnished Exhibit B-6. The soil of Losaragutlapadu was examined. This is contained in Exhibit B-24.The Settlement Officer classified the soils under contained Diglot Registers. An extract of it is contained in Exhibit B-24. I cannot say readily now without reference to Settlement Manual what the figures given in the Diglot Register are relating to the soils. That statement contained in the file relates to the Losaragutlapadu. A similar statement for Kalipatnam was not taken. There is no such statement for that village. I did not write to the Settlement Department to prepare such a statement for suit village. I do not know whether the Government analyse the soil through Agricultural Department before the project was started........ I examined the soils at one or two places and I consulted the Settlement Register at that time. I cannot say whether those one or two places were under extension project. I remember I have taken description of the soil from the Settlement Register and Manual.....I do not know about the construction of the project. 12. Shri J. Satyanarayana, Tahsildar, who appeared as D. W. 7 stated in his cross-examination that the lands in Kalipatnam were sanctioned with two crops, though he could not say whether they were under cultivation since 1948. He was also unable to say whether the Settlement Register from Kalipatnam was available in Taluk Office. According to him water rate in the year 1958 was increased 50 per cent for all lands including Kalipatnam. The cess was also increased proportionately. He was unable to explain the figures given under the description of the soil in Ex. B-24 and indeed he expressed his ignorance about the existence of any register for Kalipatnam on this subject. 13. The appellants argument strongly pressed before us was that the class of land had been determined to be delta dry land exclusively on the basis of the settlement register which did not contain any entry with respect to Kalipatnam. The entry in the settlement register with respect to the soil of Losaragutlapadu could not be taken to cover the soil in Kalipatnam in the absence of evidence that the soil in these two villages was similar in this respect. Stress was also led on the submission that description in the settlement register could not be considered to be conclusive and that proper factual inquiry was necessary because the determination affects the appellants proprietary rights. The submission appears to us to possess merit. The Special Officer had an obligation under Sec. 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of he Special Assistant (Ex. E-24) which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based on no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under Sec. 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act, and, therefore outside the purview of Sec. 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of Civil Courts cannot be excluded. The notification Ex. A-13 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent Act. | 1[ds]The submission appears to us to possess merit. The Special Officer had an obligation under Sec. 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of he Special Assistant (Ex. E-24) which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based on no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under Sec. 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act, and, therefore outside the purview of Sec. 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of Civil Courts cannot be excluded. The notification Ex. A-13 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent ActWe were taken through the relevant portions of Ex.4 which is a report from the Special Assistant to the Special Officer for rentIt is observed therein that there are no wet or garden lands in village Kalipatnam and that the entire land is delta dry in which wet paddy is raised under Kalipatnam project channel. The ryots pay to the Government Rs. 5/per acre by way of water rate. It was emphasised by the appellants learned counsel that the fact that wet paddy is raised in this land, which is described as delta dry and that water rate is paid to the Government, must conclusively show that the land is not delta dry but wet. It is the factual position and not bare entry in the settlement register which should be the guiding factor. Support for this submission was also sought from the recent unreported decision of this Court in O. K. Muthuswamy Mudaliar v. State of Madras, Civil Appeals Nos.in which the following observations occur:The mere fact that the lands are registered dry does not affect their value. The lands are fertile and are cultivated with wet crop. They are irrigable with the waters of the river Bhavani. There is abundant supply of water throughout the year. The landowners had the right to take water for the irrigation of 400 acres. | 1 | 4,623 | 554 | ### 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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not be in a position to classify it as wet land for the benefit of claiming rent for himself in the same way as he would be if he owned a water source and supplied water therefrom as a guaranteed supply to lands registered under that source as ayacut. In the present case, water, was Government water which was brought from Government project. 10. On behalf of the appellant it was submitted that this observation is unsound and is not supportable by any provision of law. The respondents counsel was unable to support this observation of the High Court. 11. Reverting to Ex. B-24 Kalipatnam village was compared with Losaragutlapadu, an adjacent village. In regard to that village also it is mentioned that there is an extensive wet cultivation in delta dry land under project channels as in Kalipatnam Shri J. Sambamurthy, to whose inspection note dated July 1, 1948 reference is made in Ex. B-24 appeared as D. W. 5 and the counsel took us through his statement. In cross-examination he deposed as follows : I cannot say whether there are 4,000 acres of land which are double crop land. There are some lands in which double crops are grown. I cannot say their extent. There are small extents of garden lands. There are single crop lands under extension channel. All these lands are treated as dry lands rents reduced. The Kalipatnam is at the tail end of the delta........... The Losaragutlapadu is in Bhimavaram taluk Yanamadula Drain intervenes Kalipatnam and Losaragutlapadu. Gollavanithippa lands have come under cultivation previously. It is part of Losaragutlapadu. I cannot say whether there are 11,000 acres of land uncultivated in Losaragutlapadu. Probably it is forest area. There were small extents of land in Muthyalapalli and Vempa under the Project Channel. Ex. B- 4 shows that there are lands of double crop. Under the Act the plaintiff has to furnish a statement of lands etc. The plaintiffs agent furnished Exhibit B-6. The soil of Losaragutlapadu was examined. This is contained in Exhibit B-24.The Settlement Officer classified the soils under contained Diglot Registers. An extract of it is contained in Exhibit B-24. I cannot say readily now without reference to Settlement Manual what the figures given in the Diglot Register are relating to the soils. That statement contained in the file relates to the Losaragutlapadu. A similar statement for Kalipatnam was not taken. There is no such statement for that village. I did not write to the Settlement Department to prepare such a statement for suit village. I do not know whether the Government analyse the soil through Agricultural Department before the project was started........ I examined the soils at one or two places and I consulted the Settlement Register at that time. I cannot say whether those one or two places were under extension project. I remember I have taken description of the soil from the Settlement Register and Manual.....I do not know about the construction of the project. 12. Shri J. Satyanarayana, Tahsildar, who appeared as D. W. 7 stated in his cross-examination that the lands in Kalipatnam were sanctioned with two crops, though he could not say whether they were under cultivation since 1948. He was also unable to say whether the Settlement Register from Kalipatnam was available in Taluk Office. According to him water rate in the year 1958 was increased 50 per cent for all lands including Kalipatnam. The cess was also increased proportionately. He was unable to explain the figures given under the description of the soil in Ex. B-24 and indeed he expressed his ignorance about the existence of any register for Kalipatnam on this subject. 13. The appellants argument strongly pressed before us was that the class of land had been determined to be delta dry land exclusively on the basis of the settlement register which did not contain any entry with respect to Kalipatnam. The entry in the settlement register with respect to the soil of Losaragutlapadu could not be taken to cover the soil in Kalipatnam in the absence of evidence that the soil in these two villages was similar in this respect. Stress was also led on the submission that description in the settlement register could not be considered to be conclusive and that proper factual inquiry was necessary because the determination affects the appellants proprietary rights. The submission appears to us to possess merit. The Special Officer had an obligation under Sec. 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of he Special Assistant (Ex. E-24) which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based on no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under Sec. 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act, and, therefore outside the purview of Sec. 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of Civil Courts cannot be excluded. The notification Ex. A-13 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent Act.
### Response:
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### Explanation:
The submission appears to us to possess merit. The Special Officer had an obligation under Sec. 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of he Special Assistant (Ex. E-24) which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based on no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under Sec. 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act, and, therefore outside the purview of Sec. 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of Civil Courts cannot be excluded. The notification Ex. A-13 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent ActWe were taken through the relevant portions of Ex.4 which is a report from the Special Assistant to the Special Officer for rentIt is observed therein that there are no wet or garden lands in village Kalipatnam and that the entire land is delta dry in which wet paddy is raised under Kalipatnam project channel. The ryots pay to the Government Rs. 5/per acre by way of water rate. It was emphasised by the appellants learned counsel that the fact that wet paddy is raised in this land, which is described as delta dry and that water rate is paid to the Government, must conclusively show that the land is not delta dry but wet. It is the factual position and not bare entry in the settlement register which should be the guiding factor. Support for this submission was also sought from the recent unreported decision of this Court in O. K. Muthuswamy Mudaliar v. State of Madras, Civil Appeals Nos.in which the following observations occur:The mere fact that the lands are registered dry does not affect their value. The lands are fertile and are cultivated with wet crop. They are irrigable with the waters of the river Bhavani. There is abundant supply of water throughout the year. The landowners had the right to take water for the irrigation of 400 acres.
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Devinder Singh Vs. State Of Haryana | the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. In Dhulabhai v. State of M. P. (1968 (3) SCR 662 ) Hidayatullah, C.J., speaking for the Court, on an analysis of the various decisions cited before the Court expressing diverse views, culled out as many as 7 propositions; out of them the first two which are material for our purposes are these: (1) Where the statute gives a finality to the orders of the special tribunal the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the Scheme of the Particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see of the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. xxx xxx xxx 14. Thirdly, having regard to the principles stated by this Court while enunciating the first proposition in Dhulabhai case it is clear that even where the statute has given finality to the orders of the special tribunal the Civil Courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which Civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of Civil Courts jurisdiction. Now take the case of an applicant who has applied for a ryotwari patta under Section 11 staking his claim thereto on the basis of his long and uninterrupted possession of the ryoti land but the Settlement Officer on materials before him is not satisfied that the land in question is ryoti land; in that case he will refuse the patta to the applicant. But can he, even after the refusal of the patta, protect the applicants long and uninterrupted possession against the Government interference? Obviously, he cannot, for it lies within his power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But such a person even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Governments interference otherwise than in due course of law and surely before granting such relief the Civil Court may have to adjudicate upon the real nature or character of the land if the same is put in issue. In other words since the Settlement Officer has no power to do what Civil Court would normally do in a suit it is difficult to imply ouster of Civil Courts jurisdiction simply because finality has been accorded to the Settlement Officers order under Section 64-C of the Act." 17. In Richpal Singh and Ors. v. Dalip (1987 (4) SCC 410 ), it was held as under: "12. It is well settled that ouster of jurisdiction of civil courts should not be inferred easily. It must be clearly provided for and established." 18. Strong reliance was placed by learned counsel for the appellant on (1979 (2) All ER 1016). Para 15 of State of Tamil Nadus case (supra) deal with question relating to jurisdiction. These cases dealt with cases where there was no exclusion of any other remedy. 19. The principles culled out from various decisions of this Court are that even when the statute has given finality to the orders of the special tribunal, the Civil Courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Section 26(1)(d) on the other hand specifically excludes jurisdiction of the Civil Court so far as matters which are required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, Collector or prescribed Authority. The entitlement, choice of land and the allotment are matters which are to be dealt with specifically by the authorities under the Act. Additionally, Section 18 provides a forum to ventilate the grievances under the Act in respect of several matters. This is a case of exclusion of the remedy in certain contingencies. It is not a case where the controversy cannot be resolved by the forum provided under the Act. Further in case of any grievance, the validity of the order could have been questioned before the forum provided. That has not been done and on the other hand, the suit was filed after about nine years. 20. | 0[ds]The principles culled out from various decisions of this Court are that even when the statute has given finality to the orders of the special tribunal, the Civil Courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Section 26(1)(d) on the other hand specifically excludes jurisdiction of the Civil Court so far as matters which are required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, Collector or prescribed Authority. The entitlement, choice of land and the allotment are matters which are to be dealt with specifically by the authorities under the Act. Additionally, Section 18 provides a forum to ventilate the grievances under the Act in respect of several matters. This is a case of exclusion of the remedy in certain contingencies. It is not a case where the controversy cannot be resolved by the forum provided under the Act. Further in case of any grievance, the validity of the order could have been questioned before the forum provided. That has not been done and on the other hand, the suit was filed after about nine years | 0 | 3,479 | 225 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. In Dhulabhai v. State of M. P. (1968 (3) SCR 662 ) Hidayatullah, C.J., speaking for the Court, on an analysis of the various decisions cited before the Court expressing diverse views, culled out as many as 7 propositions; out of them the first two which are material for our purposes are these: (1) Where the statute gives a finality to the orders of the special tribunal the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the Scheme of the Particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see of the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. xxx xxx xxx 14. Thirdly, having regard to the principles stated by this Court while enunciating the first proposition in Dhulabhai case it is clear that even where the statute has given finality to the orders of the special tribunal the Civil Courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which Civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of Civil Courts jurisdiction. Now take the case of an applicant who has applied for a ryotwari patta under Section 11 staking his claim thereto on the basis of his long and uninterrupted possession of the ryoti land but the Settlement Officer on materials before him is not satisfied that the land in question is ryoti land; in that case he will refuse the patta to the applicant. But can he, even after the refusal of the patta, protect the applicants long and uninterrupted possession against the Government interference? Obviously, he cannot, for it lies within his power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But such a person even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Governments interference otherwise than in due course of law and surely before granting such relief the Civil Court may have to adjudicate upon the real nature or character of the land if the same is put in issue. In other words since the Settlement Officer has no power to do what Civil Court would normally do in a suit it is difficult to imply ouster of Civil Courts jurisdiction simply because finality has been accorded to the Settlement Officers order under Section 64-C of the Act." 17. In Richpal Singh and Ors. v. Dalip (1987 (4) SCC 410 ), it was held as under: "12. It is well settled that ouster of jurisdiction of civil courts should not be inferred easily. It must be clearly provided for and established." 18. Strong reliance was placed by learned counsel for the appellant on (1979 (2) All ER 1016). Para 15 of State of Tamil Nadus case (supra) deal with question relating to jurisdiction. These cases dealt with cases where there was no exclusion of any other remedy. 19. The principles culled out from various decisions of this Court are that even when the statute has given finality to the orders of the special tribunal, the Civil Courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Section 26(1)(d) on the other hand specifically excludes jurisdiction of the Civil Court so far as matters which are required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, Collector or prescribed Authority. The entitlement, choice of land and the allotment are matters which are to be dealt with specifically by the authorities under the Act. Additionally, Section 18 provides a forum to ventilate the grievances under the Act in respect of several matters. This is a case of exclusion of the remedy in certain contingencies. It is not a case where the controversy cannot be resolved by the forum provided under the Act. Further in case of any grievance, the validity of the order could have been questioned before the forum provided. That has not been done and on the other hand, the suit was filed after about nine years. 20.
### Response:
0
### Explanation:
The principles culled out from various decisions of this Court are that even when the statute has given finality to the orders of the special tribunal, the Civil Courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Section 26(1)(d) on the other hand specifically excludes jurisdiction of the Civil Court so far as matters which are required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, Collector or prescribed Authority. The entitlement, choice of land and the allotment are matters which are to be dealt with specifically by the authorities under the Act. Additionally, Section 18 provides a forum to ventilate the grievances under the Act in respect of several matters. This is a case of exclusion of the remedy in certain contingencies. It is not a case where the controversy cannot be resolved by the forum provided under the Act. Further in case of any grievance, the validity of the order could have been questioned before the forum provided. That has not been done and on the other hand, the suit was filed after about nine years
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Commissioner Of Income-Tax, Bihar Vs. Ramniklal Kothari | of the registered firms liable to be included under Section 23 (5) (a) (ii) in his total income is still received as income from business carried on by him.Counsel for the Commissioner accepted, and in our judgment counsel was right in so doing, that the share of the respondent from the profits of the firms was income from business carried on by the partner. Business carried on by a firm is business carried on by the partners. Profits of the firm are profits earned by all the partners in carrying on the business.In the individual assessment of the partner, his share from the firms business is liable to be taken into account under Section 10 (1). Being income from business, allowances appropriate under Section 10 (2) are admissible before the taxable income is determined. 7. Section 23 (5) (a) (ii) provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner; and Section 16 (1) (b) requires that salary, interest, commission or other remuneration payable by the firm beside the share in the balance of profit is to be taken into account in determining the total income. But it is not thereby implied that expenditure properly allowable in earning the profits, salary, interest, commission or other remuneration is not to be allowed in determining the taxable total income of the partner.The receipt by the partner is business income for the purpose of Section 10 (1) and being business income, expenditure necessary for the purpose of earning that income and appropriate allowances are deductible therefrom in determining the taxable income of the partner. 8. The legal principles which we have endeavoured to set out are well settled by several decisions. In Shantikumar Narottam Morarji v. Commissioner of Income-tax, Bombay City, 27 ITR 69 = (AIR 1955 Bom 234 ) the High Court of Bombay held that it is not correct as a general legal proposition that a partner in a registered firm is not entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits. It would be open to the partner to claim a deduction provided he satisfies the taxing authority that such deduction represents necessary expenditure, the expenditure being incurred in order to enable him to earn the profits which are being subjected to tax. 9. In Basantlal Gupta v. Commissioner of Income-tax, Madras, (1963) 50 ITR 541 (Mad) the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under Section 10 (2) of the Income-tax Act may be trade from his share of income in the firm even after the share has been ascertained. An allowance under Section 10 (2) will be permissible in proper cases even after the share has been ascertained if the expenditure sought to be deducted was incurred by the partner solely and exclusively for the purpose of earning his share in the income of the firm. 10. In a case decided by the High Court of Patna in Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, 37 ITR 528 = (AIR 1959 Pat 395 ) a Hindu undivided family which was a partner in a firm claimed that the salary paid to its members for attending to the business of the firm was incurred as a matter of commercial expediency and for the purpose of earning profits from the partnership business. The Court held that in the assessment of the Hindu undivided family the expenditure would be properly claimed as an allowance under Section 10 (2) (xv) of the Indian Income-tax Act, 1922. Jitmal Bhuramals case, 37 ITR 528 = (AIR 1959 Pat 395 ) was brought in appeal to this Court; see Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, (1962) 44 ITR 887 (SC). It was observe by this Court that a Hindu undivided family will be allowed to deduct salary paid to members of the family if the payment is made as a matter of commercial or business expediency, but the service rendered must be to the family in relation to the business of the family. 11. Counsel for the Commissioner relied upon an unreported judgment of the High Court of Calcutta in Messrs. Iswardas Subhkaran v. Commissioner of Income-tax, West Bengal I. T. Ref. No. 38 of 1952, D/- 2-6-1953 (Cal). In that case a Hindu undivided family entered into a partnership agreement with third parties for the purpose of carrying on a rice mill business. It was not possible for any of the members of the family to attend personally to that business and, therefore, the family employed a Munim to look after its interest. Salary paid to the Munim was claimed as an allowance in determining the taxable income out of the share of the partnership income, Chakravartti, C. J. delivering the judgment of the Court was of the opinion that since the Munim did not look after the interest of the assessee in the firms business but only as a servant of the assessee, the amount paid to the Munim was not an allowance admissible in determining the taxable income. In any event, observed the learned Chief Justice, the profits which have come to the assessee from the partnership have come as net profits, and after they have so come, there cannot be any further deduction on account of expenditure incurred not by the partnership but by the partner who received the share or incurred on any account whatsoever. 12. We are unable to agree with the view expressed by the learned Chief Justice. The case was apparently not fully argued and counsel for the assessee conceded that the amount paid to the Munim was not a permissible deduction in assessing the taxable income of the family out of the share of the profits received from the firm. | 0[ds]12. We are unable to agree with the view expressed by the learned Chief Justice. The case was apparently not fully argued and counsel for the assessee conceded that the amount paid to the Munim was not a permissible deduction in assessing the taxable income of the family out of the share of the profits received from the firm8. The legal principles which we have endeavoured to set out are well settled by several decisions. In Shantikumar Narottam Morarji v. Commissioner of Income-tax, Bombay City, 27 ITR 69 = (AIR 1955 Bom 234 ) the High Court of Bombay held that it is not correct as a general legal proposition that a partner in a registered firm is not entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits. It would be open to the partner to claim a deduction provided he satisfies the taxing authority that such deduction represents necessary expenditure, the expenditure being incurred in order to enable him to earn the profits which are being subjected to taxIn that case a Hindu undivided family entered into a partnership agreement with third parties for the purpose of carrying on a rice mill business. It was not possible for any of the members of the family to attend personally to that business and, therefore, the family employed a Munim to look after its interest. Salary paid to the Munim was claimed as an allowance in determining the taxable income out of the share of the partnership income, Chakravartti, C. J. delivering the judgment of the Court was of the opinion that since the Munim did not look after the interest of the assessee in the firms business but only as a servant of the assessee, the amount paid to the Munim was not an allowance admissible in determining the taxable income. In any event, observed the learned Chief Justice, the profits which have come to the assessee from the partnership have come as net profits, and after they have so come, there cannot be any further deduction on account of expenditure incurred not by the partnership but by the partner who received the share or incurred on any account whatsoever9. In Basantlal Gupta v. Commissioner of Income-tax, Madras, (1963) 50 ITR 541 (Mad) the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under Section 10 (2) of the Income-tax Act may be trade from his share of income in the firm even after the share has been ascertained. An allowance under Section 10 (2) will be permissible in proper cases even after the share has been ascertained if the expenditure sought to be deducted was incurred by the partner solely and exclusively for the purpose of earning his share in the income of the firm10. In a case decided by the High Court of Patna in Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, 37 ITR 528 = (AIR 1959 Pat 395 ) a Hindu undivided family which was a partner in a firm claimed that the salary paid to its members for attending to the business of the firm was incurred as a matter of commercial expediency and for the purpose of earning profits from the partnership business. The Court held that in the assessment of the Hindu undivided family the expenditure would be properly claimed as an allowance under Section 10 (2) (xv) of the Indian Income-tax Act, 1922. Jitmal Bhuramals case, 37 ITR 528 = (AIR 1959 Pat 395 ) was brought in appeal to this Court; see Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, (1962) 44 ITR 887 (SC). It was observe by this Court that a Hindu undivided family will be allowed to deduct salary paid to members of the family if the payment is made as a matter of commercial or business expediency, but the service rendered must be to the family in relation to the business of the family. | 0 | 1,698 | 746 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
of the registered firms liable to be included under Section 23 (5) (a) (ii) in his total income is still received as income from business carried on by him.Counsel for the Commissioner accepted, and in our judgment counsel was right in so doing, that the share of the respondent from the profits of the firms was income from business carried on by the partner. Business carried on by a firm is business carried on by the partners. Profits of the firm are profits earned by all the partners in carrying on the business.In the individual assessment of the partner, his share from the firms business is liable to be taken into account under Section 10 (1). Being income from business, allowances appropriate under Section 10 (2) are admissible before the taxable income is determined. 7. Section 23 (5) (a) (ii) provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner; and Section 16 (1) (b) requires that salary, interest, commission or other remuneration payable by the firm beside the share in the balance of profit is to be taken into account in determining the total income. But it is not thereby implied that expenditure properly allowable in earning the profits, salary, interest, commission or other remuneration is not to be allowed in determining the taxable total income of the partner.The receipt by the partner is business income for the purpose of Section 10 (1) and being business income, expenditure necessary for the purpose of earning that income and appropriate allowances are deductible therefrom in determining the taxable income of the partner. 8. The legal principles which we have endeavoured to set out are well settled by several decisions. In Shantikumar Narottam Morarji v. Commissioner of Income-tax, Bombay City, 27 ITR 69 = (AIR 1955 Bom 234 ) the High Court of Bombay held that it is not correct as a general legal proposition that a partner in a registered firm is not entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits. It would be open to the partner to claim a deduction provided he satisfies the taxing authority that such deduction represents necessary expenditure, the expenditure being incurred in order to enable him to earn the profits which are being subjected to tax. 9. In Basantlal Gupta v. Commissioner of Income-tax, Madras, (1963) 50 ITR 541 (Mad) the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under Section 10 (2) of the Income-tax Act may be trade from his share of income in the firm even after the share has been ascertained. An allowance under Section 10 (2) will be permissible in proper cases even after the share has been ascertained if the expenditure sought to be deducted was incurred by the partner solely and exclusively for the purpose of earning his share in the income of the firm. 10. In a case decided by the High Court of Patna in Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, 37 ITR 528 = (AIR 1959 Pat 395 ) a Hindu undivided family which was a partner in a firm claimed that the salary paid to its members for attending to the business of the firm was incurred as a matter of commercial expediency and for the purpose of earning profits from the partnership business. The Court held that in the assessment of the Hindu undivided family the expenditure would be properly claimed as an allowance under Section 10 (2) (xv) of the Indian Income-tax Act, 1922. Jitmal Bhuramals case, 37 ITR 528 = (AIR 1959 Pat 395 ) was brought in appeal to this Court; see Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, (1962) 44 ITR 887 (SC). It was observe by this Court that a Hindu undivided family will be allowed to deduct salary paid to members of the family if the payment is made as a matter of commercial or business expediency, but the service rendered must be to the family in relation to the business of the family. 11. Counsel for the Commissioner relied upon an unreported judgment of the High Court of Calcutta in Messrs. Iswardas Subhkaran v. Commissioner of Income-tax, West Bengal I. T. Ref. No. 38 of 1952, D/- 2-6-1953 (Cal). In that case a Hindu undivided family entered into a partnership agreement with third parties for the purpose of carrying on a rice mill business. It was not possible for any of the members of the family to attend personally to that business and, therefore, the family employed a Munim to look after its interest. Salary paid to the Munim was claimed as an allowance in determining the taxable income out of the share of the partnership income, Chakravartti, C. J. delivering the judgment of the Court was of the opinion that since the Munim did not look after the interest of the assessee in the firms business but only as a servant of the assessee, the amount paid to the Munim was not an allowance admissible in determining the taxable income. In any event, observed the learned Chief Justice, the profits which have come to the assessee from the partnership have come as net profits, and after they have so come, there cannot be any further deduction on account of expenditure incurred not by the partnership but by the partner who received the share or incurred on any account whatsoever. 12. We are unable to agree with the view expressed by the learned Chief Justice. The case was apparently not fully argued and counsel for the assessee conceded that the amount paid to the Munim was not a permissible deduction in assessing the taxable income of the family out of the share of the profits received from the firm.
### Response:
0
### Explanation:
12. We are unable to agree with the view expressed by the learned Chief Justice. The case was apparently not fully argued and counsel for the assessee conceded that the amount paid to the Munim was not a permissible deduction in assessing the taxable income of the family out of the share of the profits received from the firm8. The legal principles which we have endeavoured to set out are well settled by several decisions. In Shantikumar Narottam Morarji v. Commissioner of Income-tax, Bombay City, 27 ITR 69 = (AIR 1955 Bom 234 ) the High Court of Bombay held that it is not correct as a general legal proposition that a partner in a registered firm is not entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits. It would be open to the partner to claim a deduction provided he satisfies the taxing authority that such deduction represents necessary expenditure, the expenditure being incurred in order to enable him to earn the profits which are being subjected to taxIn that case a Hindu undivided family entered into a partnership agreement with third parties for the purpose of carrying on a rice mill business. It was not possible for any of the members of the family to attend personally to that business and, therefore, the family employed a Munim to look after its interest. Salary paid to the Munim was claimed as an allowance in determining the taxable income out of the share of the partnership income, Chakravartti, C. J. delivering the judgment of the Court was of the opinion that since the Munim did not look after the interest of the assessee in the firms business but only as a servant of the assessee, the amount paid to the Munim was not an allowance admissible in determining the taxable income. In any event, observed the learned Chief Justice, the profits which have come to the assessee from the partnership have come as net profits, and after they have so come, there cannot be any further deduction on account of expenditure incurred not by the partnership but by the partner who received the share or incurred on any account whatsoever9. In Basantlal Gupta v. Commissioner of Income-tax, Madras, (1963) 50 ITR 541 (Mad) the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under Section 10 (2) of the Income-tax Act may be trade from his share of income in the firm even after the share has been ascertained. An allowance under Section 10 (2) will be permissible in proper cases even after the share has been ascertained if the expenditure sought to be deducted was incurred by the partner solely and exclusively for the purpose of earning his share in the income of the firm10. In a case decided by the High Court of Patna in Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, 37 ITR 528 = (AIR 1959 Pat 395 ) a Hindu undivided family which was a partner in a firm claimed that the salary paid to its members for attending to the business of the firm was incurred as a matter of commercial expediency and for the purpose of earning profits from the partnership business. The Court held that in the assessment of the Hindu undivided family the expenditure would be properly claimed as an allowance under Section 10 (2) (xv) of the Indian Income-tax Act, 1922. Jitmal Bhuramals case, 37 ITR 528 = (AIR 1959 Pat 395 ) was brought in appeal to this Court; see Jitmal Bhuramal v. Commissioner of Income-tax, Bihar and Orissa, (1962) 44 ITR 887 (SC). It was observe by this Court that a Hindu undivided family will be allowed to deduct salary paid to members of the family if the payment is made as a matter of commercial or business expediency, but the service rendered must be to the family in relation to the business of the family.
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Hindustan Zinc Ltd Vs. Rajasthan Electricity Regulatory Commission | Extraordinary on 22.1.2011. In view of the above, it is a matter of fact that the impugned Regulation does not have the effect of curtailing the power generation of the Captive Power Plant as the appellants have the right to supply surplus power to the grid. 47. The said paras from the Electricity Policy referred to supra are framed for giving effect to the objects and provisions of the Act and the same cannot be interpreted as restricting the ambit of specific provision contained in Section 86(1)(e) of the Act in any manner. The provision in the Electricity Policy cannot be read and interpreted as a statutory provision as held by this Court in the case of Secretary, Ministry of Chemicals and Fertilizer, Govt. of India v. Cipla Ltd. & Ors., (2003) 7 SCC 1. The relevant paragraph of the said case is extracted hereunder:- "4.1 It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go-bye to the policy guidelines evolved by itself in the matter of selection of drugs for price control. The Government itself stressed the need to evolve and adopt transparent criteria to be applied across the board so as to minimise the scope for subjective approach and therefore came forward with specific criteria. It is nobodys case that for any good reasons, the policy or norms have been changed or became impracticable of compliance. That being the case, the Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself. The delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy; otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14." Therefore, the Regulations do not relate to determination of tariff, as such reliance placed by the appellants learned senior counsel upon Section 62 of the Act, which deals with the determination of tariff is mis-conceived. 48. Further, the submission of the appellants that the impugned Regulations do not fall under Clause (a) to Clause (zp) of Section 181(2) of the Act of 2003, which give power to the State Commission to frame Regulations is devoid of any merit. The said contention has been rightly rebutted by the learned counsel for the RERC that the said submission loses sight of Section 181 (1) of the Act of 2003 which provides that the State Commission may, by notification, make Regulations consistent with the Act and the Rules generally to carry out the provisions of the Act. The specific power under the various clauses of Section 181(2) of the Act of 2003 is without prejudice to the general and wider power contained in Section 181(1) of the Act of 2003. The 2007/2010 Regulations have been framed by the RERC to effectuate the provisions of Section 86(1)(e) read with Section 86(4) of the Act of 2003 and are covered by Section 181(1) of the Act. In support of the same, reliance was placed on the decision of this Court on the case of PTC India Limited (supra)that the Regulations can be made under the Act as long as two conditions are satisfied, namely, that they are consistent with the Act of 2003 and are made for carrying out for provisions of the Act.49. The purchase of nominal quantum of energy from renewable resources cannot adversely affect the cost effectiveness of the Captive Power Plant. Moreover, the object being reduction of pollution by promoting renewable source of energy, larger public interest must prevail over the interest of the industry herein which will in any case pass on the extra burden, if any, will be as part of the cost of its products and therefore, the same does not burden the appellants. The reliance placed upon the aforesaid paras of the policies is mis-conceived as the same pertains to the Captive Power Plants to be set up by group of consumers namely, small and medium industries and other consumers who are not in a position to set up a Captive Power Plant of optimal in a cost effective manner. The aforesaid para in the context of Section 2 (8) of the Act has no application to the case of the appellants which are large industries having individual Captive Power Plants. The provision of RE surcharge in the Statute is only meant for ensuring compliance with the requirement of consumption of the specified quantum of energy from renewable sources and the same is to be used in case of shortfall in compliance of RE obligation. The said provision does not amount to imposition of a pecuniary liability.50. Article 51A(g) of the Constitution of India cast a fundamental duty on the citizen to protect and improve the natural environment. Considering the global warming, mandate of Articles 21 and 51A(g) of the Constitution, provisions for the Act of 2003, the National Electricity Policy of 2005 and the Tariff Policy of 2006 is in the larger public interest, Regulations have been framed by RERC imposing obligation upon captive power plants and open access consumers to purchase electricity from renewable sources. The RE obligation imposed upon captive power plants and open consumers through impugned Regulation cannot in any manner be said to be restrictive or violative of the fundamental rights conferred on the appellants under Articles 14 and 19(1)(g) of the Constitution of India. Upon consideration of the rival submissions by the well-reasoned order, the High Court has rightly upheld the validity of the impugned Regulation and we do not find any reason to interfere with the impugned judgment. All the appeals are dismissed as the same are devoid of merit. 51. I.A. | 1[ds]26. The above said legal contentions urged by the learned senior counsel on behalf of the appellants are wholly untenable in law for the reason that the Parliament with an avowed object to encourage private sectors participation in power generation, transmission and distribution of electricity to the consumers and in order to distancing itself, the regulatory responsibilities from the Government has been conferred with the Regulatory Commissions in the country. The Electricity Act of 2003 being acomprehensive legislation in the matter of generation and the transmission and supply of energy to its consumers, the provisions of Section 82 of the Act of 2003 enjoin upon every State Government to constitute a Regulatory Commission in their respective State to regulate the implementation of the provisions of the Act of 2003 by framing suitable Regulations and Rules with reference to the matters/entries enumerated in Section 181 of the Act of 2003 and accordingly the State of Rajasthan has constituted the RERC. The functions of the Regulatory Commission have been mentioned under Section 86 of the Act of 2003.Further, the submission of the appellants that the impugned Regulations do not fall under Clause (a) to Clause (zp) of Section 181(2) of the Act of 2003, which give power to the State Commission to frame Regulations is devoid of any merit. The said contention has been rightly rebutted by the learned counsel for the RERC that the said submission loses sight of Section 181 (1) of the Act of 2003 which provides that the State Commission may, by notification, make Regulations consistent with the Act and the Rules generally to carry out the provisions of the Act. The specific power under the various clauses of Section 181(2) of the Act of 2003 is without prejudice to the general and wider power contained in Section 181(1) of the Act of 2003. The 2007/2010 Regulations have been framed by the RERC to effectuate the provisions of Section 86(1)(e) read with Section 86(4) of the Act of 2003 and are covered by Section 181(1) of the Act. In support of the same, reliance was placed on the decision of this Court on the case of PTC India Limited (supra)that the Regulations can be made under the Act as long as two conditions are satisfied, namely, that they are consistent with the Act of 2003 and are made for carrying out for provisions of the Act.49. The purchase of nominal quantum of energy from renewable resources cannot adversely affect the cost effectiveness of the Captive Power Plant. Moreover, the object being reduction of pollution by promoting renewable source of energy, larger public interest must prevail over the interest of the industry herein which will in any case pass on the extra burden, if any, will be as part of the cost of its products and therefore, the same does not burden the appellants. The reliance placed upon the aforesaid paras of the policies isas the same pertains to the Captive Power Plants to be set up by group of consumers namely, small and medium industries and other consumers who are not in a position to set up a Captive Power Plant of optimal in a cost effective manner. The aforesaid para in the context of Section 2 (8) of the Act has no application to the case of the appellants which are large industries having individual Captive Power Plants. The provision of RE surcharge in the Statute is only meant for ensuring compliance with the requirement of consumption of the specified quantum of energy from renewable sources and the same is to be used in case of shortfall in compliance of RE obligation. The said provision does not amount to imposition of a pecuniary liability.50. Article51A(g) of the Constitution ofIndia cast a fundamental duty on the citizen to protect and improve the natural environment. Considering the global warming, mandate of Articles 21 and 51A(g) of the Constitution, provisions for the Act of 2003, the National Electricity Policy of 2005 and the Tariff Policy of 2006 is in the larger public interest, Regulations have been framed by RERC imposing obligation upon captive power plants and open access consumers to purchase electricity from renewable sources. The RE obligation imposed upon captive power plants and open consumers through impugned Regulation cannot in any manner be said to be restrictive or violative of the fundamental rights conferred on the appellants under Articles 14 and 19(1)(g) of the Constitution of India. Upon consideration of the rival submissions by theorder, the High Court has rightly upheld the validity of the impugned Regulation and we do not find any reason to interfere with the impugnedreference to the aforesaid rival legal contentions we are required to answer the same, considering whether the impugned Regulations imposing RE Obligation upon Captive Power Plants framed by the RERC in exercise of power under Section 86(1)(e) of the Act of 2003, which provides for promotion,cogeneration of electricity fromrenewal source of energy are ultra vires the provisions of the Act or repugnant to Article 14 and 19(1)(g) of the Constitution. Para 4.2.2 of National Action Plan on Climate Change and Preamble of the Act of 2003, emphasise upon the promotion of efficient and environmentally benign policy of the State to encourage generation and consumption of green energy tosubserve the mandate of Article 21 read with Article51A(g) of the Constitution ofIndia. Further, it is consistent with the international obligations of India ratified under Kyoto Protocol on 26.08.2002.The above contention of the learned senior counsel on behalf of some of the appellants has been rightly rebutted by the learned senior counsel on behalf of the RERC by contending that in the case of J.K. Industries Ltd. & Anr. (supra), it was held that where the validity of subordinate legislation is challenged, question to be asked is whether power given to the rule making authority has been exercised for the purpose for which it was given. The Court has to examine the nature, object and scheme of the legislation as a whole to consider what is the area over which powers are conferred upon the rule making authority. However, the Court has to start with the presumption that the Rule isand has to be read down only to save it from being declaredin case the Court finds that the above presumptions stand rebutted and the impugned regulations are relatable to the specific provision contained in Section 86(1)(e) of the Act. | 1 | 13,007 | 1,193 | ### Instruction:
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Extraordinary on 22.1.2011. In view of the above, it is a matter of fact that the impugned Regulation does not have the effect of curtailing the power generation of the Captive Power Plant as the appellants have the right to supply surplus power to the grid. 47. The said paras from the Electricity Policy referred to supra are framed for giving effect to the objects and provisions of the Act and the same cannot be interpreted as restricting the ambit of specific provision contained in Section 86(1)(e) of the Act in any manner. The provision in the Electricity Policy cannot be read and interpreted as a statutory provision as held by this Court in the case of Secretary, Ministry of Chemicals and Fertilizer, Govt. of India v. Cipla Ltd. & Ors., (2003) 7 SCC 1. The relevant paragraph of the said case is extracted hereunder:- "4.1 It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go-bye to the policy guidelines evolved by itself in the matter of selection of drugs for price control. The Government itself stressed the need to evolve and adopt transparent criteria to be applied across the board so as to minimise the scope for subjective approach and therefore came forward with specific criteria. It is nobodys case that for any good reasons, the policy or norms have been changed or became impracticable of compliance. That being the case, the Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself. The delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy; otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14." Therefore, the Regulations do not relate to determination of tariff, as such reliance placed by the appellants learned senior counsel upon Section 62 of the Act, which deals with the determination of tariff is mis-conceived. 48. Further, the submission of the appellants that the impugned Regulations do not fall under Clause (a) to Clause (zp) of Section 181(2) of the Act of 2003, which give power to the State Commission to frame Regulations is devoid of any merit. The said contention has been rightly rebutted by the learned counsel for the RERC that the said submission loses sight of Section 181 (1) of the Act of 2003 which provides that the State Commission may, by notification, make Regulations consistent with the Act and the Rules generally to carry out the provisions of the Act. The specific power under the various clauses of Section 181(2) of the Act of 2003 is without prejudice to the general and wider power contained in Section 181(1) of the Act of 2003. The 2007/2010 Regulations have been framed by the RERC to effectuate the provisions of Section 86(1)(e) read with Section 86(4) of the Act of 2003 and are covered by Section 181(1) of the Act. In support of the same, reliance was placed on the decision of this Court on the case of PTC India Limited (supra)that the Regulations can be made under the Act as long as two conditions are satisfied, namely, that they are consistent with the Act of 2003 and are made for carrying out for provisions of the Act.49. The purchase of nominal quantum of energy from renewable resources cannot adversely affect the cost effectiveness of the Captive Power Plant. Moreover, the object being reduction of pollution by promoting renewable source of energy, larger public interest must prevail over the interest of the industry herein which will in any case pass on the extra burden, if any, will be as part of the cost of its products and therefore, the same does not burden the appellants. The reliance placed upon the aforesaid paras of the policies is mis-conceived as the same pertains to the Captive Power Plants to be set up by group of consumers namely, small and medium industries and other consumers who are not in a position to set up a Captive Power Plant of optimal in a cost effective manner. The aforesaid para in the context of Section 2 (8) of the Act has no application to the case of the appellants which are large industries having individual Captive Power Plants. The provision of RE surcharge in the Statute is only meant for ensuring compliance with the requirement of consumption of the specified quantum of energy from renewable sources and the same is to be used in case of shortfall in compliance of RE obligation. The said provision does not amount to imposition of a pecuniary liability.50. Article 51A(g) of the Constitution of India cast a fundamental duty on the citizen to protect and improve the natural environment. Considering the global warming, mandate of Articles 21 and 51A(g) of the Constitution, provisions for the Act of 2003, the National Electricity Policy of 2005 and the Tariff Policy of 2006 is in the larger public interest, Regulations have been framed by RERC imposing obligation upon captive power plants and open access consumers to purchase electricity from renewable sources. The RE obligation imposed upon captive power plants and open consumers through impugned Regulation cannot in any manner be said to be restrictive or violative of the fundamental rights conferred on the appellants under Articles 14 and 19(1)(g) of the Constitution of India. Upon consideration of the rival submissions by the well-reasoned order, the High Court has rightly upheld the validity of the impugned Regulation and we do not find any reason to interfere with the impugned judgment. All the appeals are dismissed as the same are devoid of merit. 51. I.A.
### Response:
1
### Explanation:
Commissions in the country. The Electricity Act of 2003 being acomprehensive legislation in the matter of generation and the transmission and supply of energy to its consumers, the provisions of Section 82 of the Act of 2003 enjoin upon every State Government to constitute a Regulatory Commission in their respective State to regulate the implementation of the provisions of the Act of 2003 by framing suitable Regulations and Rules with reference to the matters/entries enumerated in Section 181 of the Act of 2003 and accordingly the State of Rajasthan has constituted the RERC. The functions of the Regulatory Commission have been mentioned under Section 86 of the Act of 2003.Further, the submission of the appellants that the impugned Regulations do not fall under Clause (a) to Clause (zp) of Section 181(2) of the Act of 2003, which give power to the State Commission to frame Regulations is devoid of any merit. The said contention has been rightly rebutted by the learned counsel for the RERC that the said submission loses sight of Section 181 (1) of the Act of 2003 which provides that the State Commission may, by notification, make Regulations consistent with the Act and the Rules generally to carry out the provisions of the Act. The specific power under the various clauses of Section 181(2) of the Act of 2003 is without prejudice to the general and wider power contained in Section 181(1) of the Act of 2003. The 2007/2010 Regulations have been framed by the RERC to effectuate the provisions of Section 86(1)(e) read with Section 86(4) of the Act of 2003 and are covered by Section 181(1) of the Act. In support of the same, reliance was placed on the decision of this Court on the case of PTC India Limited (supra)that the Regulations can be made under the Act as long as two conditions are satisfied, namely, that they are consistent with the Act of 2003 and are made for carrying out for provisions of the Act.49. The purchase of nominal quantum of energy from renewable resources cannot adversely affect the cost effectiveness of the Captive Power Plant. Moreover, the object being reduction of pollution by promoting renewable source of energy, larger public interest must prevail over the interest of the industry herein which will in any case pass on the extra burden, if any, will be as part of the cost of its products and therefore, the same does not burden the appellants. The reliance placed upon the aforesaid paras of the policies isas the same pertains to the Captive Power Plants to be set up by group of consumers namely, small and medium industries and other consumers who are not in a position to set up a Captive Power Plant of optimal in a cost effective manner. The aforesaid para in the context of Section 2 (8) of the Act has no application to the case of the appellants which are large industries having individual Captive Power Plants. The provision of RE surcharge in the Statute is only meant for ensuring compliance with the requirement of consumption of the specified quantum of energy from renewable sources and the same is to be used in case of shortfall in compliance of RE obligation. The said provision does not amount to imposition of a pecuniary liability.50. Article51A(g) of the Constitution ofIndia cast a fundamental duty on the citizen to protect and improve the natural environment. Considering the global warming, mandate of Articles 21 and 51A(g) of the Constitution, provisions for the Act of 2003, the National Electricity Policy of 2005 and the Tariff Policy of 2006 is in the larger public interest, Regulations have been framed by RERC imposing obligation upon captive power plants and open access consumers to purchase electricity from renewable sources. The RE obligation imposed upon captive power plants and open consumers through impugned Regulation cannot in any manner be said to be restrictive or violative of the fundamental rights conferred on the appellants under Articles 14 and 19(1)(g) of the Constitution of India. Upon consideration of the rival submissions by theorder, the High Court has rightly upheld the validity of the impugned Regulation and we do not find any reason to interfere with the impugnedreference to the aforesaid rival legal contentions we are required to answer the same, considering whether the impugned Regulations imposing RE Obligation upon Captive Power Plants framed by the RERC in exercise of power under Section 86(1)(e) of the Act of 2003, which provides for promotion,cogeneration of electricity fromrenewal source of energy are ultra vires the provisions of the Act or repugnant to Article 14 and 19(1)(g) of the Constitution. Para 4.2.2 of National Action Plan on Climate Change and Preamble of the Act of 2003, emphasise upon the promotion of efficient and environmentally benign policy of the State to encourage generation and consumption of green energy tosubserve the mandate of Article 21 read with Article51A(g) of the Constitution ofIndia. Further, it is consistent with the international obligations of India ratified under Kyoto Protocol on 26.08.2002.The above contention of the learned senior counsel on behalf of some of the appellants has been rightly rebutted by the learned senior counsel on behalf of the RERC by contending that in the case of J.K. Industries Ltd. & Anr. (supra), it was held that where the validity of subordinate legislation is challenged, question to be asked is whether power given to the rule making authority has been exercised for the purpose for which it was given. The Court has to examine the nature, object and scheme of the legislation as a whole to consider what is the area over which powers are conferred upon the rule making authority. However, the Court has to start with the presumption that the Rule isand has to be read down only to save it from being declaredin case the Court finds that the above presumptions stand rebutted and the impugned regulations are relatable to the specific provision contained in Section 86(1)(e) of the Act.
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Fonseca Private Limited & Others Vs. L.C. Gupta & Others | unauthorised occupation as defined in Act 40 of 1971 and then it has to record reasons for such satisfaction while making an order of eviction directing that the public premises shall be vacated by all persons who may be in occupation thereof within a specified period. The consequences of any person disobeying such an order are serious as such a person shall be liable to imprisonment or fine or with both under sub-rule (5) of Rule 155. Any order, therefore, made under that rule must strictly comply with the requirement of the rule itself. It is common ground and cannot be disputed that Shri L. C. Gupta, Deputy Secretary, who made the order could do so only if he had the requisite authority under the Government of India (Transaction of Business) Rules, 1961 which were framed in exercise of the powers conferred by clause (3) of Art. 33 of the Constitution. Rule 11 is in the following terms :- "Responsibility of Departmental Secretaries- In each department, the Secretary (which term includes the Special Secretary or Additional Secretary or Joint Secretary in independent charge) shall be the administrative head thereof and shall be responsible for the proper transaction of business and the careful observance of those rules in that department." Rule 3 says, inter alia, that all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961 shall be disposed of by or under the general or special directions of the Minister in charge. 4. According to the appellants Shri L. C. Gupta was not authorised under the Rules of Business to exercise the power of the Central Government. Although in the return filed by the respondents it seems to have been maintained that the order made by Shri L. C. Gupta was by a competent authority but before the High Court at the stage of argument it was conceded that he had no authority under the Act to act for and on behalf of the Central Government. The High Court found that the reasons recorded in the order of Shri L. C. Gupta could not be said to be reasons recorded by the Central Government. The High Court, however, proceeded to look at the contents of a file which was produced and the notings made thereon by the Joint Secretary and the Secretary of the Ministry for the purpose of finding out whether the requirements as to formation of opinion and satisfaction as also the recording of reasons for that satisfaction as required by Rule 155 had been fulfilled. The High Court, after taking into consideration the facts relating to the derivative title of the appellants which had been set up, came to the following conclusion : "The derivative title of the petitioner is therefore of no help and on the date of the order they were in unauthorised occupation of the building for precisely the same reasons which were accepted by the Minister." 5. Mr. A. K. Sen for the appellants has streneously assailed the decision given by the High Court with regard to the title of the appellants relevant for deciding the question whether they were in unauthorised of the premises in question. That according to Mr. Sen was the subject-matter of separate proceedings under Act 40 of 1971. Indeed in those proceedings the learned District Judge of Delhi had, by order dated February 5, 1972, directed the Estate Officer, who had issued a notice to show cause against the order of eviction under Section 4 of that Act, to allow the appellants to lead evidence on the question of title which had been shut out by the Estate Officer. Mr. Sen has maintained that the determination of the question whether the property No. 1 Man Singh Road was public premises as defined by Section 2 (e) of the aforesaid Act and whether the appellants were in unauthorised occupation within the meaning of clause (g) of Section 2 of that Act had to be made in accordance with the procedure prescribed thereby and the same could not be short-circuited or supplanted by the satisfaction of the Central Government while making an order under Rule 155 of the Defence of India Rules. Mr. F. S. Nariman, the learned Additional Solicitor General, on the other hand, contends that Section 37 of the Defence of India Act provides that the provisions of that Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsitent therewith contained in any enactment other than the said Act. According to him the action taken under Rule 155 is quite independent of the proceedings under Act 40 of 1971 (The Public Premises (Eviction of Unauthorised Occupants) Act, 1971). 6. In our judgment it is wholly unnecessary to decide in these proceedings the above question as also certain other contentions which were raised by Mr. Sen relating to the applicability of the rule of natural justice even to proceedings under Rule 155 of the Defence of India Rules and the necessity for communication of the order made under that Rule. Mr. Nariman quite properly chose not to go back on the concession which had been made before the High Court that Shri L. C. Gupta who had made the impugned order under Rule 155 had no authority whatsoever to exercise the powers of the Central Government. It is the Central Government alone that is empowered to make an order under that Rule and under the Rules of Business it would be the Minister or the Officer empowered thereby who alone could exercise those powers in the name of the President, Shri L. C. Gupta admittedly having no such power the order made by him was wholly illegal, ineffective and void.Such an order on the face of it deserved to be quashed and ought to have been quashed on that ground alone by the High Court without deciding the other points some of which are sub judice in proceedings under Act 40 of 1971. | 1[ds]6. In our judgment it is wholly unnecessary to decide in these proceedings the above question as also certain other contentions which were raised by Mr. Sen relating to the applicability of the rule of natural justice even to proceedings under Rule 155 of the Defence of India Rules and the necessity for communication of the order made under that Rule. Mr. Nariman quite properly chose not to go back on the concession which had been made before the High Court that ShriL. C.Guptawho had made the impugned order under Rule 155 had no authority whatsoever to exercise the powers of the Central Government. It is the Central Government alone that is empowered to make an order under that Rule and under the Rules of Business it would be the Minister or the Officer empowered thereby who alone could exercise those powers in the name of the President, ShriL. C.Guptaadmittedly having no such power the order made by him was wholly illegal, ineffective and void.Such an order on the face of it deserved to be quashed and ought to have been quashed on that ground alone by the High Court without deciding the other points some of which are sub judice in proceedings under Act 40 of 1971. | 1 | 2,055 | 220 | ### Instruction:
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unauthorised occupation as defined in Act 40 of 1971 and then it has to record reasons for such satisfaction while making an order of eviction directing that the public premises shall be vacated by all persons who may be in occupation thereof within a specified period. The consequences of any person disobeying such an order are serious as such a person shall be liable to imprisonment or fine or with both under sub-rule (5) of Rule 155. Any order, therefore, made under that rule must strictly comply with the requirement of the rule itself. It is common ground and cannot be disputed that Shri L. C. Gupta, Deputy Secretary, who made the order could do so only if he had the requisite authority under the Government of India (Transaction of Business) Rules, 1961 which were framed in exercise of the powers conferred by clause (3) of Art. 33 of the Constitution. Rule 11 is in the following terms :- "Responsibility of Departmental Secretaries- In each department, the Secretary (which term includes the Special Secretary or Additional Secretary or Joint Secretary in independent charge) shall be the administrative head thereof and shall be responsible for the proper transaction of business and the careful observance of those rules in that department." Rule 3 says, inter alia, that all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961 shall be disposed of by or under the general or special directions of the Minister in charge. 4. According to the appellants Shri L. C. Gupta was not authorised under the Rules of Business to exercise the power of the Central Government. Although in the return filed by the respondents it seems to have been maintained that the order made by Shri L. C. Gupta was by a competent authority but before the High Court at the stage of argument it was conceded that he had no authority under the Act to act for and on behalf of the Central Government. The High Court found that the reasons recorded in the order of Shri L. C. Gupta could not be said to be reasons recorded by the Central Government. The High Court, however, proceeded to look at the contents of a file which was produced and the notings made thereon by the Joint Secretary and the Secretary of the Ministry for the purpose of finding out whether the requirements as to formation of opinion and satisfaction as also the recording of reasons for that satisfaction as required by Rule 155 had been fulfilled. The High Court, after taking into consideration the facts relating to the derivative title of the appellants which had been set up, came to the following conclusion : "The derivative title of the petitioner is therefore of no help and on the date of the order they were in unauthorised occupation of the building for precisely the same reasons which were accepted by the Minister." 5. Mr. A. K. Sen for the appellants has streneously assailed the decision given by the High Court with regard to the title of the appellants relevant for deciding the question whether they were in unauthorised of the premises in question. That according to Mr. Sen was the subject-matter of separate proceedings under Act 40 of 1971. Indeed in those proceedings the learned District Judge of Delhi had, by order dated February 5, 1972, directed the Estate Officer, who had issued a notice to show cause against the order of eviction under Section 4 of that Act, to allow the appellants to lead evidence on the question of title which had been shut out by the Estate Officer. Mr. Sen has maintained that the determination of the question whether the property No. 1 Man Singh Road was public premises as defined by Section 2 (e) of the aforesaid Act and whether the appellants were in unauthorised occupation within the meaning of clause (g) of Section 2 of that Act had to be made in accordance with the procedure prescribed thereby and the same could not be short-circuited or supplanted by the satisfaction of the Central Government while making an order under Rule 155 of the Defence of India Rules. Mr. F. S. Nariman, the learned Additional Solicitor General, on the other hand, contends that Section 37 of the Defence of India Act provides that the provisions of that Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsitent therewith contained in any enactment other than the said Act. According to him the action taken under Rule 155 is quite independent of the proceedings under Act 40 of 1971 (The Public Premises (Eviction of Unauthorised Occupants) Act, 1971). 6. In our judgment it is wholly unnecessary to decide in these proceedings the above question as also certain other contentions which were raised by Mr. Sen relating to the applicability of the rule of natural justice even to proceedings under Rule 155 of the Defence of India Rules and the necessity for communication of the order made under that Rule. Mr. Nariman quite properly chose not to go back on the concession which had been made before the High Court that Shri L. C. Gupta who had made the impugned order under Rule 155 had no authority whatsoever to exercise the powers of the Central Government. It is the Central Government alone that is empowered to make an order under that Rule and under the Rules of Business it would be the Minister or the Officer empowered thereby who alone could exercise those powers in the name of the President, Shri L. C. Gupta admittedly having no such power the order made by him was wholly illegal, ineffective and void.Such an order on the face of it deserved to be quashed and ought to have been quashed on that ground alone by the High Court without deciding the other points some of which are sub judice in proceedings under Act 40 of 1971.
### Response:
1
### Explanation:
6. In our judgment it is wholly unnecessary to decide in these proceedings the above question as also certain other contentions which were raised by Mr. Sen relating to the applicability of the rule of natural justice even to proceedings under Rule 155 of the Defence of India Rules and the necessity for communication of the order made under that Rule. Mr. Nariman quite properly chose not to go back on the concession which had been made before the High Court that ShriL. C.Guptawho had made the impugned order under Rule 155 had no authority whatsoever to exercise the powers of the Central Government. It is the Central Government alone that is empowered to make an order under that Rule and under the Rules of Business it would be the Minister or the Officer empowered thereby who alone could exercise those powers in the name of the President, ShriL. C.Guptaadmittedly having no such power the order made by him was wholly illegal, ineffective and void.Such an order on the face of it deserved to be quashed and ought to have been quashed on that ground alone by the High Court without deciding the other points some of which are sub judice in proceedings under Act 40 of 1971.
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Munshi Lal Verma Vs. Union of India | RANGANATH MISRA, J.1. Special Leave is granted.2. Appellant an Assistant in the employment of the Western Railway filed a suit asking appointment in one of the 24 upgraded posts of non-gazetted cadre Clerks sanctioned in March 1957 with effect from April 1, 1956. The requisites to be satisfied for enjoying the advantage were that the employee should be a graduate on the date of the order viz., November 12, 1957 and should be entitled to be considered on the basis of seniority. The plaintiff was placed in the 21st position according to seniority and was already a graduate by the relevant date. He was, however, not given one of those upgraded posts as four out of the 24 upgraded posts were reserved for Scheduled Castes and Scheduled Tribes employees. Ultimately when employees of the reserved category were not available the posts were dereserved. Yet plaintiff was not given one of those posts. He, therefore, filed the suit.3. The Railway Administration took the stand that plaintiff had not passed the requisite test by the relevant date and before dereservation of the four posts the office was reorganised and the divisionalisation was adopted. The plaintiff, therefore had no. right to the post.4. The trial Court as also the Additional District Judge in appeal and the High Court in Second Appeal have negatived relief to the plaintiff. The short question which has been canvassed in appeal before this Court is that divisionalisation had no. relationship with the plaintiffs claim to one of the upgraded posts. The relevant order of the Railway Administration clearly indicates that the posts were upgraded with effect from April 1, 1956, and if the requisite qualification was possessed by the date of the order issued on November 12, 1957 plaintiffs claim was bound to succeed. Five aspects were raised for consideration in the Courts below and on the first four findings were given in favour of the plaintiff. But he lost on a finding that the posts did not exist. This finding seems to be contrary to the record inasmuch as in a letter dated September 19, 1963, it was clearly indicated that the four vacancies remained unfilled. If this aspect had been borne in mind, the plaintiff was bound to succeed. Mr. Francis for the Railway Administration had no. answer to this contention.5. The plaintiff must succeed on the findings already recorded in the Courts below. | 1[ds]The relevant order of the Railway Administration clearly indicates that the posts were upgraded with effect from April 1, 1956, and if the requisite qualification was possessed by the date of the order issued on November 12, 1957 plaintiffs claim was bound to succeed. Five aspects were raised for consideration in the Courts below and on the first four findings were given in favour of the plaintiff. But he lost on a finding that the posts did not exist. This finding seems to be contrary to the record inasmuch as in a letter dated September 19, 1963, it was clearly indicated that the four vacancies remained unfilled. If this aspect had been borne in mind, the plaintiff was bound to succeed. Mr. Francis for the Railway Administration had no. answer to this contention.5. The plaintiff must succeed on the findings already recorded in the Courts below. | 1 | 436 | 164 | ### Instruction:
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RANGANATH MISRA, J.1. Special Leave is granted.2. Appellant an Assistant in the employment of the Western Railway filed a suit asking appointment in one of the 24 upgraded posts of non-gazetted cadre Clerks sanctioned in March 1957 with effect from April 1, 1956. The requisites to be satisfied for enjoying the advantage were that the employee should be a graduate on the date of the order viz., November 12, 1957 and should be entitled to be considered on the basis of seniority. The plaintiff was placed in the 21st position according to seniority and was already a graduate by the relevant date. He was, however, not given one of those upgraded posts as four out of the 24 upgraded posts were reserved for Scheduled Castes and Scheduled Tribes employees. Ultimately when employees of the reserved category were not available the posts were dereserved. Yet plaintiff was not given one of those posts. He, therefore, filed the suit.3. The Railway Administration took the stand that plaintiff had not passed the requisite test by the relevant date and before dereservation of the four posts the office was reorganised and the divisionalisation was adopted. The plaintiff, therefore had no. right to the post.4. The trial Court as also the Additional District Judge in appeal and the High Court in Second Appeal have negatived relief to the plaintiff. The short question which has been canvassed in appeal before this Court is that divisionalisation had no. relationship with the plaintiffs claim to one of the upgraded posts. The relevant order of the Railway Administration clearly indicates that the posts were upgraded with effect from April 1, 1956, and if the requisite qualification was possessed by the date of the order issued on November 12, 1957 plaintiffs claim was bound to succeed. Five aspects were raised for consideration in the Courts below and on the first four findings were given in favour of the plaintiff. But he lost on a finding that the posts did not exist. This finding seems to be contrary to the record inasmuch as in a letter dated September 19, 1963, it was clearly indicated that the four vacancies remained unfilled. If this aspect had been borne in mind, the plaintiff was bound to succeed. Mr. Francis for the Railway Administration had no. answer to this contention.5. The plaintiff must succeed on the findings already recorded in the Courts below.
### Response:
1
### Explanation:
The relevant order of the Railway Administration clearly indicates that the posts were upgraded with effect from April 1, 1956, and if the requisite qualification was possessed by the date of the order issued on November 12, 1957 plaintiffs claim was bound to succeed. Five aspects were raised for consideration in the Courts below and on the first four findings were given in favour of the plaintiff. But he lost on a finding that the posts did not exist. This finding seems to be contrary to the record inasmuch as in a letter dated September 19, 1963, it was clearly indicated that the four vacancies remained unfilled. If this aspect had been borne in mind, the plaintiff was bound to succeed. Mr. Francis for the Railway Administration had no. answer to this contention.5. The plaintiff must succeed on the findings already recorded in the Courts below.
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Bombay Union Of Journalists & Ors Vs. The State Of Bombay & Anr, | the use of the work "until" is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c), because after the retrenchment is effected, the employer has to comply with the condition of giving notice about the said retrenchment to the appropriate Government, and that is where the provision in clause (c) that the notice has to be served in the prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this notice and, stated broadly, it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of notice, the Rules seem to provide that the notice in that behalf should be served within the specified period prescribed by them; that is to say, under the Rules, notice in such a case has to be served not before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain no doubt contends that if his construction of S. 25F (c) is correct, the Rules would be invalid and that is true; but on the view we are inclined to take, the Rules framed by the Government appear to be consistent with the policy underlying the provision prescribed by S. 25F(c).We are, therefore, satisfied that S.25F(c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected.12. In this connection, there is one more consideration which is relevant. We have already seen the requirement of S. 25F (a). There is a proviso to S.25 F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause (a) of S. 25F, therefore, affords a safeguard in the interests of the retrenched employee; it requires the employer either to give him one months notice or to pay him wages in lieu thereof before he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the times of retrenchment, compensation which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one months notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by clause (b).The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provisions prescribed by clause (c) a condition precedent as in the case of clauses (a) and (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) and (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) and (b), is not a condition precedent.13. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that S. 25F (c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narains contention that a writ of mandamus should be issued against respondent No. 1 .A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No.1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of S.25F (c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act ? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of S.25F(c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication. The breach of S.25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provisions contained in S.10 (1) read with S.12 (5) clearly show that even where a breach of S.25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that, of course, would be another matter; in such a case a party would be entitled to move the High Court for a writ of mandamus. | 0[ds]11. The argument based on the negative form in which the provision is enacted and the use of the word "until" no doubt are in favour of the appellants contention, but the context seems to require a different treatment to the provision contained in cl. (c). Besides, the requirement introduced by the use of the work "until" is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c), because after the retrenchment is effected, the employer has to comply with the condition of giving notice about the said retrenchment to the appropriate Government, and that is where the provision in clause (c) that the notice has to be served in the prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this notice and, stated broadly, it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of notice, the Rules seem to provide that the notice in that behalf should be served within the specified period prescribed by them; that is to say, under the Rules, notice in such a case has to be served not before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain no doubt contends that if his construction of S. 25F (c) is correct, the Rules would be invalid and that is true; but on the view we are inclined to take, the Rules framed by the Government appear to be consistent with the policy underlying the provision prescribed by S. 25F(c).We are, therefore, satisfied that S.25F(c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected.12. In this connection, there is one more consideration which is relevant. We have already seen the requirement of S. 25F (a). There is a proviso to S.25 F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause (a) of S. 25F, therefore, affords a safeguard in the interests of the retrenched employee; it requires the employer either to give him one months notice or to pay him wages in lieu thereof before he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the times of retrenchment, compensation which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one months notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by clause (b).The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provisions prescribed by clause (c) a condition precedent as in the case of clauses (a) and (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) and (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) and (b), is not a condition precedent.13. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that S. 25F (c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narains contention that a writ of mandamus should be issued against respondent No. 1 .A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No.1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of S.25F (c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act ? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of S.25F(c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication. The breach of S.25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provisions contained in S.10 (1) read with S.12 (5) clearly show that even where a breach of S.25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that, of course, would be another matter; in such a case a party would be entitled to move the High Court for a writ of mandamus. | 0 | 4,750 | 1,196 | ### 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 use of the work "until" is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c), because after the retrenchment is effected, the employer has to comply with the condition of giving notice about the said retrenchment to the appropriate Government, and that is where the provision in clause (c) that the notice has to be served in the prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this notice and, stated broadly, it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of notice, the Rules seem to provide that the notice in that behalf should be served within the specified period prescribed by them; that is to say, under the Rules, notice in such a case has to be served not before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain no doubt contends that if his construction of S. 25F (c) is correct, the Rules would be invalid and that is true; but on the view we are inclined to take, the Rules framed by the Government appear to be consistent with the policy underlying the provision prescribed by S. 25F(c).We are, therefore, satisfied that S.25F(c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected.12. In this connection, there is one more consideration which is relevant. We have already seen the requirement of S. 25F (a). There is a proviso to S.25 F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause (a) of S. 25F, therefore, affords a safeguard in the interests of the retrenched employee; it requires the employer either to give him one months notice or to pay him wages in lieu thereof before he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the times of retrenchment, compensation which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one months notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by clause (b).The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provisions prescribed by clause (c) a condition precedent as in the case of clauses (a) and (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) and (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) and (b), is not a condition precedent.13. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that S. 25F (c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narains contention that a writ of mandamus should be issued against respondent No. 1 .A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No.1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of S.25F (c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act ? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of S.25F(c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication. The breach of S.25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provisions contained in S.10 (1) read with S.12 (5) clearly show that even where a breach of S.25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that, of course, would be another matter; in such a case a party would be entitled to move the High Court for a writ of mandamus.
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0
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the use of the work "until" is complied with even on the view we are inclined to take about the nature of the condition prescribed by clause (c), because after the retrenchment is effected, the employer has to comply with the condition of giving notice about the said retrenchment to the appropriate Government, and that is where the provision in clause (c) that the notice has to be served in the prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this notice and, stated broadly, it does appear that these Rules do not require a notice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of notice, the Rules seem to provide that the notice in that behalf should be served within the specified period prescribed by them; that is to say, under the Rules, notice in such a case has to be served not before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain no doubt contends that if his construction of S. 25F (c) is correct, the Rules would be invalid and that is true; but on the view we are inclined to take, the Rules framed by the Government appear to be consistent with the policy underlying the provision prescribed by S. 25F(c).We are, therefore, satisfied that S.25F(c) cannot be said to constitute a condition precedent which has to be fulfilled before retrenchment can be validly effected.12. In this connection, there is one more consideration which is relevant. We have already seen the requirement of S. 25F (a). There is a proviso to S.25 F(a) which lays down that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause (a) of S. 25F, therefore, affords a safeguard in the interests of the retrenched employee; it requires the employer either to give him one months notice or to pay him wages in lieu thereof before he is retrenched. Similarly, clause (b) provides that the workman has to be paid at the times of retrenchment, compensation which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months. It would be noticed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman; he must be given one months notice or wages in lieu thereof and he must get retrenchment compensation as prescribed by clause (b).The object which the Legislature had in mind in making these two conditions obligatory and in constituting them into conditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provisions prescribed by clause (c) a condition precedent as in the case of clauses (a) and (b). Therefore, having regard to the object which is intended to be achieved by clauses (a) and (b) as distinguished from the object which clause (c) has in mind, it would not be unreasonable to hold that clause (c), unlike clauses (a) and (b), is not a condition precedent.13. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that S. 25F (c) constitutes a condition precedent, it would not have been easy to accept Mr. Bishan Narains contention that a writ of mandamus should be issued against respondent No. 1 .A writ of mandamus could be validly issued in such a case if it was established that it was the duty and the obligation of respondent No.1 to refer for adjudication an industrial dispute where the employee contends that the retrenchment effected by the employer contravenes the provisions of S.25F (c). Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the contravention of a mandatory provision of the Act ? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman contrary to the provisions of S.25F(c), it does not follow that a dispute resulting from such retrenchment must necessarily be referred for industrial adjudication. The breach of S.25F is no doubt a serious matter and normally the appropriate Government would refer a dispute of this kind for industrial adjudication; but the provisions contained in S.10 (1) read with S.12 (5) clearly show that even where a breach of S.25F is alleged, the appropriate Government may have to consider the expediency of making a reference and if after considering all the relevant facts, the appropriate Government comes to the conclusion that it would be inexpedient to make the reference, it would be competent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant considerations, or on extraneous grounds, or acts mala fide, that, of course, would be another matter; in such a case a party would be entitled to move the High Court for a writ of mandamus.
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State of Assam & Another Etc Vs. Basanta Kumar Das Etc | simple ground. If this contention is to be upheld it will apply to the other two cases also. On behalf of the State of Assam it was contended that this point was not raised till the appeals were taken up for argument, that they were taken by surprise and they would be prepared to file a petition for special leave if that was considered necessary, if the appeals were adjourned by a week. In the very case relied upon by Mr. Daphtary the appellant filed a special leave application and after hearing the parties the Court came to the conclusion that the leave asked for should be granted. We may now consider some of the earlier decisions of this Court on this point. In Union of India v. Kishori Lal Gupta, (1960) 1 SCR 493 = (AIR 1959 SC 1362 ) special leave to appeal from the judgment of a single Judge of the High Court had been obtained without first appealing to the appellate bench of the High Court. This Court held that the leave could have been revoked if the objection was taken at the earliest opportunity, and an objection to the leave so granted and an application for revocation of leave made after inordinate delay at a later stage would prejudice the appellant, for if the objection had been taken at the earliest point of time the appellant would have the opportunity to prefer a Letters Patent Appeal and the appellant cannot be made to suffer for the default of the respondent. 17. In Durga Prasad v. Banaras Bank Ltd., (1964) 1 SCR 475 = (AIR 1963 SC 1322 ) the High Court had certified the case under Art. 133 (1) (a) of the Constitution for appeal to this Court. It was urged during the hearing of the appeal on behalf of the other side that the appeal was not competent on the ground that the High Court had no jurisdiction to grant the certificate under Art. 133 (1) (a) of the Constitution without certifying that the appeal involved some substantial question of law. This Court held that the appeal could not be entertained as it was a case of a judgment of the High Court which affirmed the judgment of the single Judge and the High Court had not certified that the decision involved any substantial question of law. The counsel for the appellant, however, requested that in any event special leave to appeal under Art. 136 of the Constitution be granted. But having regard to all the circumstances this Court decided that it was not a fit case for granting leave to appeal. 18. In Civil Appeal No. 578 of 1963, decided on 23rd July, 1965 this Court, though it held that the certificate granted by the High Court was incompetent, heard the Counsel for the appellant, who made an oral request for grant of special leave undertaking to file a petition supported by an affidavit and by an application for condonation of delay immediately. This Court thought that it was a fit and proper case and that special leave should be granted because important questions of law had to be decided. It directed the appellant to file the necessary special leave petition within a week. 19. In the latest decision of this Court in Bijili Cotton Mills v. Industrial Tribunal II, AIR 1972 SC 1903 to which one of us was a party, it was held that this Court under Article 136 is fully competent to entertain even an oral prayer for grant of special leave and condonation of delay and if the cause of justice so demands, to grant the same and to consider the special leave to appeal on merits. On consideration of all the circumstances of that case it was held that it was fit for granting special leave to appeal and for condoning the delay. The decision in C. A. No. 578 of 1963 (SC) was cited with approval. These cases established that the powers of this Court to grant special leave under Article 136 are very wide and that it would be prepared to exercise it at any stage in a proper case. Furthermore, it would not allow an objection to the nature of the certificate to be taken if it is done at a late stage making it impossible for the appellant to resort to the proper remedy as he could have done if the objection had been taken at an early stage. 20. This Court does not simply dismiss an appeal on the ground that the leave obtained was not a proper one and leave the matter to rest there. It is always prepared to consider the request for grant of special leave at any stage if the circumstances of the case require. An objection to the certificate should be taken at the earliest possible moment and the respondents failure to do so would not be allowed to prejudice the appellant and he would not be made to suffer for the failure of the respondents. In this case also if the objection had been taken at the earliest point of time the appellant could have applied for special leave and in the circumstances of this case we would have been prepared to grant special leave. When the High Court decided these cases the judgment of this Court in (1971) 1 SCR 503 = (AIR 1970 SC 1314 ) had not been delivered. Therefore, a substantial question of law arose for decision in these cases. If the respondents had raised to point at the earliest possible time we would have been prepared to consider an oral request for special leave and for condonation of delay and to direct the appellants to file petitions for this purpose. But as it has been done only at the last moment after the appeals were taken up for hearing we are of opinion that the appellants should not be made to suffer by the respondents negligence. We, therefore, hold against this objection. | 1[ds]20. This Court does not simply dismiss an appeal on the ground that the leave obtained was not a proper one and leave the matter to rest there. It is always prepared to consider the request for grant of special leave at any stage if the circumstances of the case require. An objection to the certificate should be taken at the earliest possible moment and the respondents failure to do so would not be allowed to prejudice the appellant and he would not be made to suffer for the failure of the respondents. In this case also if the objection had been taken at the earliest point of time the appellant could have applied for special leave and in the circumstances of this case we would have been prepared to grant special leave. When the High Court decided these cases the judgment of this Court in (1971) 1 SCR 503 = (AIR 1970 SC 1314 ) had not been delivered. Therefore, a substantial question of law arose for decision in these cases. If the respondents had raised to point at the earliest possible time we would have been prepared to consider an oral request for special leave and for condonation of delay and to direct the appellants to file petitions for this purpose. But as it has been done only at the last moment after the appeals were taken up for hearing we are of opinion that the appellants should not be made to suffer by the respondents negligence. We, therefore, hold against this objection. | 1 | 4,184 | 275 | ### 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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simple ground. If this contention is to be upheld it will apply to the other two cases also. On behalf of the State of Assam it was contended that this point was not raised till the appeals were taken up for argument, that they were taken by surprise and they would be prepared to file a petition for special leave if that was considered necessary, if the appeals were adjourned by a week. In the very case relied upon by Mr. Daphtary the appellant filed a special leave application and after hearing the parties the Court came to the conclusion that the leave asked for should be granted. We may now consider some of the earlier decisions of this Court on this point. In Union of India v. Kishori Lal Gupta, (1960) 1 SCR 493 = (AIR 1959 SC 1362 ) special leave to appeal from the judgment of a single Judge of the High Court had been obtained without first appealing to the appellate bench of the High Court. This Court held that the leave could have been revoked if the objection was taken at the earliest opportunity, and an objection to the leave so granted and an application for revocation of leave made after inordinate delay at a later stage would prejudice the appellant, for if the objection had been taken at the earliest point of time the appellant would have the opportunity to prefer a Letters Patent Appeal and the appellant cannot be made to suffer for the default of the respondent. 17. In Durga Prasad v. Banaras Bank Ltd., (1964) 1 SCR 475 = (AIR 1963 SC 1322 ) the High Court had certified the case under Art. 133 (1) (a) of the Constitution for appeal to this Court. It was urged during the hearing of the appeal on behalf of the other side that the appeal was not competent on the ground that the High Court had no jurisdiction to grant the certificate under Art. 133 (1) (a) of the Constitution without certifying that the appeal involved some substantial question of law. This Court held that the appeal could not be entertained as it was a case of a judgment of the High Court which affirmed the judgment of the single Judge and the High Court had not certified that the decision involved any substantial question of law. The counsel for the appellant, however, requested that in any event special leave to appeal under Art. 136 of the Constitution be granted. But having regard to all the circumstances this Court decided that it was not a fit case for granting leave to appeal. 18. In Civil Appeal No. 578 of 1963, decided on 23rd July, 1965 this Court, though it held that the certificate granted by the High Court was incompetent, heard the Counsel for the appellant, who made an oral request for grant of special leave undertaking to file a petition supported by an affidavit and by an application for condonation of delay immediately. This Court thought that it was a fit and proper case and that special leave should be granted because important questions of law had to be decided. It directed the appellant to file the necessary special leave petition within a week. 19. In the latest decision of this Court in Bijili Cotton Mills v. Industrial Tribunal II, AIR 1972 SC 1903 to which one of us was a party, it was held that this Court under Article 136 is fully competent to entertain even an oral prayer for grant of special leave and condonation of delay and if the cause of justice so demands, to grant the same and to consider the special leave to appeal on merits. On consideration of all the circumstances of that case it was held that it was fit for granting special leave to appeal and for condoning the delay. The decision in C. A. No. 578 of 1963 (SC) was cited with approval. These cases established that the powers of this Court to grant special leave under Article 136 are very wide and that it would be prepared to exercise it at any stage in a proper case. Furthermore, it would not allow an objection to the nature of the certificate to be taken if it is done at a late stage making it impossible for the appellant to resort to the proper remedy as he could have done if the objection had been taken at an early stage. 20. This Court does not simply dismiss an appeal on the ground that the leave obtained was not a proper one and leave the matter to rest there. It is always prepared to consider the request for grant of special leave at any stage if the circumstances of the case require. An objection to the certificate should be taken at the earliest possible moment and the respondents failure to do so would not be allowed to prejudice the appellant and he would not be made to suffer for the failure of the respondents. In this case also if the objection had been taken at the earliest point of time the appellant could have applied for special leave and in the circumstances of this case we would have been prepared to grant special leave. When the High Court decided these cases the judgment of this Court in (1971) 1 SCR 503 = (AIR 1970 SC 1314 ) had not been delivered. Therefore, a substantial question of law arose for decision in these cases. If the respondents had raised to point at the earliest possible time we would have been prepared to consider an oral request for special leave and for condonation of delay and to direct the appellants to file petitions for this purpose. But as it has been done only at the last moment after the appeals were taken up for hearing we are of opinion that the appellants should not be made to suffer by the respondents negligence. We, therefore, hold against this objection.
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1
### Explanation:
20. This Court does not simply dismiss an appeal on the ground that the leave obtained was not a proper one and leave the matter to rest there. It is always prepared to consider the request for grant of special leave at any stage if the circumstances of the case require. An objection to the certificate should be taken at the earliest possible moment and the respondents failure to do so would not be allowed to prejudice the appellant and he would not be made to suffer for the failure of the respondents. In this case also if the objection had been taken at the earliest point of time the appellant could have applied for special leave and in the circumstances of this case we would have been prepared to grant special leave. When the High Court decided these cases the judgment of this Court in (1971) 1 SCR 503 = (AIR 1970 SC 1314 ) had not been delivered. Therefore, a substantial question of law arose for decision in these cases. If the respondents had raised to point at the earliest possible time we would have been prepared to consider an oral request for special leave and for condonation of delay and to direct the appellants to file petitions for this purpose. But as it has been done only at the last moment after the appeals were taken up for hearing we are of opinion that the appellants should not be made to suffer by the respondents negligence. We, therefore, hold against this objection.
|
Anjali Kapoor Vs. Rajiv Baijal | stage, it may be useful to refer to the decision of Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar (AIR 1935 Madras 195), wherein the Court has observed, that, if a minor has for many years from a tender age lived with grand parents or near relatives and has been well cared for and during that time the minors father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the banafide of the petition by the father for their custody. 14) In our view, the observations made by the Madras High Court cannot be taken exception by us. In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision. 15) In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was observed that, ... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, or by physical comfort only. The word welfare must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded. 16) In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that: an application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment. 17) In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that: welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the childs own character, personality and talents. 18) Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughters image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child. 19) Anagh is staying with the appellants family and is also studying in one of the reputed school in Indore. It must be stated that the appellant has taken proper care and attention in upbringing of the child, which is one of the important factor to be considered for the welfare of the child. Anagh is with the appellant right from her childhood which has resulted into a strong emotional bonding between the two and the appellant being a woman herself can very well understand the needs of the child. It also appears that appellant, even after her husbands demise, is financially sound as she runs her own independent business. 20) On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business. 21) Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child. | 1[ds]14) In our view, the observations made by the Madras High Court cannot be taken exception by us. In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision18) Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughters image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child20) On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business21) Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child | 1 | 2,628 | 488 | ### 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:
stage, it may be useful to refer to the decision of Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar (AIR 1935 Madras 195), wherein the Court has observed, that, if a minor has for many years from a tender age lived with grand parents or near relatives and has been well cared for and during that time the minors father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the banafide of the petition by the father for their custody. 14) In our view, the observations made by the Madras High Court cannot be taken exception by us. In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision. 15) In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was observed that, ... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, or by physical comfort only. The word welfare must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded. 16) In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that: an application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment. 17) In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that: welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the childs own character, personality and talents. 18) Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughters image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child. 19) Anagh is staying with the appellants family and is also studying in one of the reputed school in Indore. It must be stated that the appellant has taken proper care and attention in upbringing of the child, which is one of the important factor to be considered for the welfare of the child. Anagh is with the appellant right from her childhood which has resulted into a strong emotional bonding between the two and the appellant being a woman herself can very well understand the needs of the child. It also appears that appellant, even after her husbands demise, is financially sound as she runs her own independent business. 20) On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business. 21) Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.
### Response:
1
### Explanation:
14) In our view, the observations made by the Madras High Court cannot be taken exception by us. In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision18) Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughters image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child20) On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business21) Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child
|
R.D. Goyal Vs. Reliance Inds.Ltd | shares could be called a consumer? In CIT vs. Standard Vacuum Oil Co. while defining shares, this Court observed: "A share is not a sum of money; it represents an interest - by a sum of money and made up of diverse rights contained in the contract evidenced by the articles of association of the Company". 31. Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods..." 29. Furthermore, as noticed, hereinbefore, the expression "goods", underwent an amendment in the year 1991. The relevant notes on clauses as contained in the Statement of Objects and Reasons of the Monopolies and Restrictive Trade Practices (Amendment) Bill, 1991 (Bill No. 198 of 1991) speaks thus:- "Clause 2 seeks to enlarge the definition of "goods" by including issue of shares before allotment. The scope of the definition of "service" is also being enlarged by including chit-fund. An explanation has also been added that any deals in real estate shall be deemed to be included in "service". 30. It is, therefore, evident that the said amendment is not explanatory or clarificatory in nature. By reason thereof, the definition of goods was sought to be enlarged which will have prospective operation. The very fact that the Parliament in its wisdom sought to enlarge the definition of goods by including the issue of shares by allotment as also the service is a clear point to the fact that thereby the mischief which was existing in the said provision was sought to be remedied.31. It is, therefore, axiomatic that before the said definition of "goods" was amended, the matter relating to issue of shares before allotment was not included therein. 32. In Shree Gopal Paper Mills Ltd. vs. Commissioner of Income-tax, Central Calcutta (1967) 37 Comp. Cas 240), the question which fell for consideration before a Bench of the Calcutta High Court was the meaning and scope of words "share", "issue of share" vis-a-vis "bonus share" issued to them. The Calcutta High Court noticed the decision of this Court in Shri Gopal Jalan & Co. vs. Calcutta Stock Exchange Association Ltd. (1963) 33 Comp. Cas. 862) wherein it was held that allotment of share means appropriation of unissued shares to a specified number of persons. It was further held that issue of shares is something distinct from allotment and is subsequent act whereby the title of the allottee becomes complete. 33. The matter thence came up before this Court in Shree Gopal Paper Mills Ltd. vs. Commissioner of Income-tax, Central Calcutta (1970) 77 I.T.R. 543). It was held by the High Court that a share cannot be held to have been issued unless a share certificate is given to the concerned person. This Court, however, disagreed with the view of the High Court only to the aforementioned extent. It was noticed: "... The words "allot" and "distribute" found in clause (b) of the resolution do not carry the matter further. Their meaning should be gathered from the context in which they were used. Clauses (b) and (c) of the resolution must be read harmoniously with clause (a). The word "allotment" has not been defined in the Companies Act. The meaning of the word "allot" or "allotment" will have to be gathered from the context in which those words are used. This court considered the meaning of the word "allotment" in Sri Gopal Jalan and Co. vs. Calcutta Stock Exchange Association Ltd. Therein, it referred to a large number of English decisions which have considered the meaning of that word. In that decision this Court referred to the observations of Chitty J. in In re Florence Land and Public Works Co.:"To my mind there is no magic whatever in the term "allotment" as used in these circumstances. It is said that the allotment is an appropriation of a specific number of shares. It is an appropriation, not of specific shares, but of a certain number of shares". In Sri Gopal Jalans case Sarkar J (as he then was) quoted with approval the following passage from Farwell L.J. in Mosley vs. Koffyfontain Mines Ltd.: "As regards the construction of these particular articles, it is plain that the words "creation", "issue" and "allotment" are used with three different meanings familiar to business people as well as to lawyers. There are three steps with regard to new capital; first, it is created; till it is created the capital does not exist at all. When it is created it may remain unissued for years, as indeed it was here; the market did not allow of a favourable opportunity of placing it. When it is issued it may be issued on such terms as appear for the moment expedient. Next comes allotment. To take the words of Sterling J. in Spitzel vs. Chinese Corporation, he says; "What is an allotment of shares. Broadly speaking, it is an appropriation by the directors or the managing body of the company of shares to a particular person". After examining the various decisions, Sarkar J. observed: "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..." 34. In view of the aforementioned authoritative pronouncement of this Court it must be held that shares pending allotment in view of the provisions of law as thence existed could not be said to be goods.35. For the aforementioned reasons, it is not necessary to go into the other questions raised at the Bar.36. For the views, we have taken, the judgment of the Commission cannot be found fault with. | 0[ds]13. Debentures, as ordinarily understood, in our considered view, would not come within the purview of definition of goods as it is simply an instrument of acknowledgement of debt by the company whereby undertakes to pay the amount covered by it and till then it undertakes further to pay interest thereon to the debenture-holders.It is true that when there exists a statutory definition in respect of an expression, the dictionary meaning thereof cannot be applied. It is also true that when a statutory definition uses the word "includes", it provides an extended meaning thereto but it is equally well-settled that the words are required to be construed in terms of the legislative intent.18. It is furthermore a well-settled principle of law that if the words are general and not precise, their interpretations are to be restricted to the fitness of matter.In the instant case, the action on the part of the company, in our opinion, does not involve any sale of goods or rendition of any service.It is, therefore, evident that the said amendment is not explanatory or clarificatory in nature. By reason thereof, the definition of goods was sought to be enlarged which will have prospective operation. The very fact that the Parliament in its wisdom sought to enlarge the definition of goods by including the issue of shares by allotment as also the service is a clear point to the fact that thereby the mischief which was existing in the said provision was sought to be remedied.31. It is, therefore, axiomatic that before the said definition of "goods" was amended, the matter relating to issue of shares before allotment was not included therein.In view of the aforementioned authoritative pronouncement of this Court it must be held that shares pending allotment in view of the provisions of law as thence existed could not be said to be goods.35. For the aforementioned reasons, it is not necessary to go into the other questions raised at the Bar.36. For the views, we have taken, the judgment of the Commission cannot be found fault with. | 0 | 5,372 | 380 | ### 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:
shares could be called a consumer? In CIT vs. Standard Vacuum Oil Co. while defining shares, this Court observed: "A share is not a sum of money; it represents an interest - by a sum of money and made up of diverse rights contained in the contract evidenced by the articles of association of the Company". 31. Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods..." 29. Furthermore, as noticed, hereinbefore, the expression "goods", underwent an amendment in the year 1991. The relevant notes on clauses as contained in the Statement of Objects and Reasons of the Monopolies and Restrictive Trade Practices (Amendment) Bill, 1991 (Bill No. 198 of 1991) speaks thus:- "Clause 2 seeks to enlarge the definition of "goods" by including issue of shares before allotment. The scope of the definition of "service" is also being enlarged by including chit-fund. An explanation has also been added that any deals in real estate shall be deemed to be included in "service". 30. It is, therefore, evident that the said amendment is not explanatory or clarificatory in nature. By reason thereof, the definition of goods was sought to be enlarged which will have prospective operation. The very fact that the Parliament in its wisdom sought to enlarge the definition of goods by including the issue of shares by allotment as also the service is a clear point to the fact that thereby the mischief which was existing in the said provision was sought to be remedied.31. It is, therefore, axiomatic that before the said definition of "goods" was amended, the matter relating to issue of shares before allotment was not included therein. 32. In Shree Gopal Paper Mills Ltd. vs. Commissioner of Income-tax, Central Calcutta (1967) 37 Comp. Cas 240), the question which fell for consideration before a Bench of the Calcutta High Court was the meaning and scope of words "share", "issue of share" vis-a-vis "bonus share" issued to them. The Calcutta High Court noticed the decision of this Court in Shri Gopal Jalan & Co. vs. Calcutta Stock Exchange Association Ltd. (1963) 33 Comp. Cas. 862) wherein it was held that allotment of share means appropriation of unissued shares to a specified number of persons. It was further held that issue of shares is something distinct from allotment and is subsequent act whereby the title of the allottee becomes complete. 33. The matter thence came up before this Court in Shree Gopal Paper Mills Ltd. vs. Commissioner of Income-tax, Central Calcutta (1970) 77 I.T.R. 543). It was held by the High Court that a share cannot be held to have been issued unless a share certificate is given to the concerned person. This Court, however, disagreed with the view of the High Court only to the aforementioned extent. It was noticed: "... The words "allot" and "distribute" found in clause (b) of the resolution do not carry the matter further. Their meaning should be gathered from the context in which they were used. Clauses (b) and (c) of the resolution must be read harmoniously with clause (a). The word "allotment" has not been defined in the Companies Act. The meaning of the word "allot" or "allotment" will have to be gathered from the context in which those words are used. This court considered the meaning of the word "allotment" in Sri Gopal Jalan and Co. vs. Calcutta Stock Exchange Association Ltd. Therein, it referred to a large number of English decisions which have considered the meaning of that word. In that decision this Court referred to the observations of Chitty J. in In re Florence Land and Public Works Co.:"To my mind there is no magic whatever in the term "allotment" as used in these circumstances. It is said that the allotment is an appropriation of a specific number of shares. It is an appropriation, not of specific shares, but of a certain number of shares". In Sri Gopal Jalans case Sarkar J (as he then was) quoted with approval the following passage from Farwell L.J. in Mosley vs. Koffyfontain Mines Ltd.: "As regards the construction of these particular articles, it is plain that the words "creation", "issue" and "allotment" are used with three different meanings familiar to business people as well as to lawyers. There are three steps with regard to new capital; first, it is created; till it is created the capital does not exist at all. When it is created it may remain unissued for years, as indeed it was here; the market did not allow of a favourable opportunity of placing it. When it is issued it may be issued on such terms as appear for the moment expedient. Next comes allotment. To take the words of Sterling J. in Spitzel vs. Chinese Corporation, he says; "What is an allotment of shares. Broadly speaking, it is an appropriation by the directors or the managing body of the company of shares to a particular person". After examining the various decisions, Sarkar J. observed: "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..." 34. In view of the aforementioned authoritative pronouncement of this Court it must be held that shares pending allotment in view of the provisions of law as thence existed could not be said to be goods.35. For the aforementioned reasons, it is not necessary to go into the other questions raised at the Bar.36. For the views, we have taken, the judgment of the Commission cannot be found fault with.
### Response:
0
### Explanation:
13. Debentures, as ordinarily understood, in our considered view, would not come within the purview of definition of goods as it is simply an instrument of acknowledgement of debt by the company whereby undertakes to pay the amount covered by it and till then it undertakes further to pay interest thereon to the debenture-holders.It is true that when there exists a statutory definition in respect of an expression, the dictionary meaning thereof cannot be applied. It is also true that when a statutory definition uses the word "includes", it provides an extended meaning thereto but it is equally well-settled that the words are required to be construed in terms of the legislative intent.18. It is furthermore a well-settled principle of law that if the words are general and not precise, their interpretations are to be restricted to the fitness of matter.In the instant case, the action on the part of the company, in our opinion, does not involve any sale of goods or rendition of any service.It is, therefore, evident that the said amendment is not explanatory or clarificatory in nature. By reason thereof, the definition of goods was sought to be enlarged which will have prospective operation. The very fact that the Parliament in its wisdom sought to enlarge the definition of goods by including the issue of shares by allotment as also the service is a clear point to the fact that thereby the mischief which was existing in the said provision was sought to be remedied.31. It is, therefore, axiomatic that before the said definition of "goods" was amended, the matter relating to issue of shares before allotment was not included therein.In view of the aforementioned authoritative pronouncement of this Court it must be held that shares pending allotment in view of the provisions of law as thence existed could not be said to be goods.35. For the aforementioned reasons, it is not necessary to go into the other questions raised at the Bar.36. For the views, we have taken, the judgment of the Commission cannot be found fault with.
|
Bhusawal Borough Municipality Vs. Amalgamated Electricity Company Limited & Another | in the circumstances of this case. Basing itself on a particular interpretation of the agreements regarding payment of electricity charges with respondent No. 1 the appellant claimed refund on the ground that it was not liable to pay the surcharge payable under the Surcharge Order, 1944 in respect of electrical energy consumed by it. The substantial defence of respondent No. 1 was that the dispute between it and the municipality was decided by the Government of Bombay and that under the second proviso to Cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and respondent No. 1. The relevant provisions read thus:Clause 5: "Upon the rate of the War Costs Surcharge being fixed by the Provincial Government from time to time in accordance with this order, it shall not be lawful for the licensee or sanction-holder concerned to supply energy at other than charges surcharged at the rate for the time being so fixed:* * * *Second proviso: "Provided further that no War Costs Surcharge shall be effective upon the charges for the supply of energy under any contract entered into after the 1st May 1942, unless such contract provides for the same charges for energy as have been continued in similar previous contracts for similar supply by the licensee or sanction-holder concerned (as to which in the event of dispute by any party interested, the decision of the Provincial Government shall be final) or unless as to such extent as such application may be expressly ordered by the Provincial Government.It is not disputed before us by Mr. Pathak that the decision of the Government upon the dispute is final and binding on the parties. But, according to him, it was not established by the evidence led in the trial Court that the dispute between the parties had at all been referred to the Government and that a certain communication sent by the Government to the parties, Ex. 68, dated May 22, 1946 relied upon by the respondent No. 1 contains nothing but the opinion of the Government. Mr. Pathak further urged that the proviso referred to by us purports to constitute the Government into an arbitrator and, therefore, there had to be a reference to the arbitrator by both the parties to the dispute under the provisions of the Arbitration Act, 1940. This latter point, however, had not been taken in the Courts below nor is it found in the statement of the case. We have, therefore, not permitted Mr. Pathak to rely upon it before us.4. The communication of May 22, 1946 relied upon by the first respondent runs thus:"No 6404/36-E-1(1).Public Works Department,Bombay Castle. 22nd May 1946.FromThe Secretary to the Government ofBombay, Public Works Department (Irrigation).ToThe President,The Borough Municipality Bhusawal.Subject: War Costs SurchargeDear Sir,With reference to the correspondence ending with Government letter No. 6404/36, dated the 10th May 1946 on the subject mentioned above, I am to inform you that Government has fully considered your case under the second proviso to Cl. 5 of the Bombay Electricity Supply (Licensed Under-takings War Costs) Order, 1944, and has decided that you should pay the surcharge to the Bhusawal Electricity Co. Ltd., at the rate of 15 per cent fixed in Government Order No. 6331/36 (IV), dated the 15th August 1944, unless the Company raised its rate of supply of energy for street lighting to more than 4 annas per unit.Yours faithfully,Sd/- D. N. Daruwala,for Secretary to the Govt. of Bombay.Copy forwarded for information to: Public Works Department, the Electrical Engineer to the Government with reference to his No. LRM/ 57/5260, dated the 8th March 1946. The Accountant-General, Bombay, with reference to his No. O. A. 2888, dated the 2nd February 1946. Messrs. The Bhusawal Electricity Co. Ltd., Bombay, with reference to correspondence ending with Government letter No. 6404/36-E1 (I), dated the 17th May 1946. C.C. to E.E. Bhusawal for information sent on 25th May 1946.It is obvious from this communication that both the parties, that is, the appellant as well as the respondent No. 1 had stated their respective cases before the Government. There was no occasion for them to do so unless they were both purporting to act under the second proviso to Cl. 5 of the Order of 1944. After consideration of the cases of both the parties the Government has stated in the aforesaid communication that it had decided that the municipality should pay to the Electricity Company surcharge at the rate of 15 per cent fixed in a certain Government Order unless the Company raised its rate for the supply of energy for street lighting to more than four annas per unit. There is no reason to think that what is on the face of it a decision is nothing but an opinion because if there were anything in the correspondence to which a reference is made in that letter as well as in the endorsement at the bottom which went to show that the appellant did not purport to refer any dispute to the Government, it was for the appellant to produce that correspondence. Its omission to do so must be construed against it. Then Mr. Pathak said that under the Surcharge Order itself the dispute had to be referred by both the parties and not by only one of them. This contention is, however, untenable in view of the clear language of the proviso which says: "in the event of dispute by any party interested the decision of the Provincial Government. shall be final. There is, therefore, no substance in the contention. In our opinion the trial Court and the District Court had wholly misconstrued this document which is not merely of evidentiary value but is one upon which the claim of the respondent No. 1 for the surcharge is based. Misconstruction of such document would thus be an error of law and the High Court in second appeal would be entitled to correct it. This is what in fact has been done. | 0[ds]It is obvious from this communication that both the parties, that is, the appellant as well as the respondent No. 1 had stated their respective cases before the Government. There was no occasion for them to do so unless they were both purporting to act under the second proviso to Cl. 5 of the Order of 1944. After consideration of the cases of both the parties the Government has stated in the aforesaid communication that it had decided that the municipality should pay to the Electricity Company surcharge at the rate of 15 per cent fixed in a certain Government Order unless the Company raised its rate for the supply of energy for street lighting to more than four annas per unit. There is no reason to think that what is on the face of it a decision is nothing but an opinion because if there were anything in the correspondence to which a reference is made in that letter as well as in the endorsement at the bottom which went to show that the appellant did not purport to refer any dispute to the Government, it was for the appellant to produce that correspondence. Its omission to do so must be construed against it. Then Mr. Pathak said that under the Surcharge Order itself the dispute had to be referred by both the parties and not by only one of them. This contention is, however, untenable in view of the clear language of the proviso which says: "in the event of dispute by any party interested the decision of the Provincial Government. shall be final. There is, therefore, no substance in the contention. In our opinion the trial Court and the District Court had wholly misconstrued this document which is not merely of evidentiary value but is one upon which the claim of the respondent No. 1 for the surcharge is based. Misconstruction of such document would thus be an error of law and the High Court in second appeal would be entitled to correct it. This is what in fact has been done. | 0 | 1,506 | 373 | ### Instruction:
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in the circumstances of this case. Basing itself on a particular interpretation of the agreements regarding payment of electricity charges with respondent No. 1 the appellant claimed refund on the ground that it was not liable to pay the surcharge payable under the Surcharge Order, 1944 in respect of electrical energy consumed by it. The substantial defence of respondent No. 1 was that the dispute between it and the municipality was decided by the Government of Bombay and that under the second proviso to Cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and respondent No. 1. The relevant provisions read thus:Clause 5: "Upon the rate of the War Costs Surcharge being fixed by the Provincial Government from time to time in accordance with this order, it shall not be lawful for the licensee or sanction-holder concerned to supply energy at other than charges surcharged at the rate for the time being so fixed:* * * *Second proviso: "Provided further that no War Costs Surcharge shall be effective upon the charges for the supply of energy under any contract entered into after the 1st May 1942, unless such contract provides for the same charges for energy as have been continued in similar previous contracts for similar supply by the licensee or sanction-holder concerned (as to which in the event of dispute by any party interested, the decision of the Provincial Government shall be final) or unless as to such extent as such application may be expressly ordered by the Provincial Government.It is not disputed before us by Mr. Pathak that the decision of the Government upon the dispute is final and binding on the parties. But, according to him, it was not established by the evidence led in the trial Court that the dispute between the parties had at all been referred to the Government and that a certain communication sent by the Government to the parties, Ex. 68, dated May 22, 1946 relied upon by the respondent No. 1 contains nothing but the opinion of the Government. Mr. Pathak further urged that the proviso referred to by us purports to constitute the Government into an arbitrator and, therefore, there had to be a reference to the arbitrator by both the parties to the dispute under the provisions of the Arbitration Act, 1940. This latter point, however, had not been taken in the Courts below nor is it found in the statement of the case. We have, therefore, not permitted Mr. Pathak to rely upon it before us.4. The communication of May 22, 1946 relied upon by the first respondent runs thus:"No 6404/36-E-1(1).Public Works Department,Bombay Castle. 22nd May 1946.FromThe Secretary to the Government ofBombay, Public Works Department (Irrigation).ToThe President,The Borough Municipality Bhusawal.Subject: War Costs SurchargeDear Sir,With reference to the correspondence ending with Government letter No. 6404/36, dated the 10th May 1946 on the subject mentioned above, I am to inform you that Government has fully considered your case under the second proviso to Cl. 5 of the Bombay Electricity Supply (Licensed Under-takings War Costs) Order, 1944, and has decided that you should pay the surcharge to the Bhusawal Electricity Co. Ltd., at the rate of 15 per cent fixed in Government Order No. 6331/36 (IV), dated the 15th August 1944, unless the Company raised its rate of supply of energy for street lighting to more than 4 annas per unit.Yours faithfully,Sd/- D. N. Daruwala,for Secretary to the Govt. of Bombay.Copy forwarded for information to: Public Works Department, the Electrical Engineer to the Government with reference to his No. LRM/ 57/5260, dated the 8th March 1946. The Accountant-General, Bombay, with reference to his No. O. A. 2888, dated the 2nd February 1946. Messrs. The Bhusawal Electricity Co. Ltd., Bombay, with reference to correspondence ending with Government letter No. 6404/36-E1 (I), dated the 17th May 1946. C.C. to E.E. Bhusawal for information sent on 25th May 1946.It is obvious from this communication that both the parties, that is, the appellant as well as the respondent No. 1 had stated their respective cases before the Government. There was no occasion for them to do so unless they were both purporting to act under the second proviso to Cl. 5 of the Order of 1944. After consideration of the cases of both the parties the Government has stated in the aforesaid communication that it had decided that the municipality should pay to the Electricity Company surcharge at the rate of 15 per cent fixed in a certain Government Order unless the Company raised its rate for the supply of energy for street lighting to more than four annas per unit. There is no reason to think that what is on the face of it a decision is nothing but an opinion because if there were anything in the correspondence to which a reference is made in that letter as well as in the endorsement at the bottom which went to show that the appellant did not purport to refer any dispute to the Government, it was for the appellant to produce that correspondence. Its omission to do so must be construed against it. Then Mr. Pathak said that under the Surcharge Order itself the dispute had to be referred by both the parties and not by only one of them. This contention is, however, untenable in view of the clear language of the proviso which says: "in the event of dispute by any party interested the decision of the Provincial Government. shall be final. There is, therefore, no substance in the contention. In our opinion the trial Court and the District Court had wholly misconstrued this document which is not merely of evidentiary value but is one upon which the claim of the respondent No. 1 for the surcharge is based. Misconstruction of such document would thus be an error of law and the High Court in second appeal would be entitled to correct it. This is what in fact has been done.
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It is obvious from this communication that both the parties, that is, the appellant as well as the respondent No. 1 had stated their respective cases before the Government. There was no occasion for them to do so unless they were both purporting to act under the second proviso to Cl. 5 of the Order of 1944. After consideration of the cases of both the parties the Government has stated in the aforesaid communication that it had decided that the municipality should pay to the Electricity Company surcharge at the rate of 15 per cent fixed in a certain Government Order unless the Company raised its rate for the supply of energy for street lighting to more than four annas per unit. There is no reason to think that what is on the face of it a decision is nothing but an opinion because if there were anything in the correspondence to which a reference is made in that letter as well as in the endorsement at the bottom which went to show that the appellant did not purport to refer any dispute to the Government, it was for the appellant to produce that correspondence. Its omission to do so must be construed against it. Then Mr. Pathak said that under the Surcharge Order itself the dispute had to be referred by both the parties and not by only one of them. This contention is, however, untenable in view of the clear language of the proviso which says: "in the event of dispute by any party interested the decision of the Provincial Government. shall be final. There is, therefore, no substance in the contention. In our opinion the trial Court and the District Court had wholly misconstrued this document which is not merely of evidentiary value but is one upon which the claim of the respondent No. 1 for the surcharge is based. Misconstruction of such document would thus be an error of law and the High Court in second appeal would be entitled to correct it. This is what in fact has been done.
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United Commercial Bank Ltd Vs. Secretary, U.P. Bank Employees Union & Others | orders now.3. The relevant terms of the present order may be set out hereunder :"AND WHEREAS a further industrial dispute has arisen after 13-6-1949 or is apprehended between the banking companies mentioned in Sch. I annexed hereto and their employees in respect of matters specified in Sch. II hereto annexed :AND WHEREAS the Central Government considers it desirable to refer the further dispute for adjudication :NOW, therefore, in exercise of the powers conferred by cl, (c) of sub-s. (1) of S. 10, Industrial Disputes Act, 1947 (14 of 1947), the Central Government is pleased to refer the said dispute for adjudication to the Industrial Tribunal at Calcutta, constituted under S. 7 of the said Act."4. Sch II comprises two items, and underneath the second item is the note,"This list is not intended to be exhaustive."The first item is"Retrenchment, discharge, or dismissal of workmen after 13-6-1949."In pursuance of the reference, which was numbered 21 of 1950, the Industrial Tribunal at Calcutta gave directions on 24-2-1950 to the appellant Bank on the one hand and their employees on the other to file their statement of claims concerning the matters referred to adjudication on 15-3-1950. The General Secretary of the U.P.P. Bank Employee Union filed a petition before the Tribunal on 3-6-50 complaining of the victimisation of six employees who are respondents 2 to 7 in this appeal. It was alleged in the petition that their services were improperly terminated by the adoption of a device, namely, that of getting the new treasurer appointed by the Bank to say that he had no. confidence in these employees, whom he did not know previously, and that he wanted them to be substituted by his own men. The other allegations made in the petition are irrelevant for purposes of this appeal. The Bank contended that they were not cases of victimisation at all but of termination of services as a sequence to the resignation of the treasurership of the Agra Branch by the treasurers, Messrs. Radhakishan Baijnath which rendered the closure of the Branch necessary for want of a suitable new treasurer. The Bank repudiated the allegation of the Union that the employees were discharged from service because of their trade union activities.5. The Industrial Tribunal at Calcutta went into the question thus raised, and held that the respondents were employees of the Bank and not nominees of the treasurer, and that the order of their discharge on the mere ground that the new treasurer Sri Chundrimani was not willing to stand guarantee for them was bad in law. It directed their reinstatement with three months back pay and allowances. The Bank carried the matter on appeal before the Appellate Tribunal but failed.6. Mr. C. K. Daphtary, who appeared for the appellant Bank in this Court, conceded that the respondents might be treated as servants of the Bank and not the treasurers or the Chief Cashiers nominees. He urged two grounds before us. The first was one of jurisdiction. He contended that as the dispute in question did not exist or could not have bean apprehended before 1-4-1950 when the new treasurer, Sri Chundrimani, assumed charge of the duties of his office, the order of reference dated 21-2-1950 could not have comprised any such dispute, and the Tribunal had therefore no. jurisdiction to decide the same. Sri Chundrimani was appointed on the 20th March and entered on his duties on the lst April. The termination of the services of the respondents took place on the latter date, and according to the learned counsel, the dispute could be said to have arisen only when they were discharged. The second point was that even if the Tribunal had jurisdiction and was right in its view that the services were improperly terminated, it was a case for the award of compensation and not reinstatement,7. What exactly is the meaning of the words "apprehended dispute" occurring in S. 10, Industrial Disputes Act, whose apprehension is referred to in the Act-the Governments or the parties or any one elses, what is to happen if the apprehension does not crystallise into an actual dispute before the Tribunal enters on its duties as regards the reference, is the Tribunal bound even then to make note of the mere apprehension and proceed to decide a dispute notwithstanding the fact that the parties say that there is no. dispute between them- are interesting questions of wide import ; but they do not fall to be decided in this appeal for a simple reason which we shall state presently. The point as to jurisdiction was not taken by the Bank before the Industrial Tribunal. Had it been raised, the Court could have investigated whether a dispute had actually arisen on the date of reference or was at least apprehended. As a matter of fact, it is urged for the employees that on the Banks own showing, a dispute had arisen much earlier about the likely termination of the services of the respondents on the ground of the old treasurer resigning and the difficulty of finding a new treasurer rendering it necessary to close the Agra Branch; reference was made in this connection to Annexure II at page 70 of the paper Book setting out the application dated 23-2-l950 of the Bank to the Tribunal signed by the General Manager. It will thus be seen that the point as to jurisdiction is not a pure question of law; it is mingled with facts. The Bank cannot, in the circumstances, be allowed to raise it for the first time at the stage of appeal.8. There is no substance in the second point. It was not raised in the application for special leave to this Court. Whether a discharged employee is to be reinstated in service, or whether compensation would be an adequate relief, is a matter of discretion. The original Tribunal considered reinstatement proper; and with this view the Appellate Tribunal agreed. There are no. reasons for interference by this Court with the exercise of that discretion. | 0[ds]7. What exactly is the meaning of the words "apprehended dispute" occurring in S. 10, Industrial Disputes Act, whose apprehension is referred to in theGovernments or the parties or any one elses, what is to happen if the apprehension does not crystallise into an actual dispute before the Tribunal enters on its duties as regards the reference, is the Tribunal bound even then to make note of the mere apprehension and proceed to decide a dispute notwithstanding the fact that the parties say that there is no. dispute between themare interesting questions of wide import ; but they do not fall to be decided in this appeal for a simple reason which we shall state presently. The point as to jurisdiction was not taken by the Bank before the Industrial Tribunal. Had it been raised, the Court could have investigated whether a dispute had actually arisen on the date of reference or was at least apprehended. As a matter of fact, it is urged for the employees that on the Banks own showing, a dispute had arisen much earlier about the likely termination of the services of the respondents on the ground of the old treasurer resigning and the difficulty of finding a new treasurer rendering it necessary to close the Agra Branch; reference was made in this connection to Annexure II at page 70 of the paper Book setting out the application datedof the Bank to the Tribunal signed by the General Manager. It will thus be seen that the point as to jurisdiction is not a pure question of law; it is mingled with facts. The Bank cannot, in the circumstances, be allowed to raise it for the first time at the stage of appeal.8. There is no substance in the second point. It was not raised in the application for special leave to this Court. Whether a discharged employee is to be reinstated in service, or whether compensation would be an adequate relief, is a matter of discretion. The original Tribunal considered reinstatement proper; and with this view the Appellate Tribunal agreed. There are no. reasons for interference by this Court with the exercise of that discretion. | 0 | 1,204 | 395 | ### Instruction:
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orders now.3. The relevant terms of the present order may be set out hereunder :"AND WHEREAS a further industrial dispute has arisen after 13-6-1949 or is apprehended between the banking companies mentioned in Sch. I annexed hereto and their employees in respect of matters specified in Sch. II hereto annexed :AND WHEREAS the Central Government considers it desirable to refer the further dispute for adjudication :NOW, therefore, in exercise of the powers conferred by cl, (c) of sub-s. (1) of S. 10, Industrial Disputes Act, 1947 (14 of 1947), the Central Government is pleased to refer the said dispute for adjudication to the Industrial Tribunal at Calcutta, constituted under S. 7 of the said Act."4. Sch II comprises two items, and underneath the second item is the note,"This list is not intended to be exhaustive."The first item is"Retrenchment, discharge, or dismissal of workmen after 13-6-1949."In pursuance of the reference, which was numbered 21 of 1950, the Industrial Tribunal at Calcutta gave directions on 24-2-1950 to the appellant Bank on the one hand and their employees on the other to file their statement of claims concerning the matters referred to adjudication on 15-3-1950. The General Secretary of the U.P.P. Bank Employee Union filed a petition before the Tribunal on 3-6-50 complaining of the victimisation of six employees who are respondents 2 to 7 in this appeal. It was alleged in the petition that their services were improperly terminated by the adoption of a device, namely, that of getting the new treasurer appointed by the Bank to say that he had no. confidence in these employees, whom he did not know previously, and that he wanted them to be substituted by his own men. The other allegations made in the petition are irrelevant for purposes of this appeal. The Bank contended that they were not cases of victimisation at all but of termination of services as a sequence to the resignation of the treasurership of the Agra Branch by the treasurers, Messrs. Radhakishan Baijnath which rendered the closure of the Branch necessary for want of a suitable new treasurer. The Bank repudiated the allegation of the Union that the employees were discharged from service because of their trade union activities.5. The Industrial Tribunal at Calcutta went into the question thus raised, and held that the respondents were employees of the Bank and not nominees of the treasurer, and that the order of their discharge on the mere ground that the new treasurer Sri Chundrimani was not willing to stand guarantee for them was bad in law. It directed their reinstatement with three months back pay and allowances. The Bank carried the matter on appeal before the Appellate Tribunal but failed.6. Mr. C. K. Daphtary, who appeared for the appellant Bank in this Court, conceded that the respondents might be treated as servants of the Bank and not the treasurers or the Chief Cashiers nominees. He urged two grounds before us. The first was one of jurisdiction. He contended that as the dispute in question did not exist or could not have bean apprehended before 1-4-1950 when the new treasurer, Sri Chundrimani, assumed charge of the duties of his office, the order of reference dated 21-2-1950 could not have comprised any such dispute, and the Tribunal had therefore no. jurisdiction to decide the same. Sri Chundrimani was appointed on the 20th March and entered on his duties on the lst April. The termination of the services of the respondents took place on the latter date, and according to the learned counsel, the dispute could be said to have arisen only when they were discharged. The second point was that even if the Tribunal had jurisdiction and was right in its view that the services were improperly terminated, it was a case for the award of compensation and not reinstatement,7. What exactly is the meaning of the words "apprehended dispute" occurring in S. 10, Industrial Disputes Act, whose apprehension is referred to in the Act-the Governments or the parties or any one elses, what is to happen if the apprehension does not crystallise into an actual dispute before the Tribunal enters on its duties as regards the reference, is the Tribunal bound even then to make note of the mere apprehension and proceed to decide a dispute notwithstanding the fact that the parties say that there is no. dispute between them- are interesting questions of wide import ; but they do not fall to be decided in this appeal for a simple reason which we shall state presently. The point as to jurisdiction was not taken by the Bank before the Industrial Tribunal. Had it been raised, the Court could have investigated whether a dispute had actually arisen on the date of reference or was at least apprehended. As a matter of fact, it is urged for the employees that on the Banks own showing, a dispute had arisen much earlier about the likely termination of the services of the respondents on the ground of the old treasurer resigning and the difficulty of finding a new treasurer rendering it necessary to close the Agra Branch; reference was made in this connection to Annexure II at page 70 of the paper Book setting out the application dated 23-2-l950 of the Bank to the Tribunal signed by the General Manager. It will thus be seen that the point as to jurisdiction is not a pure question of law; it is mingled with facts. The Bank cannot, in the circumstances, be allowed to raise it for the first time at the stage of appeal.8. There is no substance in the second point. It was not raised in the application for special leave to this Court. Whether a discharged employee is to be reinstated in service, or whether compensation would be an adequate relief, is a matter of discretion. The original Tribunal considered reinstatement proper; and with this view the Appellate Tribunal agreed. There are no. reasons for interference by this Court with the exercise of that discretion.
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7. What exactly is the meaning of the words "apprehended dispute" occurring in S. 10, Industrial Disputes Act, whose apprehension is referred to in theGovernments or the parties or any one elses, what is to happen if the apprehension does not crystallise into an actual dispute before the Tribunal enters on its duties as regards the reference, is the Tribunal bound even then to make note of the mere apprehension and proceed to decide a dispute notwithstanding the fact that the parties say that there is no. dispute between themare interesting questions of wide import ; but they do not fall to be decided in this appeal for a simple reason which we shall state presently. The point as to jurisdiction was not taken by the Bank before the Industrial Tribunal. Had it been raised, the Court could have investigated whether a dispute had actually arisen on the date of reference or was at least apprehended. As a matter of fact, it is urged for the employees that on the Banks own showing, a dispute had arisen much earlier about the likely termination of the services of the respondents on the ground of the old treasurer resigning and the difficulty of finding a new treasurer rendering it necessary to close the Agra Branch; reference was made in this connection to Annexure II at page 70 of the paper Book setting out the application datedof the Bank to the Tribunal signed by the General Manager. It will thus be seen that the point as to jurisdiction is not a pure question of law; it is mingled with facts. The Bank cannot, in the circumstances, be allowed to raise it for the first time at the stage of appeal.8. There is no substance in the second point. It was not raised in the application for special leave to this Court. Whether a discharged employee is to be reinstated in service, or whether compensation would be an adequate relief, is a matter of discretion. The original Tribunal considered reinstatement proper; and with this view the Appellate Tribunal agreed. There are no. reasons for interference by this Court with the exercise of that discretion.
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Oriental Insurance Co. Ltd Vs. Sorumal Gogoi | death had occurred to Bipul Gogoi in an accident arising out of or in course of employment. If some miscreants have taken away the driver along with the vehicle or has murdered him, it is an offence. It, except in certain situations, does not give rise to a presumption that the death had occurred arising out or in the course of an employment. Some evidence should have been adduced in that behalf. If the version brought on records by the police was correct, namely, he had himself ran away with the vehicle and had not been heard for a period of seven years, particularly, when he had been declared a proclaimed offender by a Court of law, presumption under Section 108 of the Evidence Act could have been invoked by the criminal court for dropping the criminal case that he is dead. In our opinion, in a case of this nature, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on records. Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice nor evade a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self serving statements made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent court of law on the basis thereof. Section 3 of the 1923 Act would be attracted only when the conditions precedent therefor are fulfilled and not otherwise.18. The view which we have taken find support from a judgment of this Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Hameed Issak [(1969) 2 SCC 607] , holding: “To come within the Act the injury by accident must arise both out of and in the course of employment. The words ‘in the course of the employment’ mean ‘in the course of the work which the workman is employed to do and which is incidental to it.’ The words ‘arising out of employment’ are understood to mean that -during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered.’ In other words there must be a causal relationship between the accident and the employment. The expression ‘arising out of employment- is again not confined to the mere nature of the employment. The expression applies to employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises ‘out of employment’.” 19. In Jyothi Ademma v. Plant Engineer, Nellore & Anr. [(2006) 5 SCC 513] also this Court held: “6. Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.7. The expression ‘accident’ means an untoward mishap which is not expected or designed. ‘Injury’ means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly as follows:“I think that the context shows that in using the word ‘designed’ Lord Macnaghten was referring to designed by the sufferer’.” 20. Furthermore, the rights of the parties were required to be determined as on the date of the incident, namely, 9.10.1996. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim, save and except in very exceptional cases.21. In Kerala State Electricity Board & Anr. v. Valsaka K. & Anr. [(1999) 8 SCC 254] , this Court held: “Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim.” {[See also Oriental Insurance Co. Ltd. v. Khajuni Devi & Ors. [(2002) 10 SCC 567] .22. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. | 1[ds]16. The sine qua non for invoking the proviso appended to Section 147 is that the employee must be engaged in driving the vehicle. Death or bodily injury must occur arising out of or in the course of his employment. The 1923 Act or the 1988 Act, therefore, would be applicable only if the conditions precedent laid down thereunder are satisfied.17. The employer lodged a first information report against Bipul Gogoi. A charge sheet was also filed. There is nothing on record to show that the death had occurred to Bipul Gogoi in an accident arising out of or in course of employment. If some miscreants have taken away the driver along with the vehicle or has murdered him, it is an offence. It, except in certain situations, does not give rise to a presumption that the death had occurred arising out or in the course of an employment. Some evidence should have been adduced in that behalf. If the version brought on records by the police was correct, namely, he had himself ran away with the vehicle and had not been heard for a period of seven years, particularly, when he had been declared a proclaimed offender by a Court of law, presumption under Section 108 of the Evidence Act could have been invoked by the criminal court for dropping the criminal case that he is dead. In our opinion, in a case of this nature, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on records. Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice nor evade a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self serving statements made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent court of law on the basis thereof. Section 3 of the 1923 Act would be attracted only when the conditions precedent therefor are fulfilled and not otherwise.18. The view which we have taken find support from a judgment of this Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Hameed Issak [(1969) 2 SCC 607] ,come within the Act the injury by accident must arise both out of and in the course of employment. The words ‘in the course of themean ‘in the course of the work which the workman is employed to do and which is incidental toThe words ‘arising out ofare understood to mean that -during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise haveIn Jyothi Ademma v. Plant Engineer, Nellore & Anr. [(2006) 5 SCC 513] also this CourtUnder Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.7. The expressionmeans an untoward mishap which is not expected or designed.means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expressionis used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly asthink that the context shows that in using the wordFurthermore, the rights of the parties were required to be determined as on the date of the incident, namely, 9.10.1996. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim, save and except in very exceptional cases.21. In Kerala State Electricity Board & Anr. v. Valsaka K. & Anr. [(1999) 8 SCC 254] , this Courtthe relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of thealso Oriental Insurance Co. Ltd. v. Khajuni Devi & Ors. [(2002) 10 SCC 567] .22. For the reasons aforementioned, the impugned judgment cannot be sustained.is set aside accordingly. | 1 | 2,701 | 1,059 | ### Instruction:
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death had occurred to Bipul Gogoi in an accident arising out of or in course of employment. If some miscreants have taken away the driver along with the vehicle or has murdered him, it is an offence. It, except in certain situations, does not give rise to a presumption that the death had occurred arising out or in the course of an employment. Some evidence should have been adduced in that behalf. If the version brought on records by the police was correct, namely, he had himself ran away with the vehicle and had not been heard for a period of seven years, particularly, when he had been declared a proclaimed offender by a Court of law, presumption under Section 108 of the Evidence Act could have been invoked by the criminal court for dropping the criminal case that he is dead. In our opinion, in a case of this nature, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on records. Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice nor evade a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self serving statements made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent court of law on the basis thereof. Section 3 of the 1923 Act would be attracted only when the conditions precedent therefor are fulfilled and not otherwise.18. The view which we have taken find support from a judgment of this Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Hameed Issak [(1969) 2 SCC 607] , holding: “To come within the Act the injury by accident must arise both out of and in the course of employment. The words ‘in the course of the employment’ mean ‘in the course of the work which the workman is employed to do and which is incidental to it.’ The words ‘arising out of employment’ are understood to mean that -during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered.’ In other words there must be a causal relationship between the accident and the employment. The expression ‘arising out of employment- is again not confined to the mere nature of the employment. The expression applies to employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises ‘out of employment’.” 19. In Jyothi Ademma v. Plant Engineer, Nellore & Anr. [(2006) 5 SCC 513] also this Court held: “6. Under Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.7. The expression ‘accident’ means an untoward mishap which is not expected or designed. ‘Injury’ means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly as follows:“I think that the context shows that in using the word ‘designed’ Lord Macnaghten was referring to designed by the sufferer’.” 20. Furthermore, the rights of the parties were required to be determined as on the date of the incident, namely, 9.10.1996. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim, save and except in very exceptional cases.21. In Kerala State Electricity Board & Anr. v. Valsaka K. & Anr. [(1999) 8 SCC 254] , this Court held: “Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim.” {[See also Oriental Insurance Co. Ltd. v. Khajuni Devi & Ors. [(2002) 10 SCC 567] .22. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly.
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### Explanation:
16. The sine qua non for invoking the proviso appended to Section 147 is that the employee must be engaged in driving the vehicle. Death or bodily injury must occur arising out of or in the course of his employment. The 1923 Act or the 1988 Act, therefore, would be applicable only if the conditions precedent laid down thereunder are satisfied.17. The employer lodged a first information report against Bipul Gogoi. A charge sheet was also filed. There is nothing on record to show that the death had occurred to Bipul Gogoi in an accident arising out of or in course of employment. If some miscreants have taken away the driver along with the vehicle or has murdered him, it is an offence. It, except in certain situations, does not give rise to a presumption that the death had occurred arising out or in the course of an employment. Some evidence should have been adduced in that behalf. If the version brought on records by the police was correct, namely, he had himself ran away with the vehicle and had not been heard for a period of seven years, particularly, when he had been declared a proclaimed offender by a Court of law, presumption under Section 108 of the Evidence Act could have been invoked by the criminal court for dropping the criminal case that he is dead. In our opinion, in a case of this nature, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on records. Sections 108 and 109 of the Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until contrary is established by evidence either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice nor evade a trial or is otherwise charged for commission of a grave offence as he in that situation may not communicate with his relations. Furthermore in a case of this nature, it is also difficult to rely upon a self serving statements made by the claimants that they had not heard of their son for a period of seven years. The Commissioner of Workmen Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet which was filed upon investigation that Bipul Gogoi himself had run away with the vehicle would not be a relevant fact, particularly, when cognizance had been taken by a competent court of law on the basis thereof. Section 3 of the 1923 Act would be attracted only when the conditions precedent therefor are fulfilled and not otherwise.18. The view which we have taken find support from a judgment of this Court in Mackinnon Machenzie & Co. (P) Ltd. v. Ibrahim Hameed Issak [(1969) 2 SCC 607] ,come within the Act the injury by accident must arise both out of and in the course of employment. The words ‘in the course of themean ‘in the course of the work which the workman is employed to do and which is incidental toThe words ‘arising out ofare understood to mean that -during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise haveIn Jyothi Ademma v. Plant Engineer, Nellore & Anr. [(2006) 5 SCC 513] also this CourtUnder Section 3(1) it has to be established that there was some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be liable.7. The expressionmeans an untoward mishap which is not expected or designed.means physiological injury. In Fenton v. Thorley & Co. Ltd. it was observed that the expressionis used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane, A.C. in Trim Joint District School Board of Management v. Kelly asthink that the context shows that in using the wordFurthermore, the rights of the parties were required to be determined as on the date of the incident, namely, 9.10.1996. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim, save and except in very exceptional cases.21. In Kerala State Electricity Board & Anr. v. Valsaka K. & Anr. [(1999) 8 SCC 254] , this Courtthe relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of thealso Oriental Insurance Co. Ltd. v. Khajuni Devi & Ors. [(2002) 10 SCC 567] .22. For the reasons aforementioned, the impugned judgment cannot be sustained.is set aside accordingly.
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Workmen of Sudder Workshop of Jorehaut Tea Company Limited Vs. Its Management and Vice-Versa | retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.6. The key-note thought of the provision, even on a bare reading, is evident. The rule is that the employer shall retrench the workman who came last, first, popularly known as last come first go. Of course it is not an inflexible rule and extra-ordinary situations may justify variations. For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched. There must be a valid reason for this deviation, and obviously, the burden is on the Management to substantiate the special ground for departure from the rule.7. Shri Phadke brought to our notice the decision in M/s Om Oil &Oilseeds Exchange Ltd., Delhi v. Their Workmen to make out that it was not a universal principle which could not be departed from by the Management that the last should go first. The Management had a discretion provided it acted bona fide and on good grounds. Shah, J. in that very ruling, while agreeing that a breach of the rule could not be assumed as prompted by mal a fides or induced by unfair labour practice merely because of a departure or deviation, further observed that the Tribunal had to determine in each case whether the Management had acted fairly and not with ulterior motive. The crucial consideration next mentioned by the learned Judge is that the Managements decision to depart from the rule must be for valid and justifiable reasons, in which case "the senior employee may be retrenched before his junior in employment." Surely, valid and justifiable reasons are for the Management to make out, and if made out, s. 25G will be vindicated and not violated. Indeed, that very decision stresses the necessity for valid and good ground for varying the ordinary rule of last come first go. There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance with s. 25G grade-wise. Absence of mala fides by itself is no absolution from the rule in s. 25G. Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the last come first go principle.8. It must be remembered that the above provision which we have quoted insists on the rule being applied category-wise. That is to say, those who fall in the same category shall suffer retrenchment only in accordance with the principle of last come first go. The short point raised is that the seven workmen are not in the same category. The finding of the Tribunal, concurred in by the High Court is that they fell in the same category. We quote the award:"It will be seen that when there is no trade test or anything to mark efficiency, there is no basis for placing the workmen in different grades and when all the workmen of the same category are to do the same work inasmuch as by the managements own evidence there is no grade wise allocation of duty within the same category. Although in the evidence the Management wanted to justify their departure from the principle of last come first go there is nothing to show that such a reason was recorded for deviating from the principle. In the circumstances of the case it cannot be said that the managements selection of persons to be retrenched leaving the junior most in some category was justified and the reason now adduced for deviating from the principle cannot be accepted in the absence of the reason being not recorded at the time of retrenchment. Further it will be also noticed that although there is classification of workmen into grades (?) within the category, there is nothing to distinguish one workman of one grade from another workman of another Grade inasmuch as there is no allocation of duties amongst the workmen of different Grades in the category."9. The seniority list is the same, which is a telling circumstance to s how that they fell in the same category. Grading for purposes of scales of pay and like considerations will not create new categorisation. It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. This fallacy has been rightly negatived by a detailed discussion in the Award. The High Court has avoided the pitfall and we decline to accept the submission. The result is that the Award must hold good in regard to the illegally retrenched seven workmen.10. What remains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these s even workmen are to be reinstated is no longer in existence. Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law. He, therefore, pleads for moulding the relief less harshly.11. We cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend t heir pittance. The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicial process.12. Misplaced sympathy is mirage justice. We cannot agree. Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court. | 0[ds]The seniority list is the same, which is a telling circumstance to s how that they fell in the same category. Grading for purposes of scales of pay and like considerations will not create new categorisation. It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. This fallacy has been rightly negatived by a detailed discussion in the Award. The High Court has avoided the pitfall and we decline to accept the submission. The result is that the Award must hold good in regard to the illegally retrenched sevenremains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these s even workmen are to be reinstated is no longer in existence. Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law. He, therefore, pleads for moulding the relief lesscannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend t heir pittance. The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicialsympathy is mirage justice. We cannot agree. Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court. | 0 | 2,160 | 346 | ### Instruction:
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retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.6. The key-note thought of the provision, even on a bare reading, is evident. The rule is that the employer shall retrench the workman who came last, first, popularly known as last come first go. Of course it is not an inflexible rule and extra-ordinary situations may justify variations. For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched. There must be a valid reason for this deviation, and obviously, the burden is on the Management to substantiate the special ground for departure from the rule.7. Shri Phadke brought to our notice the decision in M/s Om Oil &Oilseeds Exchange Ltd., Delhi v. Their Workmen to make out that it was not a universal principle which could not be departed from by the Management that the last should go first. The Management had a discretion provided it acted bona fide and on good grounds. Shah, J. in that very ruling, while agreeing that a breach of the rule could not be assumed as prompted by mal a fides or induced by unfair labour practice merely because of a departure or deviation, further observed that the Tribunal had to determine in each case whether the Management had acted fairly and not with ulterior motive. The crucial consideration next mentioned by the learned Judge is that the Managements decision to depart from the rule must be for valid and justifiable reasons, in which case "the senior employee may be retrenched before his junior in employment." Surely, valid and justifiable reasons are for the Management to make out, and if made out, s. 25G will be vindicated and not violated. Indeed, that very decision stresses the necessity for valid and good ground for varying the ordinary rule of last come first go. There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance with s. 25G grade-wise. Absence of mala fides by itself is no absolution from the rule in s. 25G. Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the last come first go principle.8. It must be remembered that the above provision which we have quoted insists on the rule being applied category-wise. That is to say, those who fall in the same category shall suffer retrenchment only in accordance with the principle of last come first go. The short point raised is that the seven workmen are not in the same category. The finding of the Tribunal, concurred in by the High Court is that they fell in the same category. We quote the award:"It will be seen that when there is no trade test or anything to mark efficiency, there is no basis for placing the workmen in different grades and when all the workmen of the same category are to do the same work inasmuch as by the managements own evidence there is no grade wise allocation of duty within the same category. Although in the evidence the Management wanted to justify their departure from the principle of last come first go there is nothing to show that such a reason was recorded for deviating from the principle. In the circumstances of the case it cannot be said that the managements selection of persons to be retrenched leaving the junior most in some category was justified and the reason now adduced for deviating from the principle cannot be accepted in the absence of the reason being not recorded at the time of retrenchment. Further it will be also noticed that although there is classification of workmen into grades (?) within the category, there is nothing to distinguish one workman of one grade from another workman of another Grade inasmuch as there is no allocation of duties amongst the workmen of different Grades in the category."9. The seniority list is the same, which is a telling circumstance to s how that they fell in the same category. Grading for purposes of scales of pay and like considerations will not create new categorisation. It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. This fallacy has been rightly negatived by a detailed discussion in the Award. The High Court has avoided the pitfall and we decline to accept the submission. The result is that the Award must hold good in regard to the illegally retrenched seven workmen.10. What remains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these s even workmen are to be reinstated is no longer in existence. Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law. He, therefore, pleads for moulding the relief less harshly.11. We cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend t heir pittance. The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicial process.12. Misplaced sympathy is mirage justice. We cannot agree. Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court.
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### Explanation:
The seniority list is the same, which is a telling circumstance to s how that they fell in the same category. Grading for purposes of scales of pay and like considerations will not create new categorisation. It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories. This fallacy has been rightly negatived by a detailed discussion in the Award. The High Court has avoided the pitfall and we decline to accept the submission. The result is that the Award must hold good in regard to the illegally retrenched sevenremains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these s even workmen are to be reinstated is no longer in existence. Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law. He, therefore, pleads for moulding the relief lesscannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble. The Award had given convincing reasons for reinstatement and even reduced the back wages to half. Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend t heir pittance. The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicialsympathy is mirage justice. We cannot agree. Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court.
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Sheikh Abdul Sattar Vs. Union of India | that the said officer had not sanctioned enhancement of contract rates.The appellant s plea in question would therefore have to be considered to have been traversed though we cannot complement the respondent or its law officer entrusted with the task of drafting the written statement for the manner in which it was drafted.10. We now turn to the evidence on this point. From the printed document described as acceptance of tender (Ex. C) it is not possible for us to know with certainty as to who was the officer sanctioning the contract. The original is not available on the record in this Court, with the result that we do not have the advantage of having a look at it. The appellant s counsel suggested that it was B. R. I. A. S. C., whereas, according to the respondent s counsel it was Major General A. V. Hammond, D. S. O. I. A.11. Let us see whether oral evidence throws any light on it. Moti Ram Dingra, Subedar in the army appeared as witness for the defendant. He was Superintendent, Contract Section in the office of C. A. S. C., U. P. Area, Lucknow. In cross-examination he stated as follows:"A Tribunal is only a recommending authority and not a sanctioning authority. Lucknow is the headquarter of the U. P. Area. The area commander used to be called District Commander previously. The C. R. I. A. S. C. is the administration officer of the Royal Indian Army Service Corps. The area officer at Lucknow is the Commander U. P. Area. Ranchi is the headquarter of Eastern Command. The Commander, Eastern Command is called the army Commander. The B. R. I. A. S. C. is under the army Commander and deals with R. I. A. S. C. matters. The final recommending authority for the enhancement of rates is the Area Commander, Lucknow. He is the sanctioning authority for the enhancement of rates and also of the contract itself upto the amount of rupees three lakhs. For contracts of over three lakhs he recommends the enhancement to the B. R. I. A. S. C. and it is he who sanctions the contract. Before sanctioning enhancement of rates in respect of contracts valued at over three lakhs he takes the advice of the Controller of Military Accounts. I cannot say if the contract of Abdul Sattar was over three lakhs, but as it was sanctioned by the Commander of Lucknow District it should be within the value of Rs. 3,00,000. The matter of enhancement of rates of Abdul Sattar was referred to the B. R. I. A. S. C."12. The witness thereafter expressed ignorance as to whether in the instant case the B. R. I. A. S. C. took advice of the C. M. A. or sought the opinion of the Legal Remembrancer. He also admitted in his cross-examination that his statement that the appellant s claim had been rejected was based only on a letter produced in this case and that he had no other source of information. According to his testimony the matter of enhancement of rates was referred to the B. R. I. A. S. C. who was the higher authority than the Area Commander, Lucknow. Our attention was not drawn on behalf of the respondent to any other evidence on the record which would indicate that the B. R. I. A. S. C. was not the authority sanctioning the contract. We, therefore, hold in disagreement with the High Court that B. R. I. A. S. C. is the authority sanctioning the contract.13. Now on the present record there can be little doubt that the B. R. I. A. S. C. had recommended the enhancement of rates in respect of the appellant s contract. If, therefore, he is the sanctioning authority, then the appellant can safely be held entitled to the enhanced rates. Turning to the plain language of the special condition 51 we find that in case of annual contracts, after six months from their commencement there has to be a provision for revision, which means increase or decrease, according to the rise or fall in the market rates.It is not disputed and it was also found by the High Court, that in the present case the market rates did rise and were indeed so found by the reviewing Tribunal as well.The reviewing Tribunal entrusted with the duty of inquiring into the question of rise or fall of market rates having found the rates to have risen, it would be for the respondents to show by convincing evidence as to who was the officer sanctioning the contract and for what reasons he had disagreed with the conclusions of the reviewing Tribunal. The appellant could not be deprived of his right to claim the enhanced rates merely because the respondent chose to consult the Controller of Military Accounts who does not figure in special condition No. 51: nor can the appellant be made to suffer by reason of the respondent s omission to enlighten the Court by precise evidence clearly showing as to which Officer other than B. R. I. A. S. C. is the sanctioning authority and for what reasons that officer declined to accept the recommendation of the reviewing Tribunal. Our attention was not drawn to any material on the record nor was any principle of law cited on the basis of which the appellant could justifiably be deprived of his right. The High Court was thus in error in allowing the appeal of the Union of India in respect of the appellant s claim to enhanced rates.14. Considerable arguments were addressed at the bar of this Court on the question whether the sanctioning authority was a referee or an umpire and whether his decision was subject to review by the Court in the present proceedings. On the view that we have taken that question does not arise for decision as there is no dispute in regard to actual amounts, if the appellant is held entitled to claim enhanced rates. | 1[ds]w according to the law of pleadings the defendant was bound to deal specifically with each allegation of fact, the truth of which was not admitted. The allegation that B. R. I. A. S. C., Eastern Command, Ranchi was the officer sanctioning the contract was not specifically dealt with and was therefore not specifically denied. If its truth was not admitted then it should also have been stated in this para as to who, according to the defendant, was the officer sanctioning the contract.Had the matter rested here the question of taking the appellant s allegation that B. R. I. A. S. C., Eastern Command was the sanctioning officer to have been admitted, would have required consideration. But we find that in para 26 of the additional pleadings in the written statement it was pleaded that the Commander, Lucknow District was the officer sanctioning the contract and in para 27 it was added that the said officer had not sanctioned enhancement of contract rates.The appellant s plea in question would therefore have to be considered to have been traversed though we cannot complement the respondent or its law officer entrusted with the task of drafting the written statement for the manner in which it was drafted.From the printed document described as acceptance of tender (Ex. C) it is not possible for us to know with certainty as to who was the officer sanctioning the contract. The original is not available on the record in this Court, with the result that we do not have the advantage of having a look at it.We, therefore, hold in disagreement with the High Court that B. R. I. A. S. C. is the authority sanctioning the contract.13. Now on the present record there can be little doubt that the B. R. I. A. S. C. had recommended the enhancement of rates in respect of the appellant s contract. If, therefore, he is the sanctioning authority, then the appellant can safely be held entitled to the enhanced rates. Turning to the plain language of the special condition 51 we find that in case of annual contracts, after six months from their commencement there has to be a provision for revision, which means increase or decrease, according to the rise or fall in the market rates.It is not disputed and it was also found by the High Court, that in the present case the market rates did rise and were indeed so found by the reviewing Tribunal as well.The reviewing Tribunal entrusted with the duty of inquiring into the question of rise or fall of market rates having found the rates to have risen, it would be for the respondents to show by convincing evidence as to who was the officer sanctioning the contract and for what reasons he had disagreed with the conclusions of the reviewing Tribunal. The appellant could not be deprived of his right to claim the enhanced rates merely because the respondent chose to consult the Controller of Military Accounts who does not figure in special condition No. 51: nor can the appellant be made to suffer by reason of the respondent s omission to enlighten the Court by precise evidence clearly showing as to which Officer other than B. R. I. A. S. C. is the sanctioning authority and for what reasons that officer declined to accept the recommendation of the reviewing Tribunal. Our attention was not drawn to any material on the record nor was any principle of law cited on the basis of which the appellant could justifiably be deprived of his right. The High Court was thus in error in allowing the appeal of the Union of India in respect of the appellant s claim to enhanced rates.14. Considerable arguments were addressed at the bar of this Court on the question whether the sanctioning authority was a referee or an umpire and whether his decision was subject to review by the Court in the present proceedings. On the view that we have taken that question does not arise for decision as there is no dispute in regard to actual amounts, if the appellant is held entitled to claim enhanced rates. | 1 | 3,607 | 740 | ### Instruction:
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that the said officer had not sanctioned enhancement of contract rates.The appellant s plea in question would therefore have to be considered to have been traversed though we cannot complement the respondent or its law officer entrusted with the task of drafting the written statement for the manner in which it was drafted.10. We now turn to the evidence on this point. From the printed document described as acceptance of tender (Ex. C) it is not possible for us to know with certainty as to who was the officer sanctioning the contract. The original is not available on the record in this Court, with the result that we do not have the advantage of having a look at it. The appellant s counsel suggested that it was B. R. I. A. S. C., whereas, according to the respondent s counsel it was Major General A. V. Hammond, D. S. O. I. A.11. Let us see whether oral evidence throws any light on it. Moti Ram Dingra, Subedar in the army appeared as witness for the defendant. He was Superintendent, Contract Section in the office of C. A. S. C., U. P. Area, Lucknow. In cross-examination he stated as follows:"A Tribunal is only a recommending authority and not a sanctioning authority. Lucknow is the headquarter of the U. P. Area. The area commander used to be called District Commander previously. The C. R. I. A. S. C. is the administration officer of the Royal Indian Army Service Corps. The area officer at Lucknow is the Commander U. P. Area. Ranchi is the headquarter of Eastern Command. The Commander, Eastern Command is called the army Commander. The B. R. I. A. S. C. is under the army Commander and deals with R. I. A. S. C. matters. The final recommending authority for the enhancement of rates is the Area Commander, Lucknow. He is the sanctioning authority for the enhancement of rates and also of the contract itself upto the amount of rupees three lakhs. For contracts of over three lakhs he recommends the enhancement to the B. R. I. A. S. C. and it is he who sanctions the contract. Before sanctioning enhancement of rates in respect of contracts valued at over three lakhs he takes the advice of the Controller of Military Accounts. I cannot say if the contract of Abdul Sattar was over three lakhs, but as it was sanctioned by the Commander of Lucknow District it should be within the value of Rs. 3,00,000. The matter of enhancement of rates of Abdul Sattar was referred to the B. R. I. A. S. C."12. The witness thereafter expressed ignorance as to whether in the instant case the B. R. I. A. S. C. took advice of the C. M. A. or sought the opinion of the Legal Remembrancer. He also admitted in his cross-examination that his statement that the appellant s claim had been rejected was based only on a letter produced in this case and that he had no other source of information. According to his testimony the matter of enhancement of rates was referred to the B. R. I. A. S. C. who was the higher authority than the Area Commander, Lucknow. Our attention was not drawn on behalf of the respondent to any other evidence on the record which would indicate that the B. R. I. A. S. C. was not the authority sanctioning the contract. We, therefore, hold in disagreement with the High Court that B. R. I. A. S. C. is the authority sanctioning the contract.13. Now on the present record there can be little doubt that the B. R. I. A. S. C. had recommended the enhancement of rates in respect of the appellant s contract. If, therefore, he is the sanctioning authority, then the appellant can safely be held entitled to the enhanced rates. Turning to the plain language of the special condition 51 we find that in case of annual contracts, after six months from their commencement there has to be a provision for revision, which means increase or decrease, according to the rise or fall in the market rates.It is not disputed and it was also found by the High Court, that in the present case the market rates did rise and were indeed so found by the reviewing Tribunal as well.The reviewing Tribunal entrusted with the duty of inquiring into the question of rise or fall of market rates having found the rates to have risen, it would be for the respondents to show by convincing evidence as to who was the officer sanctioning the contract and for what reasons he had disagreed with the conclusions of the reviewing Tribunal. The appellant could not be deprived of his right to claim the enhanced rates merely because the respondent chose to consult the Controller of Military Accounts who does not figure in special condition No. 51: nor can the appellant be made to suffer by reason of the respondent s omission to enlighten the Court by precise evidence clearly showing as to which Officer other than B. R. I. A. S. C. is the sanctioning authority and for what reasons that officer declined to accept the recommendation of the reviewing Tribunal. Our attention was not drawn to any material on the record nor was any principle of law cited on the basis of which the appellant could justifiably be deprived of his right. The High Court was thus in error in allowing the appeal of the Union of India in respect of the appellant s claim to enhanced rates.14. Considerable arguments were addressed at the bar of this Court on the question whether the sanctioning authority was a referee or an umpire and whether his decision was subject to review by the Court in the present proceedings. On the view that we have taken that question does not arise for decision as there is no dispute in regard to actual amounts, if the appellant is held entitled to claim enhanced rates.
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w according to the law of pleadings the defendant was bound to deal specifically with each allegation of fact, the truth of which was not admitted. The allegation that B. R. I. A. S. C., Eastern Command, Ranchi was the officer sanctioning the contract was not specifically dealt with and was therefore not specifically denied. If its truth was not admitted then it should also have been stated in this para as to who, according to the defendant, was the officer sanctioning the contract.Had the matter rested here the question of taking the appellant s allegation that B. R. I. A. S. C., Eastern Command was the sanctioning officer to have been admitted, would have required consideration. But we find that in para 26 of the additional pleadings in the written statement it was pleaded that the Commander, Lucknow District was the officer sanctioning the contract and in para 27 it was added that the said officer had not sanctioned enhancement of contract rates.The appellant s plea in question would therefore have to be considered to have been traversed though we cannot complement the respondent or its law officer entrusted with the task of drafting the written statement for the manner in which it was drafted.From the printed document described as acceptance of tender (Ex. C) it is not possible for us to know with certainty as to who was the officer sanctioning the contract. The original is not available on the record in this Court, with the result that we do not have the advantage of having a look at it.We, therefore, hold in disagreement with the High Court that B. R. I. A. S. C. is the authority sanctioning the contract.13. Now on the present record there can be little doubt that the B. R. I. A. S. C. had recommended the enhancement of rates in respect of the appellant s contract. If, therefore, he is the sanctioning authority, then the appellant can safely be held entitled to the enhanced rates. Turning to the plain language of the special condition 51 we find that in case of annual contracts, after six months from their commencement there has to be a provision for revision, which means increase or decrease, according to the rise or fall in the market rates.It is not disputed and it was also found by the High Court, that in the present case the market rates did rise and were indeed so found by the reviewing Tribunal as well.The reviewing Tribunal entrusted with the duty of inquiring into the question of rise or fall of market rates having found the rates to have risen, it would be for the respondents to show by convincing evidence as to who was the officer sanctioning the contract and for what reasons he had disagreed with the conclusions of the reviewing Tribunal. The appellant could not be deprived of his right to claim the enhanced rates merely because the respondent chose to consult the Controller of Military Accounts who does not figure in special condition No. 51: nor can the appellant be made to suffer by reason of the respondent s omission to enlighten the Court by precise evidence clearly showing as to which Officer other than B. R. I. A. S. C. is the sanctioning authority and for what reasons that officer declined to accept the recommendation of the reviewing Tribunal. Our attention was not drawn to any material on the record nor was any principle of law cited on the basis of which the appellant could justifiably be deprived of his right. The High Court was thus in error in allowing the appeal of the Union of India in respect of the appellant s claim to enhanced rates.14. Considerable arguments were addressed at the bar of this Court on the question whether the sanctioning authority was a referee or an umpire and whether his decision was subject to review by the Court in the present proceedings. On the view that we have taken that question does not arise for decision as there is no dispute in regard to actual amounts, if the appellant is held entitled to claim enhanced rates.
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Mysore State Road Transport Corporation Vs. Babajan Conductor & Anr | a direction that that option will be made available to the petitioner within fifteen days from this date."7. We also find that, after proceedings under the Contempt of Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25-1-61, the date of his dismissal which was declared to be illegal by the High Court, and 1-8-61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation.8. The State Government owed no duty to the first respondent to pay him after its transport department was wound up. No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so. We do not know what option the State Government has given to the first respondent after the writ petition was filed. If it had already given any option to him, there was no point in directing it to give another option. In order to compel the Corporation to do anything, as already indicated, only a general direction under S.34 of the Act, set out above, could be given by the Government. There neither could be a specific direction with regard to a particular case nor was any specific direction given by the Government for any such case. The High Court could not take upon itself the power of fill any gap in the provisions of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was not under any kind of obligation to do. The High Court could not give a specific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules. We can find no justification at all for such assumption of powers by the High Court.9. Mrs. Shyamla Pappu, learned counsel for the appellant has sought support from a judgment of this Court in Mysore State Road Transport Corporation v. A. Krishna Rao and another, C.A. No. 1700 of 1967 given on 6-8-1969, where this Court held as follows :"It is quite clear that the employee of the Bangalore Road Transport Service of the Government did not either under a statutory provision, as in Jestamani Gulabrai Dholakia v. The Scindia Steam Navigation Co., (1961) 2 S.C.R. 811, or automatically, become the employees of the Corporation. The Corporation was directed to take over only those of the employees who opted for its service and to give to them the same terms and conditions as were enjoyed by them while in the service of the Mysore Government. Thus, the condition precedent of an employee of the Road Transport Service of the Government of Mysore being transferred and regarded as the employee of the Corporation as from October 1, 1961, was the giving of the option to him and his exercise thereof.There is no dispute that respondent 1 was not given the notice of option, presumably because, rightly or wrongly, he was not regarded as having been in the service of the Governments Road Transport Service immediately before the Corporation came into being. It cannot also be disputed that he never asked for a notice of option on the ground that he continued to be in that service that he did not in fact exercise the option is an accepted fact. That being so, it cannot be said that under the said notification the Corporation was required to have him as its employee or that his service was transferred to the Corporation thereunder, the condition precedent to such employment or transfer not having been complied with."This Court also held there :"In our view, the Labour Court could not, on the position stated above, treat him as the Corporations employee and on that footing grant him the relief which it did. Once it is found that he did not become the Corporations employee, the Corporation could not be held liable to pay him the wages for the period from March 6, 1960, to April 19, 1962."10. The case cited by Mrs. Pappu arose out of a claim under S. 33(c)(2) of the Industrial Disputes Act, 1947, but the views expressed there accord with ours. We respectfully adopt the same reasoning.11. Indeed, in the case now before us, the Corporations legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted. That relief would, therefore, be deemed to have been refused. The first respondent did not himself go up in appeal against that decision. He cannot claim such a relief in the subsequent writ petition now before us.12. The fact set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the Government. It may be that the effect of the High Courts order, setting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent. Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up. The most he could says was that he was not dismissed. The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law. | 1[ds]8. The State Government owed no duty to the first respondent to pay him after its transport department was wound up. No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so. We do not know what option the State Government has given to the first respondent after the writ petition was filed. If it had already given any option to him, there was no point in directing it to give another option. In order to compel the Corporation to do anything, as already indicated, only a general direction under S.34 of the Act, set out above, could be given by the Government. There neither could be a specific direction with regard to a particular case nor was any specific direction given by the Government for any such case. The High Court could not take upon itself the power of fill any gap in the provisions of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was not under any kind of obligation to do. The High Court could not give a specific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules. We can find no justification at all for such assumption of powers by the High Court.The case cited by Mrs. Pappu arose out of a claim under S. 33(c)(2) ofthe Industrial Disputes Act, 1947, but the views expressed there accord with ours. We respectfully adopt the same reasoning.11. Indeed, in the case now before us, the Corporations legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted. That relief would, therefore, be deemed to have been refused. The first respondent did not himself go up in appeal against that decision. He cannot claim such a relief in the subsequent writ petition now before us.12. The fact set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the Government. It may be that the effect of the High Courts order, setting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent. Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up. The most he could says was that he was not dismissed. The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law. | 1 | 2,517 | 607 | ### Instruction:
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a direction that that option will be made available to the petitioner within fifteen days from this date."7. We also find that, after proceedings under the Contempt of Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25-1-61, the date of his dismissal which was declared to be illegal by the High Court, and 1-8-61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation.8. The State Government owed no duty to the first respondent to pay him after its transport department was wound up. No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so. We do not know what option the State Government has given to the first respondent after the writ petition was filed. If it had already given any option to him, there was no point in directing it to give another option. In order to compel the Corporation to do anything, as already indicated, only a general direction under S.34 of the Act, set out above, could be given by the Government. There neither could be a specific direction with regard to a particular case nor was any specific direction given by the Government for any such case. The High Court could not take upon itself the power of fill any gap in the provisions of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was not under any kind of obligation to do. The High Court could not give a specific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules. We can find no justification at all for such assumption of powers by the High Court.9. Mrs. Shyamla Pappu, learned counsel for the appellant has sought support from a judgment of this Court in Mysore State Road Transport Corporation v. A. Krishna Rao and another, C.A. No. 1700 of 1967 given on 6-8-1969, where this Court held as follows :"It is quite clear that the employee of the Bangalore Road Transport Service of the Government did not either under a statutory provision, as in Jestamani Gulabrai Dholakia v. The Scindia Steam Navigation Co., (1961) 2 S.C.R. 811, or automatically, become the employees of the Corporation. The Corporation was directed to take over only those of the employees who opted for its service and to give to them the same terms and conditions as were enjoyed by them while in the service of the Mysore Government. Thus, the condition precedent of an employee of the Road Transport Service of the Government of Mysore being transferred and regarded as the employee of the Corporation as from October 1, 1961, was the giving of the option to him and his exercise thereof.There is no dispute that respondent 1 was not given the notice of option, presumably because, rightly or wrongly, he was not regarded as having been in the service of the Governments Road Transport Service immediately before the Corporation came into being. It cannot also be disputed that he never asked for a notice of option on the ground that he continued to be in that service that he did not in fact exercise the option is an accepted fact. That being so, it cannot be said that under the said notification the Corporation was required to have him as its employee or that his service was transferred to the Corporation thereunder, the condition precedent to such employment or transfer not having been complied with."This Court also held there :"In our view, the Labour Court could not, on the position stated above, treat him as the Corporations employee and on that footing grant him the relief which it did. Once it is found that he did not become the Corporations employee, the Corporation could not be held liable to pay him the wages for the period from March 6, 1960, to April 19, 1962."10. The case cited by Mrs. Pappu arose out of a claim under S. 33(c)(2) of the Industrial Disputes Act, 1947, but the views expressed there accord with ours. We respectfully adopt the same reasoning.11. Indeed, in the case now before us, the Corporations legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted. That relief would, therefore, be deemed to have been refused. The first respondent did not himself go up in appeal against that decision. He cannot claim such a relief in the subsequent writ petition now before us.12. The fact set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the Government. It may be that the effect of the High Courts order, setting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent. Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up. The most he could says was that he was not dismissed. The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law.
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8. The State Government owed no duty to the first respondent to pay him after its transport department was wound up. No term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so. We do not know what option the State Government has given to the first respondent after the writ petition was filed. If it had already given any option to him, there was no point in directing it to give another option. In order to compel the Corporation to do anything, as already indicated, only a general direction under S.34 of the Act, set out above, could be given by the Government. There neither could be a specific direction with regard to a particular case nor was any specific direction given by the Government for any such case. The High Court could not take upon itself the power of fill any gap in the provisions of the Act, even if we were to assume that there was one here, and compel the Government to perform a function which the Government was not under any kind of obligation to do. The High Court could not give a specific direction to make provision to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules. We can find no justification at all for such assumption of powers by the High Court.The case cited by Mrs. Pappu arose out of a claim under S. 33(c)(2) ofthe Industrial Disputes Act, 1947, but the views expressed there accord with ours. We respectfully adopt the same reasoning.11. Indeed, in the case now before us, the Corporations legal position rests on a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted. That relief would, therefore, be deemed to have been refused. The first respondent did not himself go up in appeal against that decision. He cannot claim such a relief in the subsequent writ petition now before us.12. The fact set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the Government. It may be that the effect of the High Courts order, setting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent. Nevertheless, as no order granting a declaratory relief he had asked for was given to the first respondent, he could not be deemed to be a servant even of the State Government after the department in which he was working was wound up. The most he could says was that he was not dismissed. The winding up of the department would, on the facts stated above, operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may still have under the law.
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Union of India Vs. Assam Iron and Steel Company and Another | FAZAL ALI, J.1. This appeal by certificate is directed against a judgment of the Division Bench of the Calcutta High Court reversing in part a decree passed by the Single Judge of that Court acting in exercise of its original jurisdiction.2. The plaintiff-appellant brought a suit for recover of Rs. 70, 350.00 plus Rs. 3, 851.00 as interest from the defendant on account of the charges to be paid to the appellant as per agreement entered into between the parties which is Annexure A to the plaint and by virtue of which the defendant was appointed as a controlled stockholder for iron and steel in Assam.3. We have gone through the terms of the agreement particularly Clauses 6, 7 and 9 which are extracted below :-"6. Notwithstanding the rates at which the producers might have booked your order, you will pay for all supplies into your Controlled Stock at such prices current at the time of delivery as will be notified by the Government of India.7. For all supplies from Controlled Stock you will charge the buyer as follows :-(i) Such prices as may be notified by the Government of India current at the time of delivery which shall include Stockists remunerations at the rate sanctioned by government based on services rendered and expenses incurred by you.(ii) Such delivery charges as may be agreed between you and the Iron and Steel Controller from time to time. In all cases of delivery f.o.r. your own siding or ex. your yard, no delivery charges will be made.(iii) Cutting and Wastage charges, if incurred at a rate to be agreed between you and the buyer.Rates of Stockists remuneration are on the basis of cash payment to you at the time of delivery. Any question of credit facilities to buyers will be a matter for settlement between you and the buyer.9. In the event of any rise in prices as laid down in 6 above, you will pay to the government or the government will pay to you the different in value on your stocks calculated on the tonnage of stock lying in your stockyard at the time of such rise or fall. Such payment will be made within 14 days from the date when the statement of accounts has been certified by Iron and Steel Controller."4. It is common ground that the price of iron and steel were raised by Rs. 50.00 per ton with effect from July 1, 1952. The stand taken by the Government was that the defendant/respondent was liable not only to pay the cost of 306 tons of iron and steel which were actually lying on that date in the stock-yard of the defendant at Gauhati but also of 1101 tons of the commodities which were then in transit. The High Court has given cogent reason for accepting the case of the defendant that the appellant was not entitled to charge any higher amount resulting from the increase of the price for the goods in transit. It is the admitted case of the parties that in pursuance of the direct despatch programme, these goods were sent directly by the producer to the various registered stockists and were never intended to be transferred to or stored at the stock-yard of the defendant. In this connection the High Court rightly pointed out that the difference in the price was not to be paid in respect of the tonnage of the entire stock, but only that of the stock lying in the defendants stock-yard. The High Court further held that even assuming that these goods were destined for the defendants stock-yard and should therefore be treated as notionally lying therein on June 30, 1952 for the purpose of Clause 9, even then they were not subject to revaluation under Clause 9. We find ourselves in complete agreement with the reasons given by the High Court in reversing the judgment of the learned trial Judge on this point. | 0[ds]4. It is common ground that the price of iron and steel were raised by Rs. 50.00 per ton with effect from July 1, 1952. The stand taken by the Government was that the defendant/respondent was liable not only to pay the cost of 306 tons of iron and steel which were actually lying on that date in theof the defendant at Gauhati but also of 1101 tons of the commodities which were then in transit. The High Court has given cogent reason for accepting the case of the defendant that the appellant was not entitled to charge any higher amount resulting from the increase of the price for the goods in transit. It is the admitted case of the parties that in pursuance of the direct despatch programme, these goods were sent directly by the producer to the various registered stockists and were never intended to be transferred to or stored at theof the defendant. In this connection the High Court rightly pointed out that the difference in the price was not to be paid in respect of the tonnage of the entire stock, but only that of the stock lying in the defendantsThe High Court further held that even assuming that these goods were destined for the defendantsand should therefore be treated as notionally lying therein on June 30, 1952 for the purpose of Clause 9, even then they were not subject to revaluation under Clause 9. We find ourselves in complete agreement with the reasons given by the High Cour | 0 | 707 | 269 | ### Instruction:
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FAZAL ALI, J.1. This appeal by certificate is directed against a judgment of the Division Bench of the Calcutta High Court reversing in part a decree passed by the Single Judge of that Court acting in exercise of its original jurisdiction.2. The plaintiff-appellant brought a suit for recover of Rs. 70, 350.00 plus Rs. 3, 851.00 as interest from the defendant on account of the charges to be paid to the appellant as per agreement entered into between the parties which is Annexure A to the plaint and by virtue of which the defendant was appointed as a controlled stockholder for iron and steel in Assam.3. We have gone through the terms of the agreement particularly Clauses 6, 7 and 9 which are extracted below :-"6. Notwithstanding the rates at which the producers might have booked your order, you will pay for all supplies into your Controlled Stock at such prices current at the time of delivery as will be notified by the Government of India.7. For all supplies from Controlled Stock you will charge the buyer as follows :-(i) Such prices as may be notified by the Government of India current at the time of delivery which shall include Stockists remunerations at the rate sanctioned by government based on services rendered and expenses incurred by you.(ii) Such delivery charges as may be agreed between you and the Iron and Steel Controller from time to time. In all cases of delivery f.o.r. your own siding or ex. your yard, no delivery charges will be made.(iii) Cutting and Wastage charges, if incurred at a rate to be agreed between you and the buyer.Rates of Stockists remuneration are on the basis of cash payment to you at the time of delivery. Any question of credit facilities to buyers will be a matter for settlement between you and the buyer.9. In the event of any rise in prices as laid down in 6 above, you will pay to the government or the government will pay to you the different in value on your stocks calculated on the tonnage of stock lying in your stockyard at the time of such rise or fall. Such payment will be made within 14 days from the date when the statement of accounts has been certified by Iron and Steel Controller."4. It is common ground that the price of iron and steel were raised by Rs. 50.00 per ton with effect from July 1, 1952. The stand taken by the Government was that the defendant/respondent was liable not only to pay the cost of 306 tons of iron and steel which were actually lying on that date in the stock-yard of the defendant at Gauhati but also of 1101 tons of the commodities which were then in transit. The High Court has given cogent reason for accepting the case of the defendant that the appellant was not entitled to charge any higher amount resulting from the increase of the price for the goods in transit. It is the admitted case of the parties that in pursuance of the direct despatch programme, these goods were sent directly by the producer to the various registered stockists and were never intended to be transferred to or stored at the stock-yard of the defendant. In this connection the High Court rightly pointed out that the difference in the price was not to be paid in respect of the tonnage of the entire stock, but only that of the stock lying in the defendants stock-yard. The High Court further held that even assuming that these goods were destined for the defendants stock-yard and should therefore be treated as notionally lying therein on June 30, 1952 for the purpose of Clause 9, even then they were not subject to revaluation under Clause 9. We find ourselves in complete agreement with the reasons given by the High Court in reversing the judgment of the learned trial Judge on this point.
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4. It is common ground that the price of iron and steel were raised by Rs. 50.00 per ton with effect from July 1, 1952. The stand taken by the Government was that the defendant/respondent was liable not only to pay the cost of 306 tons of iron and steel which were actually lying on that date in theof the defendant at Gauhati but also of 1101 tons of the commodities which were then in transit. The High Court has given cogent reason for accepting the case of the defendant that the appellant was not entitled to charge any higher amount resulting from the increase of the price for the goods in transit. It is the admitted case of the parties that in pursuance of the direct despatch programme, these goods were sent directly by the producer to the various registered stockists and were never intended to be transferred to or stored at theof the defendant. In this connection the High Court rightly pointed out that the difference in the price was not to be paid in respect of the tonnage of the entire stock, but only that of the stock lying in the defendantsThe High Court further held that even assuming that these goods were destined for the defendantsand should therefore be treated as notionally lying therein on June 30, 1952 for the purpose of Clause 9, even then they were not subject to revaluation under Clause 9. We find ourselves in complete agreement with the reasons given by the High Cour
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Lilavati Bai Vs. State of Bombay | by eviction by the landlord or by assignment or transfer of the tenants interest. But the Legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenants occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our notice. 13. On the other hand, by way of illustration of decisions to the contrary may be cited the case of Skinner and Co. v. Shew and Co. (1893) 1 Ch 413 (K). In that case the Court of Appeal had to consider the words of S.32 of the Patents, Designs and Trade Marks Act, 1883 (46 and 47 Vict c.57), to the following effect.: -"Where any person claiming to be the patentee of any invention by circulars, advertisements or otherwise threatens any other person with any legal proceedings......" 14. Their Lordships repelled the contention that the words "or otherwise" occurring in that section had to be read ejusdem generis with "circulars" and "advertisements".They observed that be so doing they will be cutting down the intendment of the provisions of the statute when clearly the words, or otherwise had been used with a contrary intention. The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment, do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning.In our opinion, in the context of the object and the mischief of the enactment there is no room for the application of the rule of ejusdem generis. Hence it follows that the vacancy as declared by the order impugned in this case, even though it may not be covered by the specific words used, is certainly covered by the legal import of the words or otherwise.15. The only other contention which remains to be dealt with is that the order impugned in this case is not enforceable because it was directed against the petitioners husband, who was dead at the date of the order, besides the other two persons indicated in it who were not concerned with the premises. In our opinion, there is no substance in this contention either.An order like the one passed under S. 6 (4) (a) of the Act is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against a dead man is a complete nullity.But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over possession of the premises to the so called "lodger" or "paying guest". Admittedly the petitioners husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation.The fact that the petitioners husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under S. 13 of the Act should be erased from the order.But even so, it does not affect the enforceability of the same. S. 13 lays down the different modes of service of an order passed under the Act according as the order is of a general nature or affecting a class of persons or an individual, corporation or firm. We are here concerned with the case of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannot be found, by affixing a copy of the order to some conspicuous part of the premises in which he is known to have last resided. As the petitioners husband had died before the date of the order impugned it could affect only the so called "lodger", who had been on the findings, left in occupation of the premises after October 1952. He has not made any complaint about non-service.The only other person who could be affected by the order, if at all, is the petitioner herself. She has admitted that she came to know of the order in question at about the time it had been made, because she found a copy of the order affixed at the outer door of the premises. Thus admittedly, the petitioner had timely notice of the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid down in sub-s. (2) of S. 13. In any event, as the, concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order". 16. | 0[ds]1. The Act is thus covered by the saying clause. Cl. 5 (a), being an existing law other than a law to which the provisions of Cl. (6) apply. The Act, therefore would be, valid even if the provisions of Cl. (2) of Art. 31 are not in terms fully satisfied, in so far as the Act did not before its amendment by Act XXXIX of 1950 contain the expression "for a public purpose." As already pointed out, this Court in the case of the State of Bombay v. Bhanji Munji (A) has laid it down that the Act was not invalid even after the commencement of the Constitution simply because it is not provided in express terms that the acquisition or requisition had to be for a public purpose, provided that from the whole tenor and intendment of the Act it could be gathered that the requisition was for a public purpose, and for the benefit of the community at large. The amending Act only made explicit what had been left to be gathered from the whole tenor of the Act, as pointed out by this Court in the case cited above. The argument that the amending Acts, II of 1950 and XXXIX of 1950, required the assent of the President under Cl. (3) of Art. 31 has therefore, no force Act II of 1950, in so far as it affects the present controversy, only extended the life of the Act by two years and Act XXXIX of 1950 only made explicit what was not so in the Act as originally passed, and are not such laws as come within the purview of Cl. (3) of Art. 31 inasmuch as those Acts are merely an extension or explanatory of the substantive Act which is an existing law within the meaning of the Constitution. Clause (3) of Art. 31 in terms applies to a law made by the Legislature of a State, after the commencement of the Constitution; whereas the Act had been passed in its substantive form in April 1948. Hence there is no difficulty in holding that the Act which was good law before the commencement of the Constitution did not become void under Art. 13 of the Constitution, because there was nothing in the Act which was inconsistent with the provisions of Part III of the Constitution. If the Act was good law after the commencement of the Constitution it follows that the amendments aforesaid made in 1950, were equally good law, even though the assent of the President had not been obtainedSecondly, the decision of this Court in 1955-1 SCR 777 : ((S) AIR 1955 SC 41 ) (A) itself has ruled to the contrary with reference to the provisions of Art. 31 (2). We cannot, therefore, go back upon our decision in the case aforesaid. On these considerations the petition under Art. 32 of the Constitution must fail on the ground that no fundamental rights of the petitioner as would entitle her to seek redress from this Court, have been contravenedit is well settled that observations made with reference to the construction of one statute cannot be applied with reference to the provisions of another statute which is not in pari materia with the statute which forms the subject matter of the previous decision. The Judicial Committee was dealing with the provisions of S. 4 (1) ofthe Indian Electricity Act,, which did not contain the words conclusive evidence or any words to that effect. That decision of the Judicial Committee, if it can at all be applied to the Act now before us, is against the petitioner in so far as it has construed the words "opinion of the Provincial Government." Those words or words of similar import appear in the beginning of S5. In the words of the Judicial Committee, those words signify the subjective opinion of the Government and not an opinion subject to the objective tests. The observations quoted above only show that on a proper construction of the provisions of the statute then before the Judicial Committee the opinion of the Government, if it was made non-justifiable, was confined to the question of whether there had been a wilful and unreasonably prolonged default, but did not cover the question of the opinion of Government relating to the obligations imposed by the statute on the licensee, by or under the Act.Hence those observations are absolutely of no assistance to the petitioner on the question of the full implication of the rule making certain matters "conclusive evidence" under the provisions of Ss. 5 and 6 of the ActIn the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The Legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words "or otherwise." Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking, a tenants occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenants interest. But the Legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenants occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our noticeThe Act has made a specific provision to the effect that the determination on the questions referred to in Ss. 5 and 6 of the Act by the State Government shall be conclusive evidence of the declaration so made. But that does not mean that the jurisdiction of the High Court under Art. 226 or of this Court under Art. 32 or on appeal has been impaired. In a proper case the High Court or this Court in the exercise of its special jurisdiction under the Constitution has the power to determine how far the provisions of the statute have or have not been complied with. But the special powers aforesaid of this Court or of the High Court cannot extend to reopening a finding by the State Government under S. 5 of the Act that the tenant has not actually resided in the premises for a continuous period of six months immediately preceding the date of the order or under S.6 that the premises had become vacant at about the time indicated in the order impugned. Those are not collateral matters which could on proper evidence be reopened by the courts of law. The Legislature in its wisdom has made those declarations conclusive and it is not for this Court to question that wisdomIn our opinion, there is no substance in this contention either.An order like the one passed under S. 6 (4) (a) of the Act is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against a dead man is a complete nullity.But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over possession of the premises to the so called "lodger" or "paying guest". Admittedly the petitioners husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation.The fact that the petitioners husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under S. 13 of the Act should be erased from the order.But even so, it does not affect the enforceability of the same. S. 13 lays down the different modes of service of an order passed under the Act according as the order is of a general nature or affecting a class of persons or an individual, corporation or firm. We are here concerned with the case of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannot be found, by affixing a copy of the order to some conspicuous part of the premises in which he is known to have last resided. As the petitioners husband had died before the date of the order impugned it could affect only the so called "lodger", who had been on the findings, left in occupation of the premises after October 1952. He has not made any complaint about non-service.The only other person who could be affected by the order, if at all, is the petitioner herself. She has admitted that she came to know of the order in question at about the time it had been made, because she found a copy of the order affixed at the outer door of the premises. Thus admittedly, the petitioner had timely notice of the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid down in sub-s. (2) of S. 13. In any event, as the, concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order". | 0 | 6,177 | 1,875 | ### Instruction:
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by eviction by the landlord or by assignment or transfer of the tenants interest. But the Legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenants occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our notice. 13. On the other hand, by way of illustration of decisions to the contrary may be cited the case of Skinner and Co. v. Shew and Co. (1893) 1 Ch 413 (K). In that case the Court of Appeal had to consider the words of S.32 of the Patents, Designs and Trade Marks Act, 1883 (46 and 47 Vict c.57), to the following effect.: -"Where any person claiming to be the patentee of any invention by circulars, advertisements or otherwise threatens any other person with any legal proceedings......" 14. Their Lordships repelled the contention that the words "or otherwise" occurring in that section had to be read ejusdem generis with "circulars" and "advertisements".They observed that be so doing they will be cutting down the intendment of the provisions of the statute when clearly the words, or otherwise had been used with a contrary intention. The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment, do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning.In our opinion, in the context of the object and the mischief of the enactment there is no room for the application of the rule of ejusdem generis. Hence it follows that the vacancy as declared by the order impugned in this case, even though it may not be covered by the specific words used, is certainly covered by the legal import of the words or otherwise.15. The only other contention which remains to be dealt with is that the order impugned in this case is not enforceable because it was directed against the petitioners husband, who was dead at the date of the order, besides the other two persons indicated in it who were not concerned with the premises. In our opinion, there is no substance in this contention either.An order like the one passed under S. 6 (4) (a) of the Act is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against a dead man is a complete nullity.But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over possession of the premises to the so called "lodger" or "paying guest". Admittedly the petitioners husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation.The fact that the petitioners husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under S. 13 of the Act should be erased from the order.But even so, it does not affect the enforceability of the same. S. 13 lays down the different modes of service of an order passed under the Act according as the order is of a general nature or affecting a class of persons or an individual, corporation or firm. We are here concerned with the case of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannot be found, by affixing a copy of the order to some conspicuous part of the premises in which he is known to have last resided. As the petitioners husband had died before the date of the order impugned it could affect only the so called "lodger", who had been on the findings, left in occupation of the premises after October 1952. He has not made any complaint about non-service.The only other person who could be affected by the order, if at all, is the petitioner herself. She has admitted that she came to know of the order in question at about the time it had been made, because she found a copy of the order affixed at the outer door of the premises. Thus admittedly, the petitioner had timely notice of the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid down in sub-s. (2) of S. 13. In any event, as the, concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order". 16.
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and unreasonably prolonged default, but did not cover the question of the opinion of Government relating to the obligations imposed by the statute on the licensee, by or under the Act.Hence those observations are absolutely of no assistance to the petitioner on the question of the full implication of the rule making certain matters "conclusive evidence" under the provisions of Ss. 5 and 6 of the ActIn the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The Legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words "or otherwise." Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking, a tenants occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenants interest. But the Legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenants occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our noticeThe Act has made a specific provision to the effect that the determination on the questions referred to in Ss. 5 and 6 of the Act by the State Government shall be conclusive evidence of the declaration so made. But that does not mean that the jurisdiction of the High Court under Art. 226 or of this Court under Art. 32 or on appeal has been impaired. In a proper case the High Court or this Court in the exercise of its special jurisdiction under the Constitution has the power to determine how far the provisions of the statute have or have not been complied with. But the special powers aforesaid of this Court or of the High Court cannot extend to reopening a finding by the State Government under S. 5 of the Act that the tenant has not actually resided in the premises for a continuous period of six months immediately preceding the date of the order or under S.6 that the premises had become vacant at about the time indicated in the order impugned. Those are not collateral matters which could on proper evidence be reopened by the courts of law. The Legislature in its wisdom has made those declarations conclusive and it is not for this Court to question that wisdomIn our opinion, there is no substance in this contention either.An order like the one passed under S. 6 (4) (a) of the Act is not in the nature of an order in judicial proceedings between the Government on the one hand and other parties named. If the proceedings were intended by the Act in the sense of judicial or quasi-judicial proceedings between named parties, it may have been legitimately argued that an order passed against a dead man is a complete nullity.But the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in October 1952, apparently by reason of the fact that he had handed over possession of the premises to the so called "lodger" or "paying guest". Admittedly the petitioners husband died after October 1952. The occupation by the said Narottamdas Dharamsey Patel was in the nature of an unauthorised occupation.The fact that the petitioners husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under S. 13 of the Act should be erased from the order.But even so, it does not affect the enforceability of the same. S. 13 lays down the different modes of service of an order passed under the Act according as the order is of a general nature or affecting a class of persons or an individual, corporation or firm. We are here concerned with the case of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannot be found, by affixing a copy of the order to some conspicuous part of the premises in which he is known to have last resided. As the petitioners husband had died before the date of the order impugned it could affect only the so called "lodger", who had been on the findings, left in occupation of the premises after October 1952. He has not made any complaint about non-service.The only other person who could be affected by the order, if at all, is the petitioner herself. She has admitted that she came to know of the order in question at about the time it had been made, because she found a copy of the order affixed at the outer door of the premises. Thus admittedly, the petitioner had timely notice of the order impugned. Hence in the instant case there is no need to apply the rule of conclusive proof as laid down in sub-s. (2) of S. 13. In any event, as the, concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order".
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Auto Cars Vs. Trimurti Cargo Movers Pvt. Ltd. & Others | defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. 28. Now coming to the facts of the case, we find that the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the Times of India and Dainik Bhaskar did not comply with the requirement of Section 27 read with Appendix-B (process) No.I and IA. 29. In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law. 30. The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) and Process-IA of Appendix-B, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner. 31. What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiffs claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence. 32. The aforesaid wording in the summons insofar as it pertains to giving 15 days time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B. 33. In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the Code. 34. It is for this reason, we are of the considered opinion that the appellant (defendant No.1) was able to make out a ground contemplated under Order IX Rule 13 of the Code for setting aside the ex parte decree. 35. Once the appellant (defendant No.1) is able to show that "summons were not duly served on him" as prescribed under Section 27 read with Appendix B Process IA and Order V Rule 20(3) of the Code then it is one of the grounds for setting aside the ex parte decree under Order IX Rule 13 of the Code. In our view, the appellant (defendant No.1) is able to make out the ground. 36. In view of the foregoing discussion, we need not consider any other ground though raised by the appellant (defendant No.1) in support of their case because the aforesaid ground which we have dealt with though not raised by the appellant in the Courts below but being a pure question of law and going to the root of the matter affecting the very jurisdiction of the Court could be allowed to be raised in this Court for doing substantial justice. 37. Before parting, we consider it apposite to remind ourselves with the apt observations of a learned Judge - Vivian Bose, J., which His Lordship made while dealing with the scope of Order IX in a leading case of Sangram Singh vs. Election Tribunal (AIR 1955 SC 425 ). 38. The learned Judge speaking for the Bench in his distinctive style of writing reminded the Courts to keep the following observations in mind while deciding the rights of the parties which reads as under: "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. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle." | 1[ds]15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned judgment allow the application filed by the defendants under Order IX Rule 13 of the Code and, in consequence, set aside the ex parte decree 09.02.2015 passed in Civil Suit No. 15/2014 and restore the suit on its file for being tried on merits in accordance with law.In our considered view, the issue involved in the appeal is required to be examined keeping in view Section 27,appended to the Code read with Order V Rule 20(3) and Order IX Rule 13 of the Code.Order V Rule 20(3) provides that when the service is effected by way of publication by the orders of the Court, the Court has to fix "time" for the appearance of the defendant, as the case may require. In our opinion, this does not dispense with the requirement of mentioning the actual day, date, year and time for defendants appearance in the Court because it is prescribed in format.The expression "time" has to be read harmoniously and in juxtaposition with the requirement prescribed under Section 27 read with statutory format Process IA ofappended to the Code.Indeed, mentioning of the specific "day, date, year and time" in the summons is a statutory requirement prescribed in law (Code) and, therefore, it cannot be said to be an empty formality. It is essentially meant and for the benefit of the defendant because it enables the defendant to know the exact date, time and the place to appear in the particular Court in answer to the suit filed by the plaintiff against him.Now coming to the facts of the case, we find that the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the Times of India and Dainik Bhaskar did not comply with the requirement of Section 27 read with(process) No.I and IA.In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law.The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) andB, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner.What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiffs claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence.The aforesaid wording in the summons insofar as it pertains to giving 15 days time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B.In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the. The object behind sending the summons is essentially threefoldFirst, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. | 1 | 4,052 | 931 | ### 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:
defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer. 28. Now coming to the facts of the case, we find that the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the Times of India and Dainik Bhaskar did not comply with the requirement of Section 27 read with Appendix-B (process) No.I and IA. 29. In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law. 30. The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) and Process-IA of Appendix-B, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner. 31. What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiffs claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence. 32. The aforesaid wording in the summons insofar as it pertains to giving 15 days time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B. 33. In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the Code. 34. It is for this reason, we are of the considered opinion that the appellant (defendant No.1) was able to make out a ground contemplated under Order IX Rule 13 of the Code for setting aside the ex parte decree. 35. Once the appellant (defendant No.1) is able to show that "summons were not duly served on him" as prescribed under Section 27 read with Appendix B Process IA and Order V Rule 20(3) of the Code then it is one of the grounds for setting aside the ex parte decree under Order IX Rule 13 of the Code. In our view, the appellant (defendant No.1) is able to make out the ground. 36. In view of the foregoing discussion, we need not consider any other ground though raised by the appellant (defendant No.1) in support of their case because the aforesaid ground which we have dealt with though not raised by the appellant in the Courts below but being a pure question of law and going to the root of the matter affecting the very jurisdiction of the Court could be allowed to be raised in this Court for doing substantial justice. 37. Before parting, we consider it apposite to remind ourselves with the apt observations of a learned Judge - Vivian Bose, J., which His Lordship made while dealing with the scope of Order IX in a leading case of Sangram Singh vs. Election Tribunal (AIR 1955 SC 425 ). 38. The learned Judge speaking for the Bench in his distinctive style of writing reminded the Courts to keep the following observations in mind while deciding the rights of the parties which reads as under: "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. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
### Response:
1
### Explanation:
15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned judgment allow the application filed by the defendants under Order IX Rule 13 of the Code and, in consequence, set aside the ex parte decree 09.02.2015 passed in Civil Suit No. 15/2014 and restore the suit on its file for being tried on merits in accordance with law.In our considered view, the issue involved in the appeal is required to be examined keeping in view Section 27,appended to the Code read with Order V Rule 20(3) and Order IX Rule 13 of the Code.Order V Rule 20(3) provides that when the service is effected by way of publication by the orders of the Court, the Court has to fix "time" for the appearance of the defendant, as the case may require. In our opinion, this does not dispense with the requirement of mentioning the actual day, date, year and time for defendants appearance in the Court because it is prescribed in format.The expression "time" has to be read harmoniously and in juxtaposition with the requirement prescribed under Section 27 read with statutory format Process IA ofappended to the Code.Indeed, mentioning of the specific "day, date, year and time" in the summons is a statutory requirement prescribed in law (Code) and, therefore, it cannot be said to be an empty formality. It is essentially meant and for the benefit of the defendant because it enables the defendant to know the exact date, time and the place to appear in the particular Court in answer to the suit filed by the plaintiff against him.Now coming to the facts of the case, we find that the summons dated 17.11.2014, which was sought to be served on the defendants by publication published on 25.11.2014 in the Times of India and Dainik Bhaskar did not comply with the requirement of Section 27 read with(process) No.I and IA.In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law.The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) andB, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filling. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thing has to be done in the same prescribed manner and in no other manner.What was, however, mentioned in the summons in question was that the defendants should appear before the Registrar of the Court within 15 days from the service of publication of this summons on them exclusive of the day of such service of the summons and are summoned to appear before this Court in person or through advocate to answer the plaintiffs claim on the day the case is set down for hearing upon which date you(defendants) must be prepared to produce all your witness and all your documents in your possession or power upon which you intend to rely in support of your case. The summons then also mentioned that you (defendants) are hereby required to take notice that in default of your causing an appearance to be so entered, the suit will be liable to be heard and determined in your absence.The aforesaid wording in the summons insofar as it pertains to giving 15 days time without mentioning a specific day, date, year and time is not in conformity with the requirements of Section 27 read with Appendix B.In the light of the foregoing discussions, service of summons on the defendants without mentioning therein a specific day, date, year and time cannot be held as "summons duly served" on the defendants within the meaning of Order IX Rule 13 of the Code. In other words, such summons and the service effected pursuant thereto cannot be held to be in conformity with Section 27 read with the statutory format prescribed in Appendix B Process (I and IA) and Order 5 Rule 20(3) of the. The object behind sending the summons is essentially threefoldFirst, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer.
|
National Insurance Co.Ltd Vs. Cholleti Bharatamma | Court in New India Assustance Co. Ltd. v. Satpal Singh [(2000) 1 SCC 237] wherein their Lordships held that under the Motor Vehicles Act, 1988 all Insurance policies covering third party risks are not required to exclude gratuitous passengers in the vehicles though the vehicle is of any type or class. Following the same, the appeal is dismissed. No order as to costs.” 17. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle. In this case, the High Court had proceeded on the basis that they were gratuitous passengers. The admitted plea of the respondents themselves was that the deceased had boarded the lorry and paid an amount of Rs.20/- as transport charges. It has not been proved that the deceased was travelling in the lorry along with the driver or the cleaner as the owner of the goods. Travelling with the goods itself does not entitle anyone to protection under Section 147 of the Motor Vehicles Act. For the reasons aforementioned, this appeal is dismissed. CA @ SLP (C) No.7248/03 18. The accident in this case took place on 3.1.1991. Twenty persons were travelling in the truck. The policy covered the risk only of the owner of the goods. Before the learned Tribunal, it was contended that the risk of the owners of the goods is covered by the policy. It was held: “On a careful consideration of the various authorities cited by the learned counsels for both the parties, Section 147, 149 Rule 277(3) and 252 of Rules framed under M.V. Act. I have no hesitation to conclude that the risk of the owner of the goods is also covered by the policy issued by the insurance companies, from the evidence of R.W.1 who is no other than the employee of R-2 as well as terms of Ex.B-2 Policy, it is obvious that the risk of the owner of the goods is covered, but it is restricted only to one person as owner of the goods. Thus, there can be no doubt that the owner of the goods can travel in the goods vehicle and if they are involved in the accident, their risk is covered subject to the terms and conditions of the policy issued by the insurance companies.” 19. The learned Tribunal, however, noticed: “Thus, the claim form corroborate the testimony of the petitioners that deceased or the injured as the case may be travelled in the vehicle as owner of goods. But it is mentioned in Ex.B-3 claim form as well as in Ex.B1 permit that the seating capacity of the lorry is only “3” including driver and cleaner which would go to show that only one passenger can travel in it...” 20. Upon considering the evidences on record, it was held: “As the permitted seating capacity of the lorry is only “3” including the driver and cleaner and as only one non-fare paying passenger as owner of goods can travel in the cabin and as the deceased has admittedly travelled in the cabin beyond seating capacity and contrary to the terms of the permit as well as Rule 252(2) of the Motor Vehicles Act. I am of the view that R-2 cannot be fastened with the liability to pay compensation along with R-1 to all the injured and legal representatives of deceased. At best it is liable to pay compensation jointly and severally along with R-1 only in respect of one non-fare paying passengers, who is the owner of the goods. As per the endorsement I.M.T. 14(b) unless additional premium is paid for the number of persons who travelled in the lorry, as owners. I am of the view that R-2 cannot be fastened with liability. Further all the petitioners and deceased cannot be deemed to have travelled as owners of the paddy as the paddy is said to be in bags and orally kept in loose in the lorry and it is enough if any one of them have travelled in the lorry on behalf of all, as owner of the lorry Rule 277(3) of A.P. Motor Vehicles Rules, clearly shows that no person shall be carried in the goods vehicle except as provided in the Rule under the statute and as the only person, who are permitted to carry in goods vehicles are the owner of hirer or bona fide employee of owner of hirer and total number of such persons, who could be carried in goods vehicles is not more than seven including the driver. As per Rule 252(2) person shall be carried in the cab of the vehicle beyond the seating capacity as per clause (2). No person shall be carried on the load or otherwise. Rule 4 empowers the R.T.A. to allow large number of persons to be carried. As the seating capacity of the lorry is only “3” as per Ex.B1 and B3 and as the risk of only owner of goods is covered by Ex.B2 policy, whereas about 40 to 42 persons travelled in the lorry by sitting on the load, which is not permitted and as there is no material to show that R.T.A. permitted carriage of more than seating capacity but on the other hand the permit is cancelled. I am in agreement with the contention of the learned counsel for the respondent that it cannot be fastened with the liability for compensation.” 21. The High Court, however, dismissed the appeals preferred by the respondents relying upon Satpal Singh (supra). Submission of the learned counsel appearing on behalf of the respondent is that within the aforementioned twenty persons, it is the respondents having preferred an appeal, this Court should hold that at least the claimants-respondents are entitled to compensation as the deceased was travelling as owner of the goods. The learned Tribunal discussed the matter in great details. It is not in dispute that premium has been paid only for one person. In the facts and circumstances of this case, we | 1[ds]The High Court, however, dismissed the appeals preferred by the respondents relying upon Satpal Singh (supra). Submission of the learned counsel appearing on behalf of the respondent is that within the aforementioned twenty persons, it is the respondents having preferred an appeal, this Court should hold that at least the claimants-respondents are entitled to compensation as the deceased was travelling as owner of the goods. The learned Tribunal discussed the matter in great details. It is not in dispute that premium has been paid only for one | 1 | 3,957 | 100 | ### 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:
Court in New India Assustance Co. Ltd. v. Satpal Singh [(2000) 1 SCC 237] wherein their Lordships held that under the Motor Vehicles Act, 1988 all Insurance policies covering third party risks are not required to exclude gratuitous passengers in the vehicles though the vehicle is of any type or class. Following the same, the appeal is dismissed. No order as to costs.” 17. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle. In this case, the High Court had proceeded on the basis that they were gratuitous passengers. The admitted plea of the respondents themselves was that the deceased had boarded the lorry and paid an amount of Rs.20/- as transport charges. It has not been proved that the deceased was travelling in the lorry along with the driver or the cleaner as the owner of the goods. Travelling with the goods itself does not entitle anyone to protection under Section 147 of the Motor Vehicles Act. For the reasons aforementioned, this appeal is dismissed. CA @ SLP (C) No.7248/03 18. The accident in this case took place on 3.1.1991. Twenty persons were travelling in the truck. The policy covered the risk only of the owner of the goods. Before the learned Tribunal, it was contended that the risk of the owners of the goods is covered by the policy. It was held: “On a careful consideration of the various authorities cited by the learned counsels for both the parties, Section 147, 149 Rule 277(3) and 252 of Rules framed under M.V. Act. I have no hesitation to conclude that the risk of the owner of the goods is also covered by the policy issued by the insurance companies, from the evidence of R.W.1 who is no other than the employee of R-2 as well as terms of Ex.B-2 Policy, it is obvious that the risk of the owner of the goods is covered, but it is restricted only to one person as owner of the goods. Thus, there can be no doubt that the owner of the goods can travel in the goods vehicle and if they are involved in the accident, their risk is covered subject to the terms and conditions of the policy issued by the insurance companies.” 19. The learned Tribunal, however, noticed: “Thus, the claim form corroborate the testimony of the petitioners that deceased or the injured as the case may be travelled in the vehicle as owner of goods. But it is mentioned in Ex.B-3 claim form as well as in Ex.B1 permit that the seating capacity of the lorry is only “3” including driver and cleaner which would go to show that only one passenger can travel in it...” 20. Upon considering the evidences on record, it was held: “As the permitted seating capacity of the lorry is only “3” including the driver and cleaner and as only one non-fare paying passenger as owner of goods can travel in the cabin and as the deceased has admittedly travelled in the cabin beyond seating capacity and contrary to the terms of the permit as well as Rule 252(2) of the Motor Vehicles Act. I am of the view that R-2 cannot be fastened with the liability to pay compensation along with R-1 to all the injured and legal representatives of deceased. At best it is liable to pay compensation jointly and severally along with R-1 only in respect of one non-fare paying passengers, who is the owner of the goods. As per the endorsement I.M.T. 14(b) unless additional premium is paid for the number of persons who travelled in the lorry, as owners. I am of the view that R-2 cannot be fastened with liability. Further all the petitioners and deceased cannot be deemed to have travelled as owners of the paddy as the paddy is said to be in bags and orally kept in loose in the lorry and it is enough if any one of them have travelled in the lorry on behalf of all, as owner of the lorry Rule 277(3) of A.P. Motor Vehicles Rules, clearly shows that no person shall be carried in the goods vehicle except as provided in the Rule under the statute and as the only person, who are permitted to carry in goods vehicles are the owner of hirer or bona fide employee of owner of hirer and total number of such persons, who could be carried in goods vehicles is not more than seven including the driver. As per Rule 252(2) person shall be carried in the cab of the vehicle beyond the seating capacity as per clause (2). No person shall be carried on the load or otherwise. Rule 4 empowers the R.T.A. to allow large number of persons to be carried. As the seating capacity of the lorry is only “3” as per Ex.B1 and B3 and as the risk of only owner of goods is covered by Ex.B2 policy, whereas about 40 to 42 persons travelled in the lorry by sitting on the load, which is not permitted and as there is no material to show that R.T.A. permitted carriage of more than seating capacity but on the other hand the permit is cancelled. I am in agreement with the contention of the learned counsel for the respondent that it cannot be fastened with the liability for compensation.” 21. The High Court, however, dismissed the appeals preferred by the respondents relying upon Satpal Singh (supra). Submission of the learned counsel appearing on behalf of the respondent is that within the aforementioned twenty persons, it is the respondents having preferred an appeal, this Court should hold that at least the claimants-respondents are entitled to compensation as the deceased was travelling as owner of the goods. The learned Tribunal discussed the matter in great details. It is not in dispute that premium has been paid only for one person. In the facts and circumstances of this case, we
### Response:
1
### Explanation:
The High Court, however, dismissed the appeals preferred by the respondents relying upon Satpal Singh (supra). Submission of the learned counsel appearing on behalf of the respondent is that within the aforementioned twenty persons, it is the respondents having preferred an appeal, this Court should hold that at least the claimants-respondents are entitled to compensation as the deceased was travelling as owner of the goods. The learned Tribunal discussed the matter in great details. It is not in dispute that premium has been paid only for one
|
Salem Erode Electricity Distribution Company Ltd Vs. Salem Erode Electricity Distribution Co. Ltd. Employe | (AIR 1964 SC 914 ). During the course of the hearing of this appeal some arguments were urged before us on the question about the relation between terms and conditions of service governing working hours, leaves, and the like and the wages paid to the employees. Mr. Ramamurthi who appeared for the respondents conceded that the terms and conditions in regard to leave or working hours can be changed; but he contended that the increase in the working hours or the reduction or earned leave should not be permitted to be introduced without taking into account the question about the coursequent increase in the wage structure itself; and it was with a view to combat this contention that Mr. Setalvad referred us to the decision in the Associated Cement Co.s case, 1964-1 Lab LJ 12 : (AIR 1964 SC 914 ) (supra). In that case, the question of holidays, working hours and wages were all referred to the Industrial Tribunal for its decision. The matter which arose for the decision of this Court in the appeals which were brought to this Court in that case, was, inter alia, in regard to holidays. The Tribunal had allowed 21 holidays, whereas this Court reduced the number to 16. Dealing with the question about the normal working hours, this Court observed that"once a conclusion about the normal working hours is reached after considering the optimum working hours on a consideration of all the relevant factors, industrial adjudication cannot hesitate to give effect to its conclusion merely because the workmen would have been entitled to more wages at overtime rates if the hours of work had been fixed at less."Mr. Setalvad relies upon this observation. But we think it wold be unreasonable to read this observation in isolation, because in very next sentence, this Court has added that it is true that in fixing the proper wage scale, the question of workload and the matter of working hours cannot be left wholly out of consideration, though it further observed that many other factors including the need of the workmen, the financial resources of the employer, the rates of wage prevailing in other industries in the region, have all to be considered in deciding the wage-scale. It appears that in that case, the Tribunal itself had held that 21 holidays erred on the side of excessive liberality, and yet it did not reduce that number. That is why this Court reduced the number of holidays from 21 to 16. This decision, in our opinion, does show that where industrial adjudication has to deal with an industrial dispute in relation to wage structure, working hours, and holidays, it must consider the problem comprehensively and in prescribing the working hours, and making provision for holidays and leave with or without pay, amongst other relevant factors, the wages paid to the employees have no doubt to be taken into account. But these considerations do not arise in the present proceedings, because what the appropriate authorities under the Act had to consider was whether two sets of Standing Orders should be permitted under the same establishment or not.25. The last case to which reference must be made is Guest, Keen, Williams Private Ltd. v. P. J. Sterling, 1960-1 SCR 348 : (AIR 1959 SC 1279 ). In that case, the Standing Order had been certified under the Act prior to its amendment. The relevant Standing Order had relation to the age of retirement of the employees under the establishment in question. When the Standing Order was certified, its fairness and reasonableness could not have been examined by the Certifying Authority. After it was certified, the employer sought to give effect to the age of retirement in regard to employees who were already in its employment; and that gave rise to an industrial dispute. The employees who were already in the employment of the employer, contended that prior to the certification of the Standing Order, there was no age of retirement in the concern and they urged that the certified Standing Order could not affect their right to continue in the employment so long as they were fit to discharge their duties. It was in the context of this dispute that the question arose as to whether the certified Standing Order applied to the previously existing employees. The Labour Appellate Tribunal against whose decision the appeal was brought to this Court by the appellant Guest, Keen Williams Private Ltd. had held that the certified Standing Order could not apply to the employees who were already in the employment of the appellant. This Court affirmed the view expressed by the Labour Appellate Tribunal that the certified Standing Order could not affect the rights of the previous employees; nevertheless, it was held that the question of prescribing an age of retirement for them could be considered in the proceedings before the Court and under the special circumstances to which reference has been made in the judgment, it was thought that the age of superannuation for prior employees could be reasonably and fairly fixed at 60 years. This decision again is not of any assistance, because the matter came to this Court from an industrial dispute which was the subject-matter of industrial adjudication before the Industrial Tribunal and the Labour Appellate Tribunal and all that this Court did was to fix an age of superannuation for workmen who had been employed prior to the date of the certification of the relevant Standing Order, at 60, and that course was adopted under the special and unusual circumstances expressly stated in the course of the judgment. As we have already pointed out, the question as to whether two sets of Standing Orders can be certified under the provisions of the Act, did not fall to be considered in that case. Therefore, we are satisfied that the Certifying Officer as well as the appellate authority committed no error of law in refusing to certify the modified Standing Orders submitted by the appellant in the present proceedings. | 0[ds]25. The last case to which reference must be made is Guest, Keen, Williams Private Ltd. v. P. J. Sterling, 1960-1 SCR 348 : (AIR 1959 SC 1279 ). In that case, the Standing Order had been certified under the Act prior to its amendment. The relevant Standing Order had relation to the age of retirement of the employees under the establishment in question. When the Standing Order was certified, its fairness and reasonableness could not have been examined by the Certifying Authority. After it was certified, the employer sought to give effect to the age of retirement in regard to employees who were already in its employment; and that gave rise to an industrial dispute. The employees who were already in the employment of the employer, contended that prior to the certification of the Standing Order, there was no age of retirement in the concern and they urged that the certified Standing Order could not affect their right to continue in the employment so long as they were fit to discharge their duties. It was in the context of this dispute that the question arose as to whether the certified Standing Order applied to the previously existing employees. The Labour Appellate Tribunal against whose decision the appeal was brought to this Court by the appellant Guest, Keen Williams Private Ltd. had held that the certified Standing Order could not apply to the employees who were already in the employment of the appellant. This Court affirmed the view expressed by the Labour Appellate Tribunal that the certified Standing Order could not affect the rights of the previous employees; nevertheless, it was held that the question of prescribing an age of retirement for them could be considered in the proceedings before the Court and under the special circumstances to which reference has been made in the judgment, it was thought that the age of superannuation for prior employees could be reasonably and fairly fixed at 60 years. This decision again is not of any assistance, because the matter came to this Court from an industrial dispute which was the subject-matter of industrial adjudication before the Industrial Tribunal and the Labour Appellate Tribunal and all that this Court did was to fix an age of superannuation for workmen who had been employed prior to the date of the certification of the relevant Standing Order, at 60, and that course was adopted under the special and unusual circumstances expressly stated in the course of the judgment. As we have already pointed out, the question as to whether two sets of Standing Orders can be certified under the provisions of the Act, did not fall to be considered in that case. Therefore, we are satisfied that the Certifying Officer as well as the appellate authority committed no error of law in refusing to certify the modified Standing Orders submitted by the appellant in the present proceedings.Prior to the enactment of the Act, industrial establishment used to employ workmen on different terms and conditions of service and they used to enter into separate agreements with employees on an ad hoc basis. It was precisely with the object of avoiding this anomalous position that the Act has been passed and an obligation has been imposed upon the industrial establishments to have their Standing Orders certified by the appropriate authorities. Therefore, we do not think Mr. Setalvad is right in contending that it is open to an industrial establishment to have two sets of Standing Orders certified in relation to leave and holidays provided that the modified Standing Orders apply to future entrants and the existing Standing Orders apply to entrants who are already in the employment of the establishment.The result, therefore, appears to be that in regard to the certification of the Standing Order, the Act provides for aCode. The Certifying Officer is given the power to consider questions of fairness and reasonableness as well as the other question indicated by S. 4 (a) and (b). An appeal is provided against the decision of the Certifying Officer and in case a dispute arises as to the interpretation or the application of the Standing Order, a remedy is provided by S. 13A. Besides, as we have already pointed out, a right is given both to the employer and the workmen to move the appropriate authorities for modification of the existing Standing Orders. That is why we do not think that Mr. Setalvad is right in contending that the Certifying Officer as well as the appellate authority erred in law in refusing to certify the modified Standing Orders submitted by the appellant for certification. | 0 | 5,402 | 822 | ### Instruction:
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(AIR 1964 SC 914 ). During the course of the hearing of this appeal some arguments were urged before us on the question about the relation between terms and conditions of service governing working hours, leaves, and the like and the wages paid to the employees. Mr. Ramamurthi who appeared for the respondents conceded that the terms and conditions in regard to leave or working hours can be changed; but he contended that the increase in the working hours or the reduction or earned leave should not be permitted to be introduced without taking into account the question about the coursequent increase in the wage structure itself; and it was with a view to combat this contention that Mr. Setalvad referred us to the decision in the Associated Cement Co.s case, 1964-1 Lab LJ 12 : (AIR 1964 SC 914 ) (supra). In that case, the question of holidays, working hours and wages were all referred to the Industrial Tribunal for its decision. The matter which arose for the decision of this Court in the appeals which were brought to this Court in that case, was, inter alia, in regard to holidays. The Tribunal had allowed 21 holidays, whereas this Court reduced the number to 16. Dealing with the question about the normal working hours, this Court observed that"once a conclusion about the normal working hours is reached after considering the optimum working hours on a consideration of all the relevant factors, industrial adjudication cannot hesitate to give effect to its conclusion merely because the workmen would have been entitled to more wages at overtime rates if the hours of work had been fixed at less."Mr. Setalvad relies upon this observation. But we think it wold be unreasonable to read this observation in isolation, because in very next sentence, this Court has added that it is true that in fixing the proper wage scale, the question of workload and the matter of working hours cannot be left wholly out of consideration, though it further observed that many other factors including the need of the workmen, the financial resources of the employer, the rates of wage prevailing in other industries in the region, have all to be considered in deciding the wage-scale. It appears that in that case, the Tribunal itself had held that 21 holidays erred on the side of excessive liberality, and yet it did not reduce that number. That is why this Court reduced the number of holidays from 21 to 16. This decision, in our opinion, does show that where industrial adjudication has to deal with an industrial dispute in relation to wage structure, working hours, and holidays, it must consider the problem comprehensively and in prescribing the working hours, and making provision for holidays and leave with or without pay, amongst other relevant factors, the wages paid to the employees have no doubt to be taken into account. But these considerations do not arise in the present proceedings, because what the appropriate authorities under the Act had to consider was whether two sets of Standing Orders should be permitted under the same establishment or not.25. The last case to which reference must be made is Guest, Keen, Williams Private Ltd. v. P. J. Sterling, 1960-1 SCR 348 : (AIR 1959 SC 1279 ). In that case, the Standing Order had been certified under the Act prior to its amendment. The relevant Standing Order had relation to the age of retirement of the employees under the establishment in question. When the Standing Order was certified, its fairness and reasonableness could not have been examined by the Certifying Authority. After it was certified, the employer sought to give effect to the age of retirement in regard to employees who were already in its employment; and that gave rise to an industrial dispute. The employees who were already in the employment of the employer, contended that prior to the certification of the Standing Order, there was no age of retirement in the concern and they urged that the certified Standing Order could not affect their right to continue in the employment so long as they were fit to discharge their duties. It was in the context of this dispute that the question arose as to whether the certified Standing Order applied to the previously existing employees. The Labour Appellate Tribunal against whose decision the appeal was brought to this Court by the appellant Guest, Keen Williams Private Ltd. had held that the certified Standing Order could not apply to the employees who were already in the employment of the appellant. This Court affirmed the view expressed by the Labour Appellate Tribunal that the certified Standing Order could not affect the rights of the previous employees; nevertheless, it was held that the question of prescribing an age of retirement for them could be considered in the proceedings before the Court and under the special circumstances to which reference has been made in the judgment, it was thought that the age of superannuation for prior employees could be reasonably and fairly fixed at 60 years. This decision again is not of any assistance, because the matter came to this Court from an industrial dispute which was the subject-matter of industrial adjudication before the Industrial Tribunal and the Labour Appellate Tribunal and all that this Court did was to fix an age of superannuation for workmen who had been employed prior to the date of the certification of the relevant Standing Order, at 60, and that course was adopted under the special and unusual circumstances expressly stated in the course of the judgment. As we have already pointed out, the question as to whether two sets of Standing Orders can be certified under the provisions of the Act, did not fall to be considered in that case. Therefore, we are satisfied that the Certifying Officer as well as the appellate authority committed no error of law in refusing to certify the modified Standing Orders submitted by the appellant in the present proceedings.
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25. The last case to which reference must be made is Guest, Keen, Williams Private Ltd. v. P. J. Sterling, 1960-1 SCR 348 : (AIR 1959 SC 1279 ). In that case, the Standing Order had been certified under the Act prior to its amendment. The relevant Standing Order had relation to the age of retirement of the employees under the establishment in question. When the Standing Order was certified, its fairness and reasonableness could not have been examined by the Certifying Authority. After it was certified, the employer sought to give effect to the age of retirement in regard to employees who were already in its employment; and that gave rise to an industrial dispute. The employees who were already in the employment of the employer, contended that prior to the certification of the Standing Order, there was no age of retirement in the concern and they urged that the certified Standing Order could not affect their right to continue in the employment so long as they were fit to discharge their duties. It was in the context of this dispute that the question arose as to whether the certified Standing Order applied to the previously existing employees. The Labour Appellate Tribunal against whose decision the appeal was brought to this Court by the appellant Guest, Keen Williams Private Ltd. had held that the certified Standing Order could not apply to the employees who were already in the employment of the appellant. This Court affirmed the view expressed by the Labour Appellate Tribunal that the certified Standing Order could not affect the rights of the previous employees; nevertheless, it was held that the question of prescribing an age of retirement for them could be considered in the proceedings before the Court and under the special circumstances to which reference has been made in the judgment, it was thought that the age of superannuation for prior employees could be reasonably and fairly fixed at 60 years. This decision again is not of any assistance, because the matter came to this Court from an industrial dispute which was the subject-matter of industrial adjudication before the Industrial Tribunal and the Labour Appellate Tribunal and all that this Court did was to fix an age of superannuation for workmen who had been employed prior to the date of the certification of the relevant Standing Order, at 60, and that course was adopted under the special and unusual circumstances expressly stated in the course of the judgment. As we have already pointed out, the question as to whether two sets of Standing Orders can be certified under the provisions of the Act, did not fall to be considered in that case. Therefore, we are satisfied that the Certifying Officer as well as the appellate authority committed no error of law in refusing to certify the modified Standing Orders submitted by the appellant in the present proceedings.Prior to the enactment of the Act, industrial establishment used to employ workmen on different terms and conditions of service and they used to enter into separate agreements with employees on an ad hoc basis. It was precisely with the object of avoiding this anomalous position that the Act has been passed and an obligation has been imposed upon the industrial establishments to have their Standing Orders certified by the appropriate authorities. Therefore, we do not think Mr. Setalvad is right in contending that it is open to an industrial establishment to have two sets of Standing Orders certified in relation to leave and holidays provided that the modified Standing Orders apply to future entrants and the existing Standing Orders apply to entrants who are already in the employment of the establishment.The result, therefore, appears to be that in regard to the certification of the Standing Order, the Act provides for aCode. The Certifying Officer is given the power to consider questions of fairness and reasonableness as well as the other question indicated by S. 4 (a) and (b). An appeal is provided against the decision of the Certifying Officer and in case a dispute arises as to the interpretation or the application of the Standing Order, a remedy is provided by S. 13A. Besides, as we have already pointed out, a right is given both to the employer and the workmen to move the appropriate authorities for modification of the existing Standing Orders. That is why we do not think that Mr. Setalvad is right in contending that the Certifying Officer as well as the appellate authority erred in law in refusing to certify the modified Standing Orders submitted by the appellant for certification.
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Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam, Kerala Vs. N. P. Ammalu | VENKATARAMIAH, J.1. These appeals by certificate are filed against the Judgment and order dated November 6, 1978 of the High Court of Kerala T. R. C. No. 154 of 1977 and T. R. C. No. 155 of 1977 which arose out of sales tax assessment proceeding under the Kerala General Sales Tax Act, 1963 (hereinafter referred to as the Act) for the years 1970-71 and 1971-72 respectively.2. The assessee Kelappan (since deceased) who was a dealer in ornaments and other jewels made of gold had filed a return showing a taxable turnover of Rs. 13, 757.65 for the year 1970-71. He did not, however, file any return for the year 1971-72. He claimed that he was liable to be taxed at one per cent on the taxable turnover relating to the purchase of ornaments and the articles of gold purchased by him under Section 5(1) of the Act read with Entry 56 of the First Schedule to the Act contending that the goods in question constituted bullion and specie. But the Sales Tax Officer, Badagara determined the taxable turnover at Rs 2, 73, 616.92 for the year 1970-71 and Rs 1, 84, 927.36 for the year 1971-72 and levied sales tax at three per cent of the taxable turnover under Section 5-A read with Section 5(1) (ii) of the Act. The appeals filed by the assessee against the said assessment orders were dismissed by the Appellate Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kozhikode. The assessee filed appeals before the Appellate Tribunal. The Tribunal allowed the appeals and determined the tax liability of the assessee in accordance with Entry 56 of the First Schedule to the Act. The revision petitions preferred by the Department before the High Court against the orders of the Tribunal were dismissed following the decision of that court in Deputy Commissioner of Sales Tax v. M/s. G. S. Pai & Co.(ILR (1978) 1 Ker 607 1980 SCC (Tax) 70 : AIR 1980 SC), decided on February 13, 1978. Thereafter the High Court granted certificates of fitness to the Department to file these appeals. Hence these appeals.3. The question involved in these cases is covered by the decision of this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue v. M/s G. S. Pai & Co.((1980) 1 SCR 938 : (1980) 1 SCC 142 : 611 : (1980) 45 STC 58 ) in which the decision of the High Court of Kerala in Deputy Commissioner of Sales Tax v. M/s G. S. Pai & Co.(ILR (1978) 1 Ker 607 1980 SCC (Tax) 70 : AIR 1980 SC) was reversed and it was held that the ornaments and other articles of gold purchased by the assessee therein did not fall within Entry 56 of the First Schedule to the Act but the turnover relating to them was taxable at the general rate of three per cent under Section 5-A read with Section 5(1) (ii) of the Act. Following the above decision of this Court, we set aside the decisions of the High Court and of the Tribunal and restore the orders of the Appellate Assistant Commissioner confirming the orders of the Sales Tax Officer. | 1[ds]3. The question involved in these cases is covered by the decision of this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue v. M/s G. S. Pai & Co.((1980) 1 SCR 938 : (1980) 1 SCC 142 : 611 : (1980) 45 STC 58 ) in which the decision of the High Court of Kerala in Deputy Commissioner of Sales Tax v. M/s G. S. Pai & Co.(ILR (1978) 1 Ker 607 1980 SCC (Tax) 70 : AIR 1980 SC) was reversed and it was held that the ornaments and other articles of gold purchased by the assessee therein did not fall within Entry 56 of the First Schedule to the Act but the turnover relating to them was taxable at the general rate of three per cent under Section 5-A read with Section 5(1) (ii) of the Act. Following the above decision of this Court, we set aside the decisions of the High Court and of the Tribunal and restore the orders of the Appellate Assistant Commissioner confirming the orders of the Sales Tax Officer. | 1 | 605 | 210 | ### Instruction:
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VENKATARAMIAH, J.1. These appeals by certificate are filed against the Judgment and order dated November 6, 1978 of the High Court of Kerala T. R. C. No. 154 of 1977 and T. R. C. No. 155 of 1977 which arose out of sales tax assessment proceeding under the Kerala General Sales Tax Act, 1963 (hereinafter referred to as the Act) for the years 1970-71 and 1971-72 respectively.2. The assessee Kelappan (since deceased) who was a dealer in ornaments and other jewels made of gold had filed a return showing a taxable turnover of Rs. 13, 757.65 for the year 1970-71. He did not, however, file any return for the year 1971-72. He claimed that he was liable to be taxed at one per cent on the taxable turnover relating to the purchase of ornaments and the articles of gold purchased by him under Section 5(1) of the Act read with Entry 56 of the First Schedule to the Act contending that the goods in question constituted bullion and specie. But the Sales Tax Officer, Badagara determined the taxable turnover at Rs 2, 73, 616.92 for the year 1970-71 and Rs 1, 84, 927.36 for the year 1971-72 and levied sales tax at three per cent of the taxable turnover under Section 5-A read with Section 5(1) (ii) of the Act. The appeals filed by the assessee against the said assessment orders were dismissed by the Appellate Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kozhikode. The assessee filed appeals before the Appellate Tribunal. The Tribunal allowed the appeals and determined the tax liability of the assessee in accordance with Entry 56 of the First Schedule to the Act. The revision petitions preferred by the Department before the High Court against the orders of the Tribunal were dismissed following the decision of that court in Deputy Commissioner of Sales Tax v. M/s. G. S. Pai & Co.(ILR (1978) 1 Ker 607 1980 SCC (Tax) 70 : AIR 1980 SC), decided on February 13, 1978. Thereafter the High Court granted certificates of fitness to the Department to file these appeals. Hence these appeals.3. The question involved in these cases is covered by the decision of this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue v. M/s G. S. Pai & Co.((1980) 1 SCR 938 : (1980) 1 SCC 142 : 611 : (1980) 45 STC 58 ) in which the decision of the High Court of Kerala in Deputy Commissioner of Sales Tax v. M/s G. S. Pai & Co.(ILR (1978) 1 Ker 607 1980 SCC (Tax) 70 : AIR 1980 SC) was reversed and it was held that the ornaments and other articles of gold purchased by the assessee therein did not fall within Entry 56 of the First Schedule to the Act but the turnover relating to them was taxable at the general rate of three per cent under Section 5-A read with Section 5(1) (ii) of the Act. Following the above decision of this Court, we set aside the decisions of the High Court and of the Tribunal and restore the orders of the Appellate Assistant Commissioner confirming the orders of the Sales Tax Officer.
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3. The question involved in these cases is covered by the decision of this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue v. M/s G. S. Pai & Co.((1980) 1 SCR 938 : (1980) 1 SCC 142 : 611 : (1980) 45 STC 58 ) in which the decision of the High Court of Kerala in Deputy Commissioner of Sales Tax v. M/s G. S. Pai & Co.(ILR (1978) 1 Ker 607 1980 SCC (Tax) 70 : AIR 1980 SC) was reversed and it was held that the ornaments and other articles of gold purchased by the assessee therein did not fall within Entry 56 of the First Schedule to the Act but the turnover relating to them was taxable at the general rate of three per cent under Section 5-A read with Section 5(1) (ii) of the Act. Following the above decision of this Court, we set aside the decisions of the High Court and of the Tribunal and restore the orders of the Appellate Assistant Commissioner confirming the orders of the Sales Tax Officer.
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Meharbansingh Vs. Bhagwantsingh and Others | Bhind, he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other law. Reference in this connection may be made to the decision of this Court in Mahabir Gope and others v. Harbans Narain Singh and others(1) where the law has been laid down as follows, -"The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will inure beyond the termination of his interest as mortgagee. Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is destructive or permanently injurious to the property; see section 76, sub-clauses (a) &(e) of the Transfer of Property Act. It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption."Care was taken to state further in that case that if during the permissible settlement by a mortgagee in possession with a tenant in the course of prudent management, any right sprang up in the tenant by conferral or creation by statute, that would be a "different matter altogether", for that would then be an "exception to the general rule." 13. The decision in Mahabir Gope s case (Supra) was applied or was followed in Harihar Prasad Singh and another v. Mst. of Munshi Nath Prasad and others(2) where it was held as follows, -"As the mortgagees are neither proprietors nor tenure holders as defined in the Act, the tenants holding under them could not claim to be raiyats as defined in sections 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of the Act." That decision was again followed in Asa Ram and another v. Mst. Ram Kali and another(1) also, and was held as follows, - "But where there is no such prohibition, the only consequence is that the parties will be thrown back on their rights under the Transfer of Property Act, and the lessees must still establish that the lease is blinding on the mortgagors under s.76(a) of that Act." 14. Reference may also be made to Prabhu v. Ramdev and others(2) where again reference was made to t he decision in Mahabir Gope (supra) and the legal position was reiterated as follows, -"Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted in to the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation . That is precisely what has happened in the present case. During the continuance of the mortgage s. 15 of the Act came into operation and that made the respondents Khatadars who are entitled to claim the benefit of s. 161 of the Act." 15. It is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has not been shown to intervene for their protection. As, in the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession. A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub-section (2) of section 4 of the Act. In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Courts decision in Haji Sk. Subhans case (supra). That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority o f this Courts decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute. 16. | 1[ds]There can be no doubt, therefore, that the trial court recorded the finding, on the basis of the evidence before it, that the suit lands were recorded as the khud-kasht lands of the plaintiffs before the date of the vesting of the estate. That was in fact not disputed in the High CourtAll that the High Court had then to do was to decide whether the appellant was entitled to the benefit of sub-section (2) of section 4 of the Act, for that was the clear direction of this Court in the earlier judgment. It is not disputed before us that the plaintiffs were the proprietors of the suit lands, and it cannot be disputed that as they mortgaged them with possession with defendant Munshi Singh, they were themselves in possession upto the date of the mortgage, and as it has been found as a fact that the lands were recorded as khud-kasht lands of the mortgagors in the annual village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of sub-section (2) of section 4 and there was no occasion for the High Court to examine the consequence of their losing the possession of the lands after the mortgage. It has to be appreciated that possession is always lost by the mortgagor in the case of a mort gage with possession. But when clause (f) of sub-section (1) of section 4 gave the mortgagor the benefit of sub-section (2) of that section to claim the right to remain in possession of his khud-kasht land which was in his possession upto the d ate of mortgage, if the strict requirement of sub-section (2) was shown to exist, there could be no reason why it should be denied to the plaintiffs.It may be mentioned in this connection that when the case came up in first appeal before the Second Additional District Judge of Bhind, he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other lawIt is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has not been shown to intervene for their protection. As, in the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession. A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub-section(2) of section 4 of the Act.In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Courts decision in Haji Sk. Subhans case (supra). That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority o f this Courts decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute. | 1 | 4,031 | 769 | ### Instruction:
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Bhind, he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other law. Reference in this connection may be made to the decision of this Court in Mahabir Gope and others v. Harbans Narain Singh and others(1) where the law has been laid down as follows, -"The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will inure beyond the termination of his interest as mortgagee. Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is destructive or permanently injurious to the property; see section 76, sub-clauses (a) &(e) of the Transfer of Property Act. It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption."Care was taken to state further in that case that if during the permissible settlement by a mortgagee in possession with a tenant in the course of prudent management, any right sprang up in the tenant by conferral or creation by statute, that would be a "different matter altogether", for that would then be an "exception to the general rule." 13. The decision in Mahabir Gope s case (Supra) was applied or was followed in Harihar Prasad Singh and another v. Mst. of Munshi Nath Prasad and others(2) where it was held as follows, -"As the mortgagees are neither proprietors nor tenure holders as defined in the Act, the tenants holding under them could not claim to be raiyats as defined in sections 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of the Act." That decision was again followed in Asa Ram and another v. Mst. Ram Kali and another(1) also, and was held as follows, - "But where there is no such prohibition, the only consequence is that the parties will be thrown back on their rights under the Transfer of Property Act, and the lessees must still establish that the lease is blinding on the mortgagors under s.76(a) of that Act." 14. Reference may also be made to Prabhu v. Ramdev and others(2) where again reference was made to t he decision in Mahabir Gope (supra) and the legal position was reiterated as follows, -"Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted in to the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation . That is precisely what has happened in the present case. During the continuance of the mortgage s. 15 of the Act came into operation and that made the respondents Khatadars who are entitled to claim the benefit of s. 161 of the Act." 15. It is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has not been shown to intervene for their protection. As, in the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession. A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub-section (2) of section 4 of the Act. In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Courts decision in Haji Sk. Subhans case (supra). That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority o f this Courts decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute. 16.
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There can be no doubt, therefore, that the trial court recorded the finding, on the basis of the evidence before it, that the suit lands were recorded as the khud-kasht lands of the plaintiffs before the date of the vesting of the estate. That was in fact not disputed in the High CourtAll that the High Court had then to do was to decide whether the appellant was entitled to the benefit of sub-section (2) of section 4 of the Act, for that was the clear direction of this Court in the earlier judgment. It is not disputed before us that the plaintiffs were the proprietors of the suit lands, and it cannot be disputed that as they mortgaged them with possession with defendant Munshi Singh, they were themselves in possession upto the date of the mortgage, and as it has been found as a fact that the lands were recorded as khud-kasht lands of the mortgagors in the annual village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of sub-section (2) of section 4 and there was no occasion for the High Court to examine the consequence of their losing the possession of the lands after the mortgage. It has to be appreciated that possession is always lost by the mortgagor in the case of a mort gage with possession. But when clause (f) of sub-section (1) of section 4 gave the mortgagor the benefit of sub-section (2) of that section to claim the right to remain in possession of his khud-kasht land which was in his possession upto the d ate of mortgage, if the strict requirement of sub-section (2) was shown to exist, there could be no reason why it should be denied to the plaintiffs.It may be mentioned in this connection that when the case came up in first appeal before the Second Additional District Judge of Bhind, he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other lawIt is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has not been shown to intervene for their protection. As, in the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession. A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub-section(2) of section 4 of the Act.In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Courts decision in Haji Sk. Subhans case (supra). That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority o f this Courts decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute.
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THE STATE OF GOA Vs. DR. ALVARO ALBERTO MOUSINHO DE NORONHA FERREIRA | for inspection of the site proposed. It would also be relevant to point out that after the officers submitted the reports, as required, the respondent submitted an affidavit-cum-indemnity bond on 19.07.2013. The relevant portion of the same reads as follows:?7. I further say that, myself along with my said brother shall not request the Government for the refund of conversion fees or part of conversion fees paid hereinafter for conversion of said land, except in case where we are not allowed to develop the land by any government authority and or agency.?16. It was thereafter that the order dated 19.09.2013 was passed. After depositing the amount and taking necessary permissions, the writ petition was filed.17. We are of the view that the situation in the present case is totally different from the cases referred to by the High Court. In the cases decided by this Court, there was no provision similar to Section 32 of the Code. Section 32 lays down certain timelines and gives a right to the land owners to file an appeal if the timeline is not adhered to by the department. The application in the present case was filed on 08.03.2013 and 60 days expired on 07.05.2013. The land owner could have filed an appeal immediately thereafter to the appellate authority which was obliged to decide it within 30 days. This was not done. In fact, even after the amendment was made on 22.05.2013, no appeal was filed. No doubt, there is a delay in terms of the timelines laid down in Section 32 but the delay cannot be said to be too much. Furthermore, the respondent waived any rights which may have accrued to them in terms of Section 32 by not filing an appeal. Further, the respondent has acquiesced and consented to conversion charges being paid in accordance with the amended provisions by filing the affidavit¬cum-indemnity bond, referred to above.18. It was contended by Mr. Dhruv Mehta, learned senior counsel appearing for the respondent that this indemnity bond was a result of coercion by the authorities, who insisted on the said indemnity bond being filed before granting permission. We are not impressed with this argument. In the writ petition filed by the respondent, the only averment made in this regard is that respondent was required to submit the said indemnity bond to the Office of the Deputy Collector. The relevant portion of the writ petition reads as follows:?7. On 19/07/2013, the Petitioner submitted Affidavit¬ cum-Indemnity Bond, which the Petitioner was required to submit to the Office of the Deputy Collector (Revenue) ……8. At the time of presenting the said Affidavit¬cum¬ Indemnity Bond, the Petitioner?s representative was told, that the issuance of the Conversion Sanad, might be delayed further, as confusion had arisen in the Office of the Deputy Collector (Revenue), in the matter…...?19. We also cannot lose sight of the fact that the respondent had only sought permission for conversion of 16014 sq. mtrs. of land but on consideration of the plan submitted by the respondent before the Town and Country Planning the total requirement of land was 25368.50 sq. mtrs. and, therefore, permission was granted for this 25368.50 sq. mtrs. The confusion arose because of the area which the applicant applied for and this led to delay in the decision of the matter.20. Though from the record it is not very clear on which date the application was filed for conversion of the excess 9354.50 sq. mtrs. of land but the finding of the High Court is clear that the application for this additional area which came to be included by a separate addendum to the original application was filed only after the amendment came into force. This portion of the judgment has not been challenged by the respondent. It is, thus, apparent that the land actually required to be converted was 25368.50 sq. mtrs. and, therefore, a complete application could be said to have been filed only after the addendum was added.21. Even if we were to ignore the addendum, it is obvious that by applying for a smaller area than what was actually required, the respondent and his family members themselves created a confusion which also was partly responsible for the delay in grant of permission. This is not a case where the delay is very large and we are of the view that the respondent also contributed to the delay by not applying for the conversion of the entire extent of land in one go. Furthermore, as pointed out above, the respondent did not even file an appeal. 22. It is in this factual background that we have to consider the affidavit¬cum-indemnity bond filed by the respondent. In our view, there was no coercion in the matter. The respondent was not forced to file such an affidavit. They may have been asked to do so but they could have refused to file it. Nothing has been placed on record to even remotely undertake that undue pressure was put upon the respondent to file such an affidavit. In this affidavit he undertook to pay the conversion charges as demanded. He also undertook not to challenge the imposition of conversion charges. Most importantly, he also undertook not to sue for recovery of any excess conversion charges. The respondent deposited this amount, though under protest. Thereafter, he obtained all necessary permissions and after Sanad and all other documents were prepared, he chose to challenge the order. In our view, the respondent cannot be permitted to challenge the levy of conversion charges at the rates, post amendment, on account of his acts, deeds and conduct and acquiescence to the said order.23. In view of the above discussion, we hold that in the facts of the present case, the appellants rightly imposed the conversion charges as on the date of decision to grant Sanad, which is the legal position. We further hold that the respondent was not entitled to challenge the levy of these conversion charges in view of his own acts, deeds and conduct. | 1[ds]7. As far as the judgment in Mahajan Industries case (supra) is concerned, the judgment is based on the concession of the counsel for the appellant that he did not dispute the correctness of the judgment of the Delhi High Court in Ansal & Saigal Properties (P) Ltd. (supra). The Court further held that in terms of the said judgment the crucial date for calculating the conversion charges is the date of receipt of the application. This Court further held that the application filed by the original owners on 25.03.1981 through their general power of attorney for change of land use had never been rejected and was still pending and it was in these circumstances that the Union of India was directed to take a final decision on conversion of land use as expeditiously as possible but conversion charges would be payable as on the date of application for conversion. According to us, this judgment is based on a concession and cannot be used by the respondent and has been wrongly relied upon by the High Court.8. In Dev Raj Gupta?s case (supra), there were various questions raised. One of the questions was – when was the application properly constituted; and the other was, what was the appropriate date for fixing the conversion charges? The High Court held that a proper application for conversion had been filed by the land owners on 15.02.1978. The High Court further held that in view of the provision in the Master Plan declaring the area in question in which the leased land was situate as commercial zone, there was automatic and statutory conversion and no application for conversion was necessary. It was also held that it was the rate of 1978 which would apply and not the rate of April, 1981. This Court held that an application for conversion was required and a proper application in this behalf was filed only on 27.02.1981. This Court held that the sanction was given by the authority concerned to convert the user of land on 12.01.1984 and the Union of India had failed to explain the delay of 3 years in replying to the application for conversion filed on 27.02.1981 and it was in these facts it was held that the conversion charges should be fixed as on 27.02.1981.9. As far as the judgment of the Delhi High Court in the case of Ansal & Saigal Properties (P) Ltd. (supra) is concerned, on careful perusal of the same we find that that judgment has been delivered in the facts of the case. There was no provision for levying of conversion fees from a particular date. In the present case, Section 32 of the Code is applicable and there was no such provision before the Delhi High Court. Therefore, in our view, that judgment has no applicability to the facts and circumstances of the case.The question of payment of conversion fees arises only when a decision is taken to grant a Sanad. Therefore, the relevant date for fixing the conversion charges will be the date on which the decision is taken to grant the Sanad. In the present case, that date appears to be 19.09.2013. The amount determined by the Collector was deposited by the land owners on 09.10.2013 though under protest reserving their right to challenge the fixation of the date on which the conversion charges were to be levied.We are of the view that the situation in the present case is totally different from the cases referred to by the High Court. In the cases decided by this Court, there was no provision similar to Section 32 of the Code. Section 32 lays down certain timelines and gives a right to the land owners to file an appeal if the timeline is not adhered to by the department. The application in the present case was filed on 08.03.2013 and 60 days expired on 07.05.2013. The land owner could have filed an appeal immediately thereafter to the appellate authority which was obliged to decide it within 30 days. This was not done. In fact, even after the amendment was made on 22.05.2013, no appeal was filed. No doubt, there is a delay in terms of the timelines laid down in Section 32 but the delay cannot be said to be too much. Furthermore, the respondent waived any rights which may have accrued to them in terms of Section 32 by not filing an appeal. Further, the respondent has acquiesced and consented to conversion charges being paid in accordance with the amended provisions by filing the affidavit¬cum-indemnity bond, referred to above.18. It was contended by Mr. Dhruv Mehta, learned senior counsel appearing for the respondent that this indemnity bond was a result of coercion by the authorities, who insisted on the said indemnity bond being filed before granting permission. We are not impressed with this argument. In the writ petition filed by the respondent, the only averment made in this regard is that respondent was required to submit the said indemnity bond to the Office of the Deputy Collector.We also cannot lose sight of the fact that the respondent had only sought permission for conversion of 16014 sq. mtrs. of land but on consideration of the plan submitted by the respondent before the Town and Country Planning the total requirement of land was 25368.50 sq. mtrs. and, therefore, permission was granted for this 25368.50 sq. mtrs. The confusion arose because of the area which the applicant applied for and this led to delay in the decision of the matter.20. Though from the record it is not very clear on which date the application was filed for conversion of the excess 9354.50 sq. mtrs. of land but the finding of the High Court is clear that the application for this additional area which came to be included by a separate addendum to the original application was filed only after the amendment came into force. This portion of the judgment has not been challenged by the respondent. It is, thus, apparent that the land actually required to be converted was 25368.50 sq. mtrs. and, therefore, a complete application could be said to have been filed only after the addendum was added.21. Even if we were to ignore the addendum, it is obvious that by applying for a smaller area than what was actually required, the respondent and his family members themselves created a confusion which also was partly responsible for the delay in grant of permission. This is not a case where the delay is very large and we are of the view that the respondent also contributed to the delay by not applying for the conversion of the entire extent of land in one go. Furthermore, as pointed out above, the respondent did not even file an appeal. 22. It is in this factual background that we have to consider the affidavit¬cum-indemnity bond filed by the respondent. In our view, there was no coercion in the matter. The respondent was not forced to file such an affidavit. They may have been asked to do so but they could have refused to file it. Nothing has been placed on record to even remotely undertake that undue pressure was put upon the respondent to file such an affidavit. In this affidavit he undertook to pay the conversion charges as demanded. He also undertook not to challenge the imposition of conversion charges. Most importantly, he also undertook not to sue for recovery of any excess conversion charges. The respondent deposited this amount, though under protest. Thereafter, he obtained all necessary permissions and after Sanad and all other documents were prepared, he chose to challenge the order. In our view, the respondent cannot be permitted to challenge the levy of conversion charges at the rates, post amendment, on account of his acts, deeds and conduct and acquiescence to the said order.23. In view of the above discussion, we hold that in the facts of the present case, the appellants rightly imposed the conversion charges as on the date of decision to grant Sanad, which is the legal position. We further hold that the respondent was not entitled to challenge the levy of these conversion charges in view of his own acts, deeds and conduct. | 1 | 3,079 | 1,500 | ### 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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for inspection of the site proposed. It would also be relevant to point out that after the officers submitted the reports, as required, the respondent submitted an affidavit-cum-indemnity bond on 19.07.2013. The relevant portion of the same reads as follows:?7. I further say that, myself along with my said brother shall not request the Government for the refund of conversion fees or part of conversion fees paid hereinafter for conversion of said land, except in case where we are not allowed to develop the land by any government authority and or agency.?16. It was thereafter that the order dated 19.09.2013 was passed. After depositing the amount and taking necessary permissions, the writ petition was filed.17. We are of the view that the situation in the present case is totally different from the cases referred to by the High Court. In the cases decided by this Court, there was no provision similar to Section 32 of the Code. Section 32 lays down certain timelines and gives a right to the land owners to file an appeal if the timeline is not adhered to by the department. The application in the present case was filed on 08.03.2013 and 60 days expired on 07.05.2013. The land owner could have filed an appeal immediately thereafter to the appellate authority which was obliged to decide it within 30 days. This was not done. In fact, even after the amendment was made on 22.05.2013, no appeal was filed. No doubt, there is a delay in terms of the timelines laid down in Section 32 but the delay cannot be said to be too much. Furthermore, the respondent waived any rights which may have accrued to them in terms of Section 32 by not filing an appeal. Further, the respondent has acquiesced and consented to conversion charges being paid in accordance with the amended provisions by filing the affidavit¬cum-indemnity bond, referred to above.18. It was contended by Mr. Dhruv Mehta, learned senior counsel appearing for the respondent that this indemnity bond was a result of coercion by the authorities, who insisted on the said indemnity bond being filed before granting permission. We are not impressed with this argument. In the writ petition filed by the respondent, the only averment made in this regard is that respondent was required to submit the said indemnity bond to the Office of the Deputy Collector. The relevant portion of the writ petition reads as follows:?7. On 19/07/2013, the Petitioner submitted Affidavit¬ cum-Indemnity Bond, which the Petitioner was required to submit to the Office of the Deputy Collector (Revenue) ……8. At the time of presenting the said Affidavit¬cum¬ Indemnity Bond, the Petitioner?s representative was told, that the issuance of the Conversion Sanad, might be delayed further, as confusion had arisen in the Office of the Deputy Collector (Revenue), in the matter…...?19. We also cannot lose sight of the fact that the respondent had only sought permission for conversion of 16014 sq. mtrs. of land but on consideration of the plan submitted by the respondent before the Town and Country Planning the total requirement of land was 25368.50 sq. mtrs. and, therefore, permission was granted for this 25368.50 sq. mtrs. The confusion arose because of the area which the applicant applied for and this led to delay in the decision of the matter.20. Though from the record it is not very clear on which date the application was filed for conversion of the excess 9354.50 sq. mtrs. of land but the finding of the High Court is clear that the application for this additional area which came to be included by a separate addendum to the original application was filed only after the amendment came into force. This portion of the judgment has not been challenged by the respondent. It is, thus, apparent that the land actually required to be converted was 25368.50 sq. mtrs. and, therefore, a complete application could be said to have been filed only after the addendum was added.21. Even if we were to ignore the addendum, it is obvious that by applying for a smaller area than what was actually required, the respondent and his family members themselves created a confusion which also was partly responsible for the delay in grant of permission. This is not a case where the delay is very large and we are of the view that the respondent also contributed to the delay by not applying for the conversion of the entire extent of land in one go. Furthermore, as pointed out above, the respondent did not even file an appeal. 22. It is in this factual background that we have to consider the affidavit¬cum-indemnity bond filed by the respondent. In our view, there was no coercion in the matter. The respondent was not forced to file such an affidavit. They may have been asked to do so but they could have refused to file it. Nothing has been placed on record to even remotely undertake that undue pressure was put upon the respondent to file such an affidavit. In this affidavit he undertook to pay the conversion charges as demanded. He also undertook not to challenge the imposition of conversion charges. Most importantly, he also undertook not to sue for recovery of any excess conversion charges. The respondent deposited this amount, though under protest. Thereafter, he obtained all necessary permissions and after Sanad and all other documents were prepared, he chose to challenge the order. In our view, the respondent cannot be permitted to challenge the levy of conversion charges at the rates, post amendment, on account of his acts, deeds and conduct and acquiescence to the said order.23. In view of the above discussion, we hold that in the facts of the present case, the appellants rightly imposed the conversion charges as on the date of decision to grant Sanad, which is the legal position. We further hold that the respondent was not entitled to challenge the levy of these conversion charges in view of his own acts, deeds and conduct.
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held that the conversion charges should be fixed as on 27.02.1981.9. As far as the judgment of the Delhi High Court in the case of Ansal & Saigal Properties (P) Ltd. (supra) is concerned, on careful perusal of the same we find that that judgment has been delivered in the facts of the case. There was no provision for levying of conversion fees from a particular date. In the present case, Section 32 of the Code is applicable and there was no such provision before the Delhi High Court. Therefore, in our view, that judgment has no applicability to the facts and circumstances of the case.The question of payment of conversion fees arises only when a decision is taken to grant a Sanad. Therefore, the relevant date for fixing the conversion charges will be the date on which the decision is taken to grant the Sanad. In the present case, that date appears to be 19.09.2013. The amount determined by the Collector was deposited by the land owners on 09.10.2013 though under protest reserving their right to challenge the fixation of the date on which the conversion charges were to be levied.We are of the view that the situation in the present case is totally different from the cases referred to by the High Court. In the cases decided by this Court, there was no provision similar to Section 32 of the Code. Section 32 lays down certain timelines and gives a right to the land owners to file an appeal if the timeline is not adhered to by the department. The application in the present case was filed on 08.03.2013 and 60 days expired on 07.05.2013. The land owner could have filed an appeal immediately thereafter to the appellate authority which was obliged to decide it within 30 days. This was not done. In fact, even after the amendment was made on 22.05.2013, no appeal was filed. No doubt, there is a delay in terms of the timelines laid down in Section 32 but the delay cannot be said to be too much. Furthermore, the respondent waived any rights which may have accrued to them in terms of Section 32 by not filing an appeal. Further, the respondent has acquiesced and consented to conversion charges being paid in accordance with the amended provisions by filing the affidavit¬cum-indemnity bond, referred to above.18. It was contended by Mr. Dhruv Mehta, learned senior counsel appearing for the respondent that this indemnity bond was a result of coercion by the authorities, who insisted on the said indemnity bond being filed before granting permission. We are not impressed with this argument. In the writ petition filed by the respondent, the only averment made in this regard is that respondent was required to submit the said indemnity bond to the Office of the Deputy Collector.We also cannot lose sight of the fact that the respondent had only sought permission for conversion of 16014 sq. mtrs. of land but on consideration of the plan submitted by the respondent before the Town and Country Planning the total requirement of land was 25368.50 sq. mtrs. and, therefore, permission was granted for this 25368.50 sq. mtrs. The confusion arose because of the area which the applicant applied for and this led to delay in the decision of the matter.20. Though from the record it is not very clear on which date the application was filed for conversion of the excess 9354.50 sq. mtrs. of land but the finding of the High Court is clear that the application for this additional area which came to be included by a separate addendum to the original application was filed only after the amendment came into force. This portion of the judgment has not been challenged by the respondent. It is, thus, apparent that the land actually required to be converted was 25368.50 sq. mtrs. and, therefore, a complete application could be said to have been filed only after the addendum was added.21. Even if we were to ignore the addendum, it is obvious that by applying for a smaller area than what was actually required, the respondent and his family members themselves created a confusion which also was partly responsible for the delay in grant of permission. This is not a case where the delay is very large and we are of the view that the respondent also contributed to the delay by not applying for the conversion of the entire extent of land in one go. Furthermore, as pointed out above, the respondent did not even file an appeal. 22. It is in this factual background that we have to consider the affidavit¬cum-indemnity bond filed by the respondent. In our view, there was no coercion in the matter. The respondent was not forced to file such an affidavit. They may have been asked to do so but they could have refused to file it. Nothing has been placed on record to even remotely undertake that undue pressure was put upon the respondent to file such an affidavit. In this affidavit he undertook to pay the conversion charges as demanded. He also undertook not to challenge the imposition of conversion charges. Most importantly, he also undertook not to sue for recovery of any excess conversion charges. The respondent deposited this amount, though under protest. Thereafter, he obtained all necessary permissions and after Sanad and all other documents were prepared, he chose to challenge the order. In our view, the respondent cannot be permitted to challenge the levy of conversion charges at the rates, post amendment, on account of his acts, deeds and conduct and acquiescence to the said order.23. In view of the above discussion, we hold that in the facts of the present case, the appellants rightly imposed the conversion charges as on the date of decision to grant Sanad, which is the legal position. We further hold that the respondent was not entitled to challenge the levy of these conversion charges in view of his own acts, deeds and conduct.
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DELHI ADMINISTRATION THR. SECRETARY, LAND AND BUILDING DEPARTMENT & ORS Vs. PAWAN KUMAR & ORS | the Court of Additional District Judge on 30.12.2013. The High Court passed the following order on 30.12.2013:- 2. As vaguely pleaded in para 10 and as orally explained, the urgency to file these petitions is that if compensation assessed is not paid or deposited the proceedings under the Land Acquisition Act, 1894 lapse. 3. It is pleaded in paragraph 4 that the concerned Court is presently closed during winter vacations and shall reopen on January 02, 2014. 4. Enclosed with the petitions as Annexure-2 are cheques drawn in the name of ADJ, Delhi. 5. A meaningful reading of the petition would reveal that the intentment is to tender the amounts on or before December 31, 2013. 6. The petitions stand disposed of recording that without prejudice to the rights and contentions of the land holders the cheques tendered in each petition (being Annexure P-2) would be treated as a tender to the Court of the learned Additional District Judge Delhi as of today i.e. December 30, 2013. 7. The Registry is directed to remove the cheques annexed as Annexure 2 and keep them in safe custody till reopening of the Court. On the reopening the cheques shall be sent to the Court of the concerned Additional District Judge Delhi................... 8. We have heard learned counsel for the parties and find that the order of the High Court cannot be sustained in law for two reasons. Firstly, the respondent is a purchaser after the publication of notice under Sections 4 and 6 of the Act and in fact after the award of the Land Acquisition Collector. Therefore, for the reasons recorded in a separate judgment delivered today in the matter of Delhi Development Authority v. Godfrey Phillips (I) Ltd. (Civil Appeal No. 3073 of 2022), subsequent purchaser is not entitled to claim lapsing of the proceedings under the 2013 Act. 9. Secondly, the finding that compensation was not offered to the land owners and therefore the deposit in the Court cannot be regarded as payment of compensation is again not tenable in view of the judgment in Manohar Lal wherein this Court held as under: 202. Section 24(2) deals with the expression where compensation has not been paid. It would mean that it has not been tendered for payment under Section 31(1). xxx xxx xxx 205. The word paid in Section 31(1) to the landowner cannot include in its ambit the expression deposited in court. Deposit cannot be said to be payment made to landowners. Deposit is on being prevented from payment. However, in case there is a tender of the amount that is to mean amount is made available to the landowner that would be a discharge of the obligation to make the payment and in that event such a person cannot be penalised for the default in making the payment. In default to deposit in court, the liability is to make the payment of interest under Section 34 of the 1894 Act. xxx xxx xxx 207. In our considered opinion, there is a breach of obligation to deposit even if it is taken that amount to be deposited in the Reference Court in exigencies being prevented from payment as provided in Section 31(2). The default will not have the effect of reopening the concluded proceedings. The legal position and consequence which prevailed from 1893 till 2013 on failure to deposit was only the liability for interest and all those transactions were never sought to be invalidated by the provisions contained in Section 24. It is only in the case where in a pending proceeding for a period of five years or more, the steps have not been taken for taking possession and for payment of compensation, then there is a lapse under Section 24(2). In case amount has not been deposited with respect to majority of landholdings, higher compensation has to follow. Both lapse and higher compensation are qualified with the condition of period of 5 years or more. 208. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. In case a person has not accepted the amount wants to take the advantage of non-payment, though the amount has remained (sic unpaid) due to his own act. It is not open to him to contend that the amount has not been paid to him, as such, there should be lapse of the proceedings. Even in a case when offer for payment has been made but not deposited, liability to pay amount along with interest subsist and if not deposited for majority of holding, for that adequate provisions have been given in the proviso also to Section 24(2). The scheme of the 2013 Act in Sections 77 and 80 is also the same as that provided in Sections 31 and 34 of the 1894 Act. xxx xxx xxx 366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. | 0[ds]8. We have heard learned counsel for the parties and find that the order of the High Court cannot be sustained in law for two reasons. Firstly, the respondent is a purchaser after the publication of notice under Sections 4 and 6 of the Act and in fact after the award of the Land Acquisition Collector. Therefore, for the reasons recorded in a separate judgment delivered today in the matter of Delhi Development Authority v. Godfrey Phillips (I) Ltd. (Civil Appeal No. 3073 of 2022), subsequent purchaser is not entitled to claim lapsing of the proceedings under the 2013 Act.9. Secondly, the finding that compensation was not offered to the land owners and therefore the deposit in the Court cannot be regarded as payment of compensation is again not tenable in view of the judgment in Manohar Lal wherein this Court held as under:202. Section 24(2) deals with the expression where compensation has not been paid. It would mean that it has not been tendered for payment under Section 31(1).205. The word paid in Section 31(1) to the landowner cannot include in its ambit the expression deposited in court. Deposit cannot be said to be payment made to landowners. Deposit is on being prevented from payment. However, in case there is a tender of the amount that is to mean amount is made available to the landowner that would be a discharge of the obligation to make the payment and in that event such a person cannot be penalised for the default in making the payment. In default to deposit in court, the liability is to make the payment of interest under Section 34 of the 1894 Act.207. In our considered opinion, there is a breach of obligation to deposit even if it is taken that amount to be deposited in the Reference Court in exigencies being prevented from payment as provided in Section 31(2). The default will not have the effect of reopening the concluded proceedings. The legal position and consequence which prevailed from 1893 till 2013 on failure to deposit was only the liability for interest and all those transactions were never sought to be invalidated by the provisions contained in Section 24. It is only in the case where in a pending proceeding for a period of five years or more, the steps have not been taken for taking possession and for payment of compensation, then there is a lapse under Section 24(2). In case amount has not been deposited with respect to majority of landholdings, higher compensation has to follow. Both lapse and higher compensation are qualified with the condition of period of 5 years or more.208. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. In case a person has not accepted the amount wants to take the advantage of non-payment, though the amount has remained (sic unpaid) due to his own act. It is not open to him to contend that the amount has not been paid to him, as such, there should be lapse of the proceedings. Even in a case when offer for payment has been made but not deposited, liability to pay amount along with interest subsist and if not deposited for majority of holding, for that adequate provisions have been given in the proviso also to Section 24(2). The scheme of the 2013 Act in Sections 77 and 80 is also the same as that provided in Sections 31 and 34 of the 1894 Act.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. | 0 | 1,906 | 873 | ### Instruction:
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the Court of Additional District Judge on 30.12.2013. The High Court passed the following order on 30.12.2013:- 2. As vaguely pleaded in para 10 and as orally explained, the urgency to file these petitions is that if compensation assessed is not paid or deposited the proceedings under the Land Acquisition Act, 1894 lapse. 3. It is pleaded in paragraph 4 that the concerned Court is presently closed during winter vacations and shall reopen on January 02, 2014. 4. Enclosed with the petitions as Annexure-2 are cheques drawn in the name of ADJ, Delhi. 5. A meaningful reading of the petition would reveal that the intentment is to tender the amounts on or before December 31, 2013. 6. The petitions stand disposed of recording that without prejudice to the rights and contentions of the land holders the cheques tendered in each petition (being Annexure P-2) would be treated as a tender to the Court of the learned Additional District Judge Delhi as of today i.e. December 30, 2013. 7. The Registry is directed to remove the cheques annexed as Annexure 2 and keep them in safe custody till reopening of the Court. On the reopening the cheques shall be sent to the Court of the concerned Additional District Judge Delhi................... 8. We have heard learned counsel for the parties and find that the order of the High Court cannot be sustained in law for two reasons. Firstly, the respondent is a purchaser after the publication of notice under Sections 4 and 6 of the Act and in fact after the award of the Land Acquisition Collector. Therefore, for the reasons recorded in a separate judgment delivered today in the matter of Delhi Development Authority v. Godfrey Phillips (I) Ltd. (Civil Appeal No. 3073 of 2022), subsequent purchaser is not entitled to claim lapsing of the proceedings under the 2013 Act. 9. Secondly, the finding that compensation was not offered to the land owners and therefore the deposit in the Court cannot be regarded as payment of compensation is again not tenable in view of the judgment in Manohar Lal wherein this Court held as under: 202. Section 24(2) deals with the expression where compensation has not been paid. It would mean that it has not been tendered for payment under Section 31(1). xxx xxx xxx 205. The word paid in Section 31(1) to the landowner cannot include in its ambit the expression deposited in court. Deposit cannot be said to be payment made to landowners. Deposit is on being prevented from payment. However, in case there is a tender of the amount that is to mean amount is made available to the landowner that would be a discharge of the obligation to make the payment and in that event such a person cannot be penalised for the default in making the payment. In default to deposit in court, the liability is to make the payment of interest under Section 34 of the 1894 Act. xxx xxx xxx 207. In our considered opinion, there is a breach of obligation to deposit even if it is taken that amount to be deposited in the Reference Court in exigencies being prevented from payment as provided in Section 31(2). The default will not have the effect of reopening the concluded proceedings. The legal position and consequence which prevailed from 1893 till 2013 on failure to deposit was only the liability for interest and all those transactions were never sought to be invalidated by the provisions contained in Section 24. It is only in the case where in a pending proceeding for a period of five years or more, the steps have not been taken for taking possession and for payment of compensation, then there is a lapse under Section 24(2). In case amount has not been deposited with respect to majority of landholdings, higher compensation has to follow. Both lapse and higher compensation are qualified with the condition of period of 5 years or more. 208. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. In case a person has not accepted the amount wants to take the advantage of non-payment, though the amount has remained (sic unpaid) due to his own act. It is not open to him to contend that the amount has not been paid to him, as such, there should be lapse of the proceedings. Even in a case when offer for payment has been made but not deposited, liability to pay amount along with interest subsist and if not deposited for majority of holding, for that adequate provisions have been given in the proviso also to Section 24(2). The scheme of the 2013 Act in Sections 77 and 80 is also the same as that provided in Sections 31 and 34 of the 1894 Act. xxx xxx xxx 366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.
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8. We have heard learned counsel for the parties and find that the order of the High Court cannot be sustained in law for two reasons. Firstly, the respondent is a purchaser after the publication of notice under Sections 4 and 6 of the Act and in fact after the award of the Land Acquisition Collector. Therefore, for the reasons recorded in a separate judgment delivered today in the matter of Delhi Development Authority v. Godfrey Phillips (I) Ltd. (Civil Appeal No. 3073 of 2022), subsequent purchaser is not entitled to claim lapsing of the proceedings under the 2013 Act.9. Secondly, the finding that compensation was not offered to the land owners and therefore the deposit in the Court cannot be regarded as payment of compensation is again not tenable in view of the judgment in Manohar Lal wherein this Court held as under:202. Section 24(2) deals with the expression where compensation has not been paid. It would mean that it has not been tendered for payment under Section 31(1).205. The word paid in Section 31(1) to the landowner cannot include in its ambit the expression deposited in court. Deposit cannot be said to be payment made to landowners. Deposit is on being prevented from payment. However, in case there is a tender of the amount that is to mean amount is made available to the landowner that would be a discharge of the obligation to make the payment and in that event such a person cannot be penalised for the default in making the payment. In default to deposit in court, the liability is to make the payment of interest under Section 34 of the 1894 Act.207. In our considered opinion, there is a breach of obligation to deposit even if it is taken that amount to be deposited in the Reference Court in exigencies being prevented from payment as provided in Section 31(2). The default will not have the effect of reopening the concluded proceedings. The legal position and consequence which prevailed from 1893 till 2013 on failure to deposit was only the liability for interest and all those transactions were never sought to be invalidated by the provisions contained in Section 24. It is only in the case where in a pending proceeding for a period of five years or more, the steps have not been taken for taking possession and for payment of compensation, then there is a lapse under Section 24(2). In case amount has not been deposited with respect to majority of landholdings, higher compensation has to follow. Both lapse and higher compensation are qualified with the condition of period of 5 years or more.208. It was submitted that mere tender of amount is not payment. The amount has to be actually paid. In our opinion, when amount has been tendered, the obligation has been fulfilled by the Collector. Landowners cannot be forced to receive it. In case a person has not accepted the amount wants to take the advantage of non-payment, though the amount has remained (sic unpaid) due to his own act. It is not open to him to contend that the amount has not been paid to him, as such, there should be lapse of the proceedings. Even in a case when offer for payment has been made but not deposited, liability to pay amount along with interest subsist and if not deposited for majority of holding, for that adequate provisions have been given in the proviso also to Section 24(2). The scheme of the 2013 Act in Sections 77 and 80 is also the same as that provided in Sections 31 and 34 of the 1894 Act.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.
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The Commissioner Of Income-Tax Bombay Vs. Manilal Dhanji, Bombay | Day the net interest and income thereof the Settlors son MANILAL for the maintenance of himself, his wife and for the maintenance education and benefit of all his children till his death."The question before us is whether under this clause the income received by the assessee is impressed with a trust in favour of himself, his wife and children to whom he is accountable as a trustee for the amount received. In other words, the question is whether the trust deed of December J. 1941 created two trusts, the one requiring the trustees to pay the income from the trust funds to the assessee and the second requiring the assessee to spend the income for the maintenance of himself and his wife and for the maintenance, education and benefit of his children. In cases where property is given to a parent or other person standing or regarded as in loco parentis, parent with a direction touching the maintenance of the children, the question often arises whether the settler intended to impose a trust by the direction or whether the direction was only motive of the gift. The line between the two classes of cases has not been drawn always very firmly. It is, however, clear that in construing provisions of this kind the Court will not enforce or treat as obligatory a mere wish or desire or hope on the part of the settlor that the donee of the fund should or would or ought to or is expected to apply it for the benefit of other persons; on the other hand, the Court does regard as binding and obligatory and does enforce a direction or trust in favour of third parties if such a binding obligation can be clearly ascertained from the document. Instances of cases where no trusts is created and of cases where a trust is created are detailed at pages 85 and 86 of Levin on Trusts (15th Edition).14. We are unable to hold that in the case before us cl. 7 of the trust deed merely expressed a wish or desire or hope on the part of the settlor. We are in agreement with the High Court that the direction contained in cl. 7 created a trust in favour of the assessee, his wife and children. The expression "for the maintenance of himself and his wife and for the maintenance, education and benefit of all his children" is not indicative of a mere desire or hope. It imposes a binding and obligatory trust. In re, Booth; Booth v. Booth, 1894-2 Ch. 282, a testator gave the residue of his estate to his executors, on trust, to pay to his wife or permit her to receive the annual income thereof during her life, "for her use and benefit and for the maintenance and education of my children." It was held that the wife took the income subject to a trust for the maintenance and education of the children. A similar view was expressed in Raikes v. Ward, 1842-66 E. R. 1106: 1 Hare 445 and Woods v. Woods, (1836) 40 E. R. 429: 1 My and Cr 401.15. On behalf of the appellant our attention was drawn to S. 8 of the Indian Trusts Act, 1882 (II of 1882) which states that this subject matter of trust must be property transferable to the beneficiary and it must not be merely beneficial interest under a subsisting trust. It is contended that the assessee held a beneficial interest in the income from the trust funds under the trust deed of December 1, 1941 and in respect of that beneficial interest another trust could not be created in favour of himself, his wife and children. We think that this argument proceeds on a misconception. The assessee did not create a second trust in respect of the beneficial interest which he held under the trust deed of December 1, 1941. The assessees father created two trusts by that trust deed, one requiring the trustees to pay the trust income to the assessee and the other requiring the assessee who was himself a trustee, to spend the income for the maintenance, education and benefit of his children. It is not disputed that by a single document more than one trust may be created. It is not, therefore, true to say that the subject matter of the trust in the present case was merely a beneficial interest under a subsisting trust.16. Under S. 41 of the Income-tax Act it was open to the Department either to tax the trustees of the trust deed or to tax those on whose behalf the trustees had received the amount. The true position of the assessee in this case was that he was a trustee and not the sole beneficiary under the trust deed. He held the income on trust for himself, his wife and his children. The shares of the beneficiaries were indeterminate and therefore under the first proviso to S. 41(1) of the income-tax Act, it was open to the Department to levy and recover the tax at the maximum rate from the assessee; but that did not entitle the Department to include the sum of Rs. 14,170 in the total income of the assessee as though he was the sole beneficiary under the trust deed. Mr. Rajagopal Sastri made it clear that the intention of the Department was to include the sum in the total income of the assessee in order to levy and charge super-tax on him. This, we do not think, the Department was entitled to do. In respect of the sum or Rs. 14,170 the assessee was a trustee, within the meaning of S. 41 of the Income-tax Act, appointed under trust declared by a duly executed instrument in writing and as such trustee he had the right to contend that his assessment in respect of the money received by him not as a beneficiary but as a trustee could only be made under the first proviso to S. 41(1). | 1[ds]7. The argument on behalf of the appellant is that the conditions laid down in cl. (b) of sub-s. (3) of S. 16 are fulfilled in the present case and therefore, the Department was entitled to include in the total income of the assessee so much of the income in the hands of the trustees as arose from the assets transferred by the assessee for the benefit of his minor child. It is pointed out that the conditions laid down in cl. (b) are-(1) that there must be income in the hands of any person or association of persons (trustees in the present case); (2) the income must arise from assets transferred otherwise than for adequate consideration to trustees; and (3) the transfer must be for the benefit of the minor child. It is argued that when the conditions are fulfilled and the only exceptional case namely, where the transfer is for adequate consideration is out of the way, cl. (6) must apply and the Department is entitled to include the income in the hands of the trustees in computing the total income of the individual assessee who made the transfer.8. As first sight the argument appears to be attractive and supported by the words used in the clause. On a closer scrutiny, however, it seems to us that cl. (b) must be read in the context of the scheme of S. 16 and the two clauses (a) and (b) of sub-s. (3) thereof must be read together. So read, the only reasonable interpretation appears to be the one which the High Court accepted, namely, that the scheme of the section requires that an assessee can only be taxed on the income from a trust fund for the benefit of his minor child, provided that in the year of account the minor child derives some benefit under the trust deed - either he receives the income, or the income accrues to him, or he has a beneficial interest in the income in the relevant year of account. But if no income accrues, or no beneficial is derived and there is no income at all (so far as the minor child is concerned), then it is not consistent with the scheme of S. 16 that the income or benefit which is non-existent so far as the minor child is concerned will be included in the income of his father. Take, for example, a case where the assets were transferred otherwise than for adequate consideration for the benefit of a minor child, but the child has attained majority before the relevant year of account. After the child attains majority the sub-section would cease to apply and the income from assets transferred for the benefit of the child would no longer be taxable in the parents hands. The reason must be that in the relevant year of account there is no benefit the minor child by the transfer, even though the transfer was originally made for the benefit of the child. The same principle may be illustrated by another example which has been dealt with by the High Court. Take a case where there are intermediate beneficiaries before the minor gets the benefit under the trust deed. In such a case the learned Advocate for the Department conceded in the High Court that cl. (b) of sub-sec. (3) of S. 16 would not be attracted till the minor derived benefit under the trust deed. Ms. Rajagopal Sastri did not make any such concession before us; but it seems to us that the principle underlying the illustration is incontestable. If the minor derives no benefit in the relevant year of account, it can hardly be said that for that Year the transfer was for the benefit of the minor child. Section 4, the charging section, of the Income-tax Act makes it clear that what is taxed is the total income of the relevant account year, and total income 7 according to S. 2(15), is the income, profits and gains referred to in sub-s. (1) of S. 4 and computed in the manner laid down in the Act. In other words, the tax is levied on a yearly basis. It is true that in the present case there was income in the hands of the trustees and the trustees were liable to pay tax thereon. That, however, is not the question before us. The question before us is whether such income in the hands of the trustees could be included in the total income of the assessee under cl. (b) of sub-s. (3) of S. 16. In our opinion, when cl. (b) of sub-s.(3) of S. 16 talks of benefit of the minor child it refers to benefit which arises or accrues to the minor in the year of account. If there be no such benefit, the income cannot be included in the total income of the individual who made the transfer. There is a third type of Gases which also illustrate the same principle. If only a portion of the Income of the trust is reserved for the minor child, cl. (b) would apply and that portion of the income which is set apart for the benefit of the child would be taxable in the hands self the settlor. All these illustrations only establish the principle that the minor child must derive some benefit in the relevant year of account before cl. (b) would9. Furthermore, we are also of the view that cls. (a) and (b) of the sub-section must be read together. Clause (a) begins with the expression "so much of the income of a wife or minor child of such individual as arises directly or indirectly, and this is followed by the four circumstances numbered (i), (ii), (iii) and (iv). There is no doubt that so far as cl.(a) is concerned, there must be income of the wife or minor child. Mr. Rajagopal Sastri has not disputed this. The obvious intention of the Legislature in enacting cl (b) was to see that the provisions of cl (a) were not defeated by the assessee creating a trust and in order to deal with that mischief it enacted cl. (b). Instead of the expression "so much of the income of a wife or minor child" the expression-used in cl. (b)is "so much of the income of any person or association of persons etc." Obviously, when a trust is created the income is income in the hands of the trustees. But the underlying principle in the two clauses (a) and (b) appears to be the same, namely, there must be income of the wife or minor child under cl. (a) and there must be some benefit derived by the wife or minor child in the year of account under cl. (b). This is consistent with the scheme of S. 16 and particularly sub-s. (3) thereof ; which is intended to fail anattempt to avoid or reduce the incidence of tax by transferring his assets to his wife or minor child etc. When, however the minor child derives no benefit under the trust deed in the year of account, it is not consistent with the scheme of S. 16 to say that even though there is no accrueal of any income or benefit in the year of account in favour of the minor child, yet the income must be included in the total income of the individual concerned.We have, therefore, come to the conclusion that on a true construction of cl. (b) of sub-s. (3) of S. 16, the view expressed by the High Court was correct and the sum of Rs.10 did not form part of the total income of the assessee. The High Court correctly answered the first question referred tocases where property is given to a parent or other person standing or regarded as in loco parentis, parent with a direction touching the maintenance of the children, the question often arises whether the settler intended to impose a trust by the direction or whether the direction was only motive of the gift. The line between the two classes of cases has not been drawn always very firmly. It is, however, clear that in construing provisions of this kind the Court will not enforce or treat as obligatory a mere wish or desire or hope on the part of the settlor that the donee of the fund should or would or ought to or is expected to apply it for the benefit of other persons; on the other hand, the Court does regard as binding and obligatory and does enforce a direction or trust in favour of third parties if such a binding obligation can be clearly ascertained from the document.On behalf of the appellant our attention was drawn to S. 8 of the Indian Trusts Act, 1882 (II of 1882) which states that this subject matter of trust must be property transferable to the beneficiary and it must not be merely beneficial interest under a subsisting trust. It is contended that the assessee held a beneficial interest in the income from the trust funds under the trust deed of December 1, 1941 and in respect of that beneficial interest another trust could not be created in favour of himself, his wife and children. We think that this argument proceeds on a misconception. The assessee did not create a second trust in respect of the beneficial interest which he held under the trust deed of December 1, 1941. The assessees father created two trusts by that trust deed, one requiring the trustees to pay the trust income to the assessee and the other requiring the assessee who was himself a trustee, to spend the income for the maintenance, education and benefit of his children. It is not disputed that by a single document more than one trust may be created. It is not, therefore, true to say that the subject matter of the trust in the present case was merely a beneficial interest under a subsisting trust.16. Under S. 41 of the Income-tax Act it was open to the Department either to tax the trustees of the trust deed or to tax those on whose behalf the trustees had received the amount. The true position of the assessee in this case was that he was a trustee and not the sole beneficiary under the trust deed. He held the income on trust for himself, his wife and his children. The shares of the beneficiaries were indeterminate and therefore under the first proviso to S. 41(1) of the income-tax Act, it was open to the Department to levy and recover the tax at the maximum rate from the assessee; but that did not entitle the Department to include the sum of Rs. 14,170 in the total income of the assessee as though he was the sole beneficiary under the trust deed. Mr. Rajagopal Sastri made it clear that the intention of the Department was to include the sum in the total income of the assessee in order to levy and charge super-tax on him. This, we do not think, the Department was entitled to do. In respect of the sum or Rs. 14,170 the assessee was a trustee, within the meaning of S. 41 of the Income-tax Act, appointed under trust declared by a duly executed instrument in writing and as such trustee he had the right to contend that his assessment in respect of the money received by him not as a beneficiary but as a trustee could only be made under the first proviso to S. 41(1). | 1 | 5,144 | 2,170 | ### Instruction:
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Day the net interest and income thereof the Settlors son MANILAL for the maintenance of himself, his wife and for the maintenance education and benefit of all his children till his death."The question before us is whether under this clause the income received by the assessee is impressed with a trust in favour of himself, his wife and children to whom he is accountable as a trustee for the amount received. In other words, the question is whether the trust deed of December J. 1941 created two trusts, the one requiring the trustees to pay the income from the trust funds to the assessee and the second requiring the assessee to spend the income for the maintenance of himself and his wife and for the maintenance, education and benefit of his children. In cases where property is given to a parent or other person standing or regarded as in loco parentis, parent with a direction touching the maintenance of the children, the question often arises whether the settler intended to impose a trust by the direction or whether the direction was only motive of the gift. The line between the two classes of cases has not been drawn always very firmly. It is, however, clear that in construing provisions of this kind the Court will not enforce or treat as obligatory a mere wish or desire or hope on the part of the settlor that the donee of the fund should or would or ought to or is expected to apply it for the benefit of other persons; on the other hand, the Court does regard as binding and obligatory and does enforce a direction or trust in favour of third parties if such a binding obligation can be clearly ascertained from the document. Instances of cases where no trusts is created and of cases where a trust is created are detailed at pages 85 and 86 of Levin on Trusts (15th Edition).14. We are unable to hold that in the case before us cl. 7 of the trust deed merely expressed a wish or desire or hope on the part of the settlor. We are in agreement with the High Court that the direction contained in cl. 7 created a trust in favour of the assessee, his wife and children. The expression "for the maintenance of himself and his wife and for the maintenance, education and benefit of all his children" is not indicative of a mere desire or hope. It imposes a binding and obligatory trust. In re, Booth; Booth v. Booth, 1894-2 Ch. 282, a testator gave the residue of his estate to his executors, on trust, to pay to his wife or permit her to receive the annual income thereof during her life, "for her use and benefit and for the maintenance and education of my children." It was held that the wife took the income subject to a trust for the maintenance and education of the children. A similar view was expressed in Raikes v. Ward, 1842-66 E. R. 1106: 1 Hare 445 and Woods v. Woods, (1836) 40 E. R. 429: 1 My and Cr 401.15. On behalf of the appellant our attention was drawn to S. 8 of the Indian Trusts Act, 1882 (II of 1882) which states that this subject matter of trust must be property transferable to the beneficiary and it must not be merely beneficial interest under a subsisting trust. It is contended that the assessee held a beneficial interest in the income from the trust funds under the trust deed of December 1, 1941 and in respect of that beneficial interest another trust could not be created in favour of himself, his wife and children. We think that this argument proceeds on a misconception. The assessee did not create a second trust in respect of the beneficial interest which he held under the trust deed of December 1, 1941. The assessees father created two trusts by that trust deed, one requiring the trustees to pay the trust income to the assessee and the other requiring the assessee who was himself a trustee, to spend the income for the maintenance, education and benefit of his children. It is not disputed that by a single document more than one trust may be created. It is not, therefore, true to say that the subject matter of the trust in the present case was merely a beneficial interest under a subsisting trust.16. Under S. 41 of the Income-tax Act it was open to the Department either to tax the trustees of the trust deed or to tax those on whose behalf the trustees had received the amount. The true position of the assessee in this case was that he was a trustee and not the sole beneficiary under the trust deed. He held the income on trust for himself, his wife and his children. The shares of the beneficiaries were indeterminate and therefore under the first proviso to S. 41(1) of the income-tax Act, it was open to the Department to levy and recover the tax at the maximum rate from the assessee; but that did not entitle the Department to include the sum of Rs. 14,170 in the total income of the assessee as though he was the sole beneficiary under the trust deed. Mr. Rajagopal Sastri made it clear that the intention of the Department was to include the sum in the total income of the assessee in order to levy and charge super-tax on him. This, we do not think, the Department was entitled to do. In respect of the sum or Rs. 14,170 the assessee was a trustee, within the meaning of S. 41 of the Income-tax Act, appointed under trust declared by a duly executed instrument in writing and as such trustee he had the right to contend that his assessment in respect of the money received by him not as a beneficiary but as a trustee could only be made under the first proviso to S. 41(1).
### Response:
1
### Explanation:
expression "so much of the income of a wife or minor child of such individual as arises directly or indirectly, and this is followed by the four circumstances numbered (i), (ii), (iii) and (iv). There is no doubt that so far as cl.(a) is concerned, there must be income of the wife or minor child. Mr. Rajagopal Sastri has not disputed this. The obvious intention of the Legislature in enacting cl (b) was to see that the provisions of cl (a) were not defeated by the assessee creating a trust and in order to deal with that mischief it enacted cl. (b). Instead of the expression "so much of the income of a wife or minor child" the expression-used in cl. (b)is "so much of the income of any person or association of persons etc." Obviously, when a trust is created the income is income in the hands of the trustees. But the underlying principle in the two clauses (a) and (b) appears to be the same, namely, there must be income of the wife or minor child under cl. (a) and there must be some benefit derived by the wife or minor child in the year of account under cl. (b). This is consistent with the scheme of S. 16 and particularly sub-s. (3) thereof ; which is intended to fail anattempt to avoid or reduce the incidence of tax by transferring his assets to his wife or minor child etc. When, however the minor child derives no benefit under the trust deed in the year of account, it is not consistent with the scheme of S. 16 to say that even though there is no accrueal of any income or benefit in the year of account in favour of the minor child, yet the income must be included in the total income of the individual concerned.We have, therefore, come to the conclusion that on a true construction of cl. (b) of sub-s. (3) of S. 16, the view expressed by the High Court was correct and the sum of Rs.10 did not form part of the total income of the assessee. The High Court correctly answered the first question referred tocases where property is given to a parent or other person standing or regarded as in loco parentis, parent with a direction touching the maintenance of the children, the question often arises whether the settler intended to impose a trust by the direction or whether the direction was only motive of the gift. The line between the two classes of cases has not been drawn always very firmly. It is, however, clear that in construing provisions of this kind the Court will not enforce or treat as obligatory a mere wish or desire or hope on the part of the settlor that the donee of the fund should or would or ought to or is expected to apply it for the benefit of other persons; on the other hand, the Court does regard as binding and obligatory and does enforce a direction or trust in favour of third parties if such a binding obligation can be clearly ascertained from the document.On behalf of the appellant our attention was drawn to S. 8 of the Indian Trusts Act, 1882 (II of 1882) which states that this subject matter of trust must be property transferable to the beneficiary and it must not be merely beneficial interest under a subsisting trust. It is contended that the assessee held a beneficial interest in the income from the trust funds under the trust deed of December 1, 1941 and in respect of that beneficial interest another trust could not be created in favour of himself, his wife and children. We think that this argument proceeds on a misconception. The assessee did not create a second trust in respect of the beneficial interest which he held under the trust deed of December 1, 1941. The assessees father created two trusts by that trust deed, one requiring the trustees to pay the trust income to the assessee and the other requiring the assessee who was himself a trustee, to spend the income for the maintenance, education and benefit of his children. It is not disputed that by a single document more than one trust may be created. It is not, therefore, true to say that the subject matter of the trust in the present case was merely a beneficial interest under a subsisting trust.16. Under S. 41 of the Income-tax Act it was open to the Department either to tax the trustees of the trust deed or to tax those on whose behalf the trustees had received the amount. The true position of the assessee in this case was that he was a trustee and not the sole beneficiary under the trust deed. He held the income on trust for himself, his wife and his children. The shares of the beneficiaries were indeterminate and therefore under the first proviso to S. 41(1) of the income-tax Act, it was open to the Department to levy and recover the tax at the maximum rate from the assessee; but that did not entitle the Department to include the sum of Rs. 14,170 in the total income of the assessee as though he was the sole beneficiary under the trust deed. Mr. Rajagopal Sastri made it clear that the intention of the Department was to include the sum in the total income of the assessee in order to levy and charge super-tax on him. This, we do not think, the Department was entitled to do. In respect of the sum or Rs. 14,170 the assessee was a trustee, within the meaning of S. 41 of the Income-tax Act, appointed under trust declared by a duly executed instrument in writing and as such trustee he had the right to contend that his assessment in respect of the money received by him not as a beneficiary but as a trustee could only be made under the first proviso to S. 41(1).
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Securities and Exchange Board of India Vs. Udayant Malhoutra | 1. These statutory appeals have been instituted by the Securities and Exchange Board of India(SEBI) under Section 15Z of the Securities and Exchange Board of India Act 1992(SEBI Act) . The appeals arise out of the orders passed by the Securities Appellate Tribunal(Tribunal) on 27 June 2020 and 23 July 2020. The Tribunal set aside an interim order dated 15 June 2020 passed by the Whole Time Member of SEBI under Section 19 read with Sections 11(1), 11(4)(d), 11(4A), 11(5) and 11B of the SEBI Act read with Regulation 10 of the SEBI (Prohibition of Insider Trading) Regulations 2015. 2. By the interim order, the Whole Time Member quantified an amount of Rs 3,83,16,230.73, being the notional loss sought to be avoided on account of trades carried out by the respondent in the scrips of Dynamatic Technologies Ltd over unpublished price sensitive information. The respondent was directed by the Whole Time Member to credit the amount into an Escrow Account. 3. For the purpose of the present appeals, the facts lie in a narrow compass. The respondent is the Chief Executive Officer and Managing Director of the Company in question. It was alleged that he had sold 51,000 shares of the Company on 24 October 2016 having inside knowledge of price sensitive information, namely, the unaudited financial results of the quarter ending on 30 September 2016. It was alleged that the financial results were approved by the Board of Directors on 11 November 2016, upon which the price of the scrips of the Company sustained a drastic reduction. The allegation against the respondent was that being in possession of price sensitive information and being a connected person, he had sold the shares and had, thus, made a notional gain or averted a notional loss. The sales made by the respondent were the subject matter of an investigation in 2017. It appears from the record that the investigating team called for information from the respondent on 28 November 2019. The Whole Time Member passed an ex parte order on 15 June 2020. 4. Before the Tribunal, it was urged by the respondent that there was no urgency in passing an ex-parte order against the respondent, regarding a trade done about three years ago and that the ex-parte action of the appellant in requiring a deposit during the pandemic is arbitrary. Opposing this, the appellant alleged that the reason for passing an ex-parte order was that there was a possibility of a diversion of the notional gain made by the respondent. In arriving at its conclusion in the impugned order, the Tribunal placed reliance on its earlier decision in North End Foods Marketing Pvt Ltd v Securities and Exchange Board of India(Appeal 80 of 2019 decided on 12 March 2019) . In paragraph 11 of the decision, the Tribunal held as follows: 11. As held in North End Foods Marketing Pvt. Ltd. (supra) there is no real urgency in the matter to pass an ex-parte interim order especially during the pandemic period. There is no doubt that SEBI has the power to pass an interim order and that in extreme urgent cases SEBI can pass an ex-parte interim order but such powers can only be exercised sparingly and only in extreme urgent matters. In the instant case, we do not find any case of extreme urgency which warranted the respondent to pass an ex-parte interim order only on arriving at the primafacie case that the appellant was an insider as defined in the SEBI (Prohibition of Insider Trading) Regulations, 2015 (PIT Regulations for short) without considering the balance of convenience or irreparable injury. 5. On the facts before it, the Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cases, observed that this should be exercised only in extreme urgent matters. 6. On the facts, as they have emerged before this Court, we do not find any reason to take a view at variance with the conclusion of the Tribunal on the facts of the case. By way of abundant caution, we clarify that we are affirming the view on the facts which have emerged from the record before the Tribunal. 7. Mr Tushar Mehta, learned Solicitor General, however, submitted that the reason why SEBI has been constrained to file the appeals is because of certain observations contained in the impugned order, on question of law bearing on the statutory powers of SEBI. In particular, the attention of the Court was drawn to the following paragraph: 9. ...We are of the opinion that no amount towards disgorgement can be directed to be deposited in advance unless it is adjudicated and quantified unless there is some evidence to show and justify the action taken. An order of the like nature can only be passed during the pendency of the proceedings and such orders cannot be passed at the time of initiation of the proceedings. 8. Section 11(4) of the SEBI Act confers power on SEBI in the following terms: 11. Functions of Board: *** *** *** (4) Without prejudice to the provisions contained in sub-sections (1), (2), (2A) and (3) and section 11B, the Board may, by an order, for reasons to be recorded in writing, in the interests of investors or securities market, take any of the following measures, either pending investigation or inquiry or on completion of such investigation or inquiry, namely:— (a) *** (b) *** (c) *** (d) impound and retain the proceeds or securities in respect of any transaction which is under investigation; | 1[ds]5. On the facts before it, the Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cases, observed that this should be exercised only in extreme urgent matters.6. On the facts, as they have emerged before this Court, we do not find any reason to take a view at variance with the conclusion of the Tribunal on the facts of the case. By way of abundant caution, we clarify that we are affirming the view on the facts which have emerged from the record before the Tribunal. | 1 | 1,134 | 170 | ### 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. These statutory appeals have been instituted by the Securities and Exchange Board of India(SEBI) under Section 15Z of the Securities and Exchange Board of India Act 1992(SEBI Act) . The appeals arise out of the orders passed by the Securities Appellate Tribunal(Tribunal) on 27 June 2020 and 23 July 2020. The Tribunal set aside an interim order dated 15 June 2020 passed by the Whole Time Member of SEBI under Section 19 read with Sections 11(1), 11(4)(d), 11(4A), 11(5) and 11B of the SEBI Act read with Regulation 10 of the SEBI (Prohibition of Insider Trading) Regulations 2015. 2. By the interim order, the Whole Time Member quantified an amount of Rs 3,83,16,230.73, being the notional loss sought to be avoided on account of trades carried out by the respondent in the scrips of Dynamatic Technologies Ltd over unpublished price sensitive information. The respondent was directed by the Whole Time Member to credit the amount into an Escrow Account. 3. For the purpose of the present appeals, the facts lie in a narrow compass. The respondent is the Chief Executive Officer and Managing Director of the Company in question. It was alleged that he had sold 51,000 shares of the Company on 24 October 2016 having inside knowledge of price sensitive information, namely, the unaudited financial results of the quarter ending on 30 September 2016. It was alleged that the financial results were approved by the Board of Directors on 11 November 2016, upon which the price of the scrips of the Company sustained a drastic reduction. The allegation against the respondent was that being in possession of price sensitive information and being a connected person, he had sold the shares and had, thus, made a notional gain or averted a notional loss. The sales made by the respondent were the subject matter of an investigation in 2017. It appears from the record that the investigating team called for information from the respondent on 28 November 2019. The Whole Time Member passed an ex parte order on 15 June 2020. 4. Before the Tribunal, it was urged by the respondent that there was no urgency in passing an ex-parte order against the respondent, regarding a trade done about three years ago and that the ex-parte action of the appellant in requiring a deposit during the pandemic is arbitrary. Opposing this, the appellant alleged that the reason for passing an ex-parte order was that there was a possibility of a diversion of the notional gain made by the respondent. In arriving at its conclusion in the impugned order, the Tribunal placed reliance on its earlier decision in North End Foods Marketing Pvt Ltd v Securities and Exchange Board of India(Appeal 80 of 2019 decided on 12 March 2019) . In paragraph 11 of the decision, the Tribunal held as follows: 11. As held in North End Foods Marketing Pvt. Ltd. (supra) there is no real urgency in the matter to pass an ex-parte interim order especially during the pandemic period. There is no doubt that SEBI has the power to pass an interim order and that in extreme urgent cases SEBI can pass an ex-parte interim order but such powers can only be exercised sparingly and only in extreme urgent matters. In the instant case, we do not find any case of extreme urgency which warranted the respondent to pass an ex-parte interim order only on arriving at the primafacie case that the appellant was an insider as defined in the SEBI (Prohibition of Insider Trading) Regulations, 2015 (PIT Regulations for short) without considering the balance of convenience or irreparable injury. 5. On the facts before it, the Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cases, observed that this should be exercised only in extreme urgent matters. 6. On the facts, as they have emerged before this Court, we do not find any reason to take a view at variance with the conclusion of the Tribunal on the facts of the case. By way of abundant caution, we clarify that we are affirming the view on the facts which have emerged from the record before the Tribunal. 7. Mr Tushar Mehta, learned Solicitor General, however, submitted that the reason why SEBI has been constrained to file the appeals is because of certain observations contained in the impugned order, on question of law bearing on the statutory powers of SEBI. In particular, the attention of the Court was drawn to the following paragraph: 9. ...We are of the opinion that no amount towards disgorgement can be directed to be deposited in advance unless it is adjudicated and quantified unless there is some evidence to show and justify the action taken. An order of the like nature can only be passed during the pendency of the proceedings and such orders cannot be passed at the time of initiation of the proceedings. 8. Section 11(4) of the SEBI Act confers power on SEBI in the following terms: 11. Functions of Board: *** *** *** (4) Without prejudice to the provisions contained in sub-sections (1), (2), (2A) and (3) and section 11B, the Board may, by an order, for reasons to be recorded in writing, in the interests of investors or securities market, take any of the following measures, either pending investigation or inquiry or on completion of such investigation or inquiry, namely:— (a) *** (b) *** (c) *** (d) impound and retain the proceeds or securities in respect of any transaction which is under investigation;
### Response:
1
### Explanation:
5. On the facts before it, the Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cases, observed that this should be exercised only in extreme urgent matters.6. On the facts, as they have emerged before this Court, we do not find any reason to take a view at variance with the conclusion of the Tribunal on the facts of the case. By way of abundant caution, we clarify that we are affirming the view on the facts which have emerged from the record before the Tribunal.
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C.B.I., New Delhi Vs. Abhishek Verma | MEA and `A. Verma could well refer to an Anupam Verma. The veracity of such rival claims can only be decided during the trial.16. It was argued by the appellant that the pen drives recovered from the co-accused Vijendra Rana and the documents seized from the premises of Kulbhushan Parashar contain sensitive information. However, there is no denial of the fact that there was neither any recovery from the respondent nor at the instance of the respondent. Further, no satisfactory answer has been provided by the appellants to counter the submission of the respondent that the pen drives were not temper proof when handed over to the CBI and before handing it to the CBI, several copies of their contents was made by the authorities. 17. The appellant has drawn our attention to a decision of this Court in Govt. of NCT, Delhi v. Jaspal Singh 2003 (10) SCC 586 @ 593, wherein this Court observed: "8. So far as the scope of Section 3(1) (c) of the Act is concerned, it was urged for the respondent that unless the articles enumerated are shown to be "secret" document or material and that besides their collection they were published or communicated to any other person, the charge under the said provision could not be said to have been made out. Apparently, the inspiration for such a submission was the judgment of a learned Single Judge of the Bombay High Court reported in State of Maharashtra v. Dr B.K. Subbarao. We are unable to agree with this extreme submission on behalf of the respondent. This Court in Sama Alana Abdulla v. State of Gujarat had held: (a) that the word "secret" in clause (c) of sub-section (1) of Section 3 qualified official code or password and not any sketch, plan, model, article or note or other document or information, and (b) when the accused was found in conscious possession of the material (map in that case) and no plausible explanation has been given for its possession, it has to be presumed as required by Section 3(2) of the Act that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the State. Further, each one of the several acts enumerated in clause (c) of sub-section (1) of Section 3 of the Act, by themselves will constitute, individually, an offending act to attract the said provision and it is not necessary that only one or more of them and particularly, publishing or communication of the same need be conjointly proved for convicting one charged with the offence of obtaining or collecting records or secret official code or password or any sketch, plan, model, article or note or other document or information. Any such interpretation would not only amount to doing violence to the language, scheme underlying and the very object of the said provision besides rendering otiose or a dead letter the specific provision engrafted in sub-section (2) of Section 3 of the Act. In view of this, the decision of the Single Judge of the High Court in B.K. Subbarao1 cannot be said to lay down the correct position of law on the scope of Section 3(1) (c) of the Act." (emphasis added) 18. The above-mentioned case succinctly explains the ambit of Section 3(2) of the OSA by stating that once the accused is found in conscious possession of the material then it would be presumed that such possession was for a purpose prejudicial to the interests of the State. Clearly, the said presumption under Section 3(2) of the OSA is a rebuttable presumption and the respondent will have an opportunity to rebut the same during the trial. Further, the case relied hereinabove by the appellant is clearly distinguishable as in the above-mentioned case the stage was that of post-conviction and has little bearing on the present one since in the present case, the evidence is yet to be adduced in the trial.19. Further, there is no denial of the fact that the respondent is an approver in another case involving one Ashok Agarwal, a former Deputy Director of Enforcement. The said order of making approver is under challenge before this Court. The respondent has been provided security by the Delhi Police due to the death threats faced by him in that case.Restrictions have already been imposed on the respondent on his traveling abroad in earlier matters (viz. under the FERA and the Passport Act). So, we find that the prosecution would have no difficulty in securing the presence of the respondent during the trial. Despite the fact that he is on bail for last about ten months there is no allegation about any misuse or abuse of the liberty or violation of any of the conditions.20. In view of the aforesaid discussion, we find no infirmity in the judgment and order passed by the High Court. We make it clear that whatever views and conclusion we have expressed in this order of ours are purely prima facie and for the limited purpose of finding out whether the impugned order of the High Court is sustainable or not. The trial court shall not in any manner be influenced by these observations of ours or that of the High Court made in the course of the order granting bail as all such observations are tentative in nature. The trial court would necessarily examine the evidence after it is led on their own merit and without being in any manner influenced by this order and also the order passed by the High Court granting bail. We, however, make it clear that if at any point of time there is any adverse allegation against the respondent regarding any misuse or abuse of the liberty granted to him and as and when an application is filed with such allegation seeking for cancellation of bail, the trial court shall deal with such contention and prayer in accordance with law and pass such order as deem fit and proper. | 0[ds]14. So, before granting bail in cases involvingoffences particularly where the trial has not yet commenced, the first aspect which must be examined is with regard to the nature and seriousness of the offence.one of the charges against the respondent is Section 3 of the OSA. A perusal of Section 3 shows that it contemplates two kinds of offences, one which attracts a greater punishment of 14 years and the other with a lesser punishment of 3 years. The appellant has relied on several decisions of this Court to establish that when it is unclear which punishment to be applied under Section 3 of OSA, the Court must proceed on the assumption that it is the more severe i.e. 14 years which is to be applied. However, the cases cited by the appellant are distinguishable. In none of the cases cited by the appellant, the accused had already undergonedetention of twenty two months without even a prima facie determination of the seriousness of the offence.15. Further, with regard to nature and character of the evidence, the prosecution case is essentially based on circumstantial evidence. It would neither be appropriate nor desirable to discuss the entire evidence as the same is the subject matter of the trial. However, for the limited purpose of the disposal of the present appeal we deem it appropriate to consider the character of the evidence. It is the case of the appellant that a copy of document in PDF form found in the pen drive recovered from Vijender Rana which is a letter dated 5th January, 2005 from an official of Indian High Commission, London to the Ministry of External Affairs, New Delhi. The right hand top corner of the copy of the documents contains the word: `Kind Attention A. Verma. According to the respondent no such document is available in the records of the MEA and `A. Verma could well refer to an Anupam Verma. The veracity of such rival claims can only be decided during the trial.16. It was argued by the appellant that the pen drives recovered from theVijendra Rana and the documents seized from the premises of Kulbhushan Parashar contain sensitive information. However, there is no denial of the fact that there was neither any recovery from the respondent nor at the instance of the respondent. Further, no satisfactory answer has been provided by the appellants to counter the submission of the respondent that the pen drives were not temper proof when handed over to the CBI and before handing it to the CBI, several copies of their contents was made by the authorities.ed case succinctly explains the ambit of Section 3(2) of the OSA by stating that once the accused is found in conscious possession of the material then it would be presumed that such possession was for a purpose prejudicial to the interests of the State. Clearly, the said presumption under Section 3(2) of the OSA is a rebuttable presumption and the respondent will have an opportunity to rebut the same during the trial. Further, the case relied hereinabove by the appellant is clearly distinguishable as in thecase the stage was that ofand has little bearing on the present one since in the present case, the evidence is yet to be adduced in the trial.19. Further, there is no denial of the fact that the respondent is an approver in another case involving one Ashok Agarwal, a former Deputy Director of Enforcement. The said order of making approver is under challenge before this Court. The respondent has been provided security by the Delhi Police due to the death threats faced by him in that case.Restrictions have already been imposed on the respondent on his traveling abroad in earlier matters (viz. under the FERA and the Passport Act). So, we find that the prosecution would have no difficulty in securing the presence of the respondent during the trial. Despite the fact that he is on bail for last about ten months there is no allegation about any misuse or abuse of the liberty or violation of any of the conditions.20. In view of the aforesaid discussion, we find no infirmity in the judgment and order passed by the High Court. We make it clear that whatever views and conclusion we have expressed in this order of ours are purely prima facie and for the limited purpose of finding out whether the impugned order of the High Court is sustainable or not. The trial court shall not in any manner be influenced by these observations of ours or that of the High Court made in the course of the order granting bail as all such observations are tentative in nature. The trial court would necessarily examine the evidence after it is led on their own merit and without being in any manner influenced by this order and also the order passed by the High Court granting bail. We, however, make it clear that if at any point of time there is any adverse allegation against the respondent regarding any misuse or abuse of the liberty granted to him and as and when an application is filed with such allegation seeking for cancellation of bail, the trial court shall deal with such contention and prayer in accordance with law and pass such order as deem fit and proper. | 0 | 3,706 | 955 | ### 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:
MEA and `A. Verma could well refer to an Anupam Verma. The veracity of such rival claims can only be decided during the trial.16. It was argued by the appellant that the pen drives recovered from the co-accused Vijendra Rana and the documents seized from the premises of Kulbhushan Parashar contain sensitive information. However, there is no denial of the fact that there was neither any recovery from the respondent nor at the instance of the respondent. Further, no satisfactory answer has been provided by the appellants to counter the submission of the respondent that the pen drives were not temper proof when handed over to the CBI and before handing it to the CBI, several copies of their contents was made by the authorities. 17. The appellant has drawn our attention to a decision of this Court in Govt. of NCT, Delhi v. Jaspal Singh 2003 (10) SCC 586 @ 593, wherein this Court observed: "8. So far as the scope of Section 3(1) (c) of the Act is concerned, it was urged for the respondent that unless the articles enumerated are shown to be "secret" document or material and that besides their collection they were published or communicated to any other person, the charge under the said provision could not be said to have been made out. Apparently, the inspiration for such a submission was the judgment of a learned Single Judge of the Bombay High Court reported in State of Maharashtra v. Dr B.K. Subbarao. We are unable to agree with this extreme submission on behalf of the respondent. This Court in Sama Alana Abdulla v. State of Gujarat had held: (a) that the word "secret" in clause (c) of sub-section (1) of Section 3 qualified official code or password and not any sketch, plan, model, article or note or other document or information, and (b) when the accused was found in conscious possession of the material (map in that case) and no plausible explanation has been given for its possession, it has to be presumed as required by Section 3(2) of the Act that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the State. Further, each one of the several acts enumerated in clause (c) of sub-section (1) of Section 3 of the Act, by themselves will constitute, individually, an offending act to attract the said provision and it is not necessary that only one or more of them and particularly, publishing or communication of the same need be conjointly proved for convicting one charged with the offence of obtaining or collecting records or secret official code or password or any sketch, plan, model, article or note or other document or information. Any such interpretation would not only amount to doing violence to the language, scheme underlying and the very object of the said provision besides rendering otiose or a dead letter the specific provision engrafted in sub-section (2) of Section 3 of the Act. In view of this, the decision of the Single Judge of the High Court in B.K. Subbarao1 cannot be said to lay down the correct position of law on the scope of Section 3(1) (c) of the Act." (emphasis added) 18. The above-mentioned case succinctly explains the ambit of Section 3(2) of the OSA by stating that once the accused is found in conscious possession of the material then it would be presumed that such possession was for a purpose prejudicial to the interests of the State. Clearly, the said presumption under Section 3(2) of the OSA is a rebuttable presumption and the respondent will have an opportunity to rebut the same during the trial. Further, the case relied hereinabove by the appellant is clearly distinguishable as in the above-mentioned case the stage was that of post-conviction and has little bearing on the present one since in the present case, the evidence is yet to be adduced in the trial.19. Further, there is no denial of the fact that the respondent is an approver in another case involving one Ashok Agarwal, a former Deputy Director of Enforcement. The said order of making approver is under challenge before this Court. The respondent has been provided security by the Delhi Police due to the death threats faced by him in that case.Restrictions have already been imposed on the respondent on his traveling abroad in earlier matters (viz. under the FERA and the Passport Act). So, we find that the prosecution would have no difficulty in securing the presence of the respondent during the trial. Despite the fact that he is on bail for last about ten months there is no allegation about any misuse or abuse of the liberty or violation of any of the conditions.20. In view of the aforesaid discussion, we find no infirmity in the judgment and order passed by the High Court. We make it clear that whatever views and conclusion we have expressed in this order of ours are purely prima facie and for the limited purpose of finding out whether the impugned order of the High Court is sustainable or not. The trial court shall not in any manner be influenced by these observations of ours or that of the High Court made in the course of the order granting bail as all such observations are tentative in nature. The trial court would necessarily examine the evidence after it is led on their own merit and without being in any manner influenced by this order and also the order passed by the High Court granting bail. We, however, make it clear that if at any point of time there is any adverse allegation against the respondent regarding any misuse or abuse of the liberty granted to him and as and when an application is filed with such allegation seeking for cancellation of bail, the trial court shall deal with such contention and prayer in accordance with law and pass such order as deem fit and proper.
### Response:
0
### Explanation:
14. So, before granting bail in cases involvingoffences particularly where the trial has not yet commenced, the first aspect which must be examined is with regard to the nature and seriousness of the offence.one of the charges against the respondent is Section 3 of the OSA. A perusal of Section 3 shows that it contemplates two kinds of offences, one which attracts a greater punishment of 14 years and the other with a lesser punishment of 3 years. The appellant has relied on several decisions of this Court to establish that when it is unclear which punishment to be applied under Section 3 of OSA, the Court must proceed on the assumption that it is the more severe i.e. 14 years which is to be applied. However, the cases cited by the appellant are distinguishable. In none of the cases cited by the appellant, the accused had already undergonedetention of twenty two months without even a prima facie determination of the seriousness of the offence.15. Further, with regard to nature and character of the evidence, the prosecution case is essentially based on circumstantial evidence. It would neither be appropriate nor desirable to discuss the entire evidence as the same is the subject matter of the trial. However, for the limited purpose of the disposal of the present appeal we deem it appropriate to consider the character of the evidence. It is the case of the appellant that a copy of document in PDF form found in the pen drive recovered from Vijender Rana which is a letter dated 5th January, 2005 from an official of Indian High Commission, London to the Ministry of External Affairs, New Delhi. The right hand top corner of the copy of the documents contains the word: `Kind Attention A. Verma. According to the respondent no such document is available in the records of the MEA and `A. Verma could well refer to an Anupam Verma. The veracity of such rival claims can only be decided during the trial.16. It was argued by the appellant that the pen drives recovered from theVijendra Rana and the documents seized from the premises of Kulbhushan Parashar contain sensitive information. However, there is no denial of the fact that there was neither any recovery from the respondent nor at the instance of the respondent. Further, no satisfactory answer has been provided by the appellants to counter the submission of the respondent that the pen drives were not temper proof when handed over to the CBI and before handing it to the CBI, several copies of their contents was made by the authorities.ed case succinctly explains the ambit of Section 3(2) of the OSA by stating that once the accused is found in conscious possession of the material then it would be presumed that such possession was for a purpose prejudicial to the interests of the State. Clearly, the said presumption under Section 3(2) of the OSA is a rebuttable presumption and the respondent will have an opportunity to rebut the same during the trial. Further, the case relied hereinabove by the appellant is clearly distinguishable as in thecase the stage was that ofand has little bearing on the present one since in the present case, the evidence is yet to be adduced in the trial.19. Further, there is no denial of the fact that the respondent is an approver in another case involving one Ashok Agarwal, a former Deputy Director of Enforcement. The said order of making approver is under challenge before this Court. The respondent has been provided security by the Delhi Police due to the death threats faced by him in that case.Restrictions have already been imposed on the respondent on his traveling abroad in earlier matters (viz. under the FERA and the Passport Act). So, we find that the prosecution would have no difficulty in securing the presence of the respondent during the trial. Despite the fact that he is on bail for last about ten months there is no allegation about any misuse or abuse of the liberty or violation of any of the conditions.20. In view of the aforesaid discussion, we find no infirmity in the judgment and order passed by the High Court. We make it clear that whatever views and conclusion we have expressed in this order of ours are purely prima facie and for the limited purpose of finding out whether the impugned order of the High Court is sustainable or not. The trial court shall not in any manner be influenced by these observations of ours or that of the High Court made in the course of the order granting bail as all such observations are tentative in nature. The trial court would necessarily examine the evidence after it is led on their own merit and without being in any manner influenced by this order and also the order passed by the High Court granting bail. We, however, make it clear that if at any point of time there is any adverse allegation against the respondent regarding any misuse or abuse of the liberty granted to him and as and when an application is filed with such allegation seeking for cancellation of bail, the trial court shall deal with such contention and prayer in accordance with law and pass such order as deem fit and proper.
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State Of Gujarat Vs. Gajanand M.Dalwadi(D) By Lrs | the accident, he did not possess a valid driving licence. In the circumstances the owner of the vehicle Sugarmal Bherumal, could not have claimed insurance money for the damage caused to the vehicle. With a view to facilitating the insurance claim, the said Sagarmal Bherumal arranged for issuance of a duplicate licence in the name of driver-Narendra Kumar for the period covering the date of the accident. Indisputably, the duplicate licence was issued by the delinquent. Obviously, the duplicate licence was obtained by the owner Sagarmal Bherumal with an intention to defraud the insurance Company. The delinquent played an Important role in this fraudulent scheme by issuing duplicate licence. Indisputably, it was neither the function of the delinquent to issue such licence nor was it his defence that the said licence was issued by him at the request of the concerned Clerk Shri Dudhrejia or any other officer. Such defence was taken by the delinquent at a much later stage in the disciplinary inquiry, though unsuccessfully. It is quite possible that apart from the delinquent, there were other persons involved in the aforesaid fraudulent scheme and a further inquiry could have revealed the names of the other persons involved. However, merely because further inquiry was not made, the delinquent cannot be exonerated even though by evidence on record the charge against him has been proved.As to the second charge, there is no denial by the delinquent that he had left certain licence numbers blank while issuing the licence numbers. He has not even explained why such blanks were maintained nor he has denied that the said blanks were maintained with an ulterior intention to issue bogus licence at a later date. In absence of even a bare denial, the charge has rightly been held to be proved by the disciplinary authority. The fact that no licence was issued in the said numbers at any point of time thereafter is of no consequence.Even the third charge has been proved by the statement of the concerned persons i.e. Shri B.K. Chauhan and Shri N.P. Ptni. It should also be noted that even in answer to the report of the inquiry officer, the delinquent has not made out any case based on the evidence on record. Even the said reply is evasive.” 5. The Division Bench of the High Court, however, on an appeal preferred by the delinquent officer, allowed the said appeal holding; “Yes, the deceased Gajanand Dalwadi should have been more careful while preparing the duplicate licence, he may have acted designedly. After all, he may not have understood the nature of work and manner of transacting it since it was not his function since he was working in the accounts. Therefore, the conclusions drawn by the Tribunal were justified and there could be no reason to upturn them.” (emphasis supplied) 6. Mr. Yashank Adhyaru, the learned senior counsel appearing on behalf of the appellant submitted that the approach of the Division Bench of the High Court is wholly erroneous and thus is liable to be set aside.7. Mr. H.K. Puri, learned counsel appearing on behalf of the respondent, on the other hand, would support the judgment. 8. Forgery of a licence is a serious charge. It cannot be condoned only because it has been done at the instance of a colleague, even if it be so assumed. As noticed hereinbefore, even the employee concerned has denied that the licence was issued at his instance. 9. The learned Tribunal as also the Division Bench of the High Court, with respect, misdirected themselves in law, as they posed unto themselves wrong questions. Misconduct, of such a magnitude, when proved, cannot be ignored on surmises and conjectures. Equity, in a case of this nature, would have no role to play. 10. When a forgery is committed with a view to assist a person to make unlawful gain for himself or to cause unlawful loss to another, the matter should be viewed seriously. The Tribunal is not an appellate authority, its jurisdiction was also limited. It could not have ordinarily interfered with the quantum of punishment unless it was held to be wholly disproportionate to the imputation of charges. If ordinarily in regard to the commission of the offence of forgery, an Order of dismissal/removal is an appropriate punishment; as has been held in a large number of case, the same could not have been sidetracked. See U.P.S.R.T.C. Vs. Ram Kishan Arora, [2007 (6) SCALE 721 ], Ramesh Chandra Sharma Vs. Punjab National Bank and Anr. [2007(8)SCALE240] and UCO Bank and Anr. Vs. Rajinder Lal Capoor [(2007) 6 SCC 694] . 11. The approach of the learned Single Judge, in our opinion was the correct one. 12. Once, it was held that the delinquent had acted designedly, it could not have also been held that he might not have understood the nature of work or manner of transacting it, since it was not his function as he had been working in the accounts. Finding of fact arrived at by the Enquiry Officer which was accepted by the learned Single Judge, was that the issuance of licence, which it was not his job, was itself a misconduct. The Division Bench of the High Court clearly overlooked the fact that it is the positive case of the State that the delinquent officer was working in the Licence Department prior to his transfer to the Accounts Department and, therefore, he knew about the modalities of grant of licence. An application for grant of licence must be processed having regard to the provisions of the Central Motor Vehicles Rules. An application in Form 4 is required to be filed as envisaged under Rule 14. Only, upon proper scrutiny thereof, a licence could be granted in Form 6 as envisaged under Rule 16 of the Rules. Issuance of a forged licence, having regard to the said provisions, is a serious matter, which could not have been ignored on the ipse dixit of the Tribunal.13. For the reasons aforementioned, the | 1[ds]Once, it was held that the delinquent had acted designedly, it could not have also been held that he might not have understood the nature of work or manner of transacting it, since it was not his function as he had been working in the accounts. Finding of fact arrived at by the Enquiry Officer which was accepted by the learned Single Judge, was that the issuance of licence, which it was not his job, was itself a misconduct. The Division Bench of the High Court clearly overlooked the fact that it is the positive case of the State that the delinquent officer was working in the Licence Department prior to his transfer to the Accounts Department and, therefore, he knew about the modalities of grant of licence. An application for grant of licence must be processed having regard to the provisions of the Central Motor Vehicles Rules. An application in Form 4 is required to be filed as envisaged under Rule 14. Only, upon proper scrutiny thereof, a licence could be granted in Form 6 as envisaged under Rule 16 of the Rules. Issuance of a forged licence, having regard to the said provisions, is a serious matter, which could not have been ignored on the ipse dixit of the Tribunal. | 1 | 1,651 | 236 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the accident, he did not possess a valid driving licence. In the circumstances the owner of the vehicle Sugarmal Bherumal, could not have claimed insurance money for the damage caused to the vehicle. With a view to facilitating the insurance claim, the said Sagarmal Bherumal arranged for issuance of a duplicate licence in the name of driver-Narendra Kumar for the period covering the date of the accident. Indisputably, the duplicate licence was issued by the delinquent. Obviously, the duplicate licence was obtained by the owner Sagarmal Bherumal with an intention to defraud the insurance Company. The delinquent played an Important role in this fraudulent scheme by issuing duplicate licence. Indisputably, it was neither the function of the delinquent to issue such licence nor was it his defence that the said licence was issued by him at the request of the concerned Clerk Shri Dudhrejia or any other officer. Such defence was taken by the delinquent at a much later stage in the disciplinary inquiry, though unsuccessfully. It is quite possible that apart from the delinquent, there were other persons involved in the aforesaid fraudulent scheme and a further inquiry could have revealed the names of the other persons involved. However, merely because further inquiry was not made, the delinquent cannot be exonerated even though by evidence on record the charge against him has been proved.As to the second charge, there is no denial by the delinquent that he had left certain licence numbers blank while issuing the licence numbers. He has not even explained why such blanks were maintained nor he has denied that the said blanks were maintained with an ulterior intention to issue bogus licence at a later date. In absence of even a bare denial, the charge has rightly been held to be proved by the disciplinary authority. The fact that no licence was issued in the said numbers at any point of time thereafter is of no consequence.Even the third charge has been proved by the statement of the concerned persons i.e. Shri B.K. Chauhan and Shri N.P. Ptni. It should also be noted that even in answer to the report of the inquiry officer, the delinquent has not made out any case based on the evidence on record. Even the said reply is evasive.” 5. The Division Bench of the High Court, however, on an appeal preferred by the delinquent officer, allowed the said appeal holding; “Yes, the deceased Gajanand Dalwadi should have been more careful while preparing the duplicate licence, he may have acted designedly. After all, he may not have understood the nature of work and manner of transacting it since it was not his function since he was working in the accounts. Therefore, the conclusions drawn by the Tribunal were justified and there could be no reason to upturn them.” (emphasis supplied) 6. Mr. Yashank Adhyaru, the learned senior counsel appearing on behalf of the appellant submitted that the approach of the Division Bench of the High Court is wholly erroneous and thus is liable to be set aside.7. Mr. H.K. Puri, learned counsel appearing on behalf of the respondent, on the other hand, would support the judgment. 8. Forgery of a licence is a serious charge. It cannot be condoned only because it has been done at the instance of a colleague, even if it be so assumed. As noticed hereinbefore, even the employee concerned has denied that the licence was issued at his instance. 9. The learned Tribunal as also the Division Bench of the High Court, with respect, misdirected themselves in law, as they posed unto themselves wrong questions. Misconduct, of such a magnitude, when proved, cannot be ignored on surmises and conjectures. Equity, in a case of this nature, would have no role to play. 10. When a forgery is committed with a view to assist a person to make unlawful gain for himself or to cause unlawful loss to another, the matter should be viewed seriously. The Tribunal is not an appellate authority, its jurisdiction was also limited. It could not have ordinarily interfered with the quantum of punishment unless it was held to be wholly disproportionate to the imputation of charges. If ordinarily in regard to the commission of the offence of forgery, an Order of dismissal/removal is an appropriate punishment; as has been held in a large number of case, the same could not have been sidetracked. See U.P.S.R.T.C. Vs. Ram Kishan Arora, [2007 (6) SCALE 721 ], Ramesh Chandra Sharma Vs. Punjab National Bank and Anr. [2007(8)SCALE240] and UCO Bank and Anr. Vs. Rajinder Lal Capoor [(2007) 6 SCC 694] . 11. The approach of the learned Single Judge, in our opinion was the correct one. 12. Once, it was held that the delinquent had acted designedly, it could not have also been held that he might not have understood the nature of work or manner of transacting it, since it was not his function as he had been working in the accounts. Finding of fact arrived at by the Enquiry Officer which was accepted by the learned Single Judge, was that the issuance of licence, which it was not his job, was itself a misconduct. The Division Bench of the High Court clearly overlooked the fact that it is the positive case of the State that the delinquent officer was working in the Licence Department prior to his transfer to the Accounts Department and, therefore, he knew about the modalities of grant of licence. An application for grant of licence must be processed having regard to the provisions of the Central Motor Vehicles Rules. An application in Form 4 is required to be filed as envisaged under Rule 14. Only, upon proper scrutiny thereof, a licence could be granted in Form 6 as envisaged under Rule 16 of the Rules. Issuance of a forged licence, having regard to the said provisions, is a serious matter, which could not have been ignored on the ipse dixit of the Tribunal.13. For the reasons aforementioned, the
### Response:
1
### Explanation:
Once, it was held that the delinquent had acted designedly, it could not have also been held that he might not have understood the nature of work or manner of transacting it, since it was not his function as he had been working in the accounts. Finding of fact arrived at by the Enquiry Officer which was accepted by the learned Single Judge, was that the issuance of licence, which it was not his job, was itself a misconduct. The Division Bench of the High Court clearly overlooked the fact that it is the positive case of the State that the delinquent officer was working in the Licence Department prior to his transfer to the Accounts Department and, therefore, he knew about the modalities of grant of licence. An application for grant of licence must be processed having regard to the provisions of the Central Motor Vehicles Rules. An application in Form 4 is required to be filed as envisaged under Rule 14. Only, upon proper scrutiny thereof, a licence could be granted in Form 6 as envisaged under Rule 16 of the Rules. Issuance of a forged licence, having regard to the said provisions, is a serious matter, which could not have been ignored on the ipse dixit of the Tribunal.
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Smt. Poonam Lata Vs. M.L. Wadhawan & Anr | Bengal 1975 3 SCC 490 : (AIR 1974 SC 2149 at p. 2151) where a three-Judge Bench of this Court observed :- It is true that he had been held in custody in connection with the offences under the Arms Act which are non-bailable offences, but even so, it was open to the trying Magistrate to release the petitioner on bail. The District Magistrate, on information received by him, thought that the petitioner was likely to be released on bail in which case having regard to his past activities, it was open to the District Magistrate to come to the reasonable conclusion that having regard to the desperate nature of the activities of the petitioner, his enlargement on bail would be no deterrent to his desperate activity. Hence the District Magistrate was entitled to pass the order of detention if that was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. That very question again came before a two Judge Bench in Dr. Ramakrishna Rawat v. District Magistrate Jabalpur, 1975 4 SCC 164 : (AIR 1975 SC 90 ) where it was observed (at p. 93 of AIR) :- In the case in hand, as already noticed, the petitioner was in jail custody in proceedings under section 151, Cr.P.C. that custody was obviously of a short duration. That mere service of the detention order on the petitioner in jail would not therefore invalidate the order. On the basis of the antecedent activities of the petitioner in the proximate past the detaining authority could reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code. In Vijay Kumar v. State of Jammu and Kashmir, 1982 2 SCC 43 : (AIR 1982 SC 1023 ) a two-Judge Bench of this Court pointed out (at p. 1027 of AIR) :- If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. That vexed question came before a two-Judge Bench of this Court in the case of Merugu Satyanarayana v. State of Andhra Pradesh, 1982 3 SCC 301 : (AIR 1982 SC 1543 ) wherein it was observed :- Now, if the man is already detained can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made ? The Court then referred to the Constitution Bench decision in Rameshwar Shaws case (supra) and left it as a matter to be decided in every individual case on its own facts. The Court also indicated that it was not a matter of jurisdiction but had to be decided on the facts of each case 8. We may now refer to a recent judgment of a three-Judge Bench in the case of Suraj Pal Sahu v. State of Maharashtra, 1986 4 SCC 378 : (AIR 1986 SC 2177 ). Mukharji, J. who delivered the judgment in Binod Singhs case (AIR 1986 SC 2090 ) (supra) on which Mr. Garg has relied has also delivered the judgment in this case. Therein it was said (at pp. 2185-86 of AIR) :- In Ramesh Yadav v. District Magistrate, Etah, 1985 4 SCC 232 : (AIR 1986 SC 315 ) it was held that merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. If the apprehension of the detaining authority was true, court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. We respectfully agree with this conclusion. But this principle will have to be judged and applied in the facts and circumstances of each case. Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardise the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention ....... 9. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed. 10. | 0[ds]6. From the facts and circumstances emerging in this case it is clear that the detenu had been called by the Customs Authorities for investigation. A statement had been made by him under section 108 of the Customs Act and thereafter he was taken into custody and produced before the Additional Chief Metropolitan Magistrate who remanded him to custody and directed him to be produced on the following day in the court. By the time the order of detention came to be made the petitioner was in jail for at the most one day. Charge-sheet had not been submitted against him in the criminal case and he had been remanded to the judicial custody on the 27th of February, 1986 with the direction to be produced before the Metropolitan Magistrate on the 28th February, 19869. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed | 0 | 4,155 | 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.
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Bengal 1975 3 SCC 490 : (AIR 1974 SC 2149 at p. 2151) where a three-Judge Bench of this Court observed :- It is true that he had been held in custody in connection with the offences under the Arms Act which are non-bailable offences, but even so, it was open to the trying Magistrate to release the petitioner on bail. The District Magistrate, on information received by him, thought that the petitioner was likely to be released on bail in which case having regard to his past activities, it was open to the District Magistrate to come to the reasonable conclusion that having regard to the desperate nature of the activities of the petitioner, his enlargement on bail would be no deterrent to his desperate activity. Hence the District Magistrate was entitled to pass the order of detention if that was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. That very question again came before a two Judge Bench in Dr. Ramakrishna Rawat v. District Magistrate Jabalpur, 1975 4 SCC 164 : (AIR 1975 SC 90 ) where it was observed (at p. 93 of AIR) :- In the case in hand, as already noticed, the petitioner was in jail custody in proceedings under section 151, Cr.P.C. that custody was obviously of a short duration. That mere service of the detention order on the petitioner in jail would not therefore invalidate the order. On the basis of the antecedent activities of the petitioner in the proximate past the detaining authority could reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code. In Vijay Kumar v. State of Jammu and Kashmir, 1982 2 SCC 43 : (AIR 1982 SC 1023 ) a two-Judge Bench of this Court pointed out (at p. 1027 of AIR) :- If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. That vexed question came before a two-Judge Bench of this Court in the case of Merugu Satyanarayana v. State of Andhra Pradesh, 1982 3 SCC 301 : (AIR 1982 SC 1543 ) wherein it was observed :- Now, if the man is already detained can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made ? The Court then referred to the Constitution Bench decision in Rameshwar Shaws case (supra) and left it as a matter to be decided in every individual case on its own facts. The Court also indicated that it was not a matter of jurisdiction but had to be decided on the facts of each case 8. We may now refer to a recent judgment of a three-Judge Bench in the case of Suraj Pal Sahu v. State of Maharashtra, 1986 4 SCC 378 : (AIR 1986 SC 2177 ). Mukharji, J. who delivered the judgment in Binod Singhs case (AIR 1986 SC 2090 ) (supra) on which Mr. Garg has relied has also delivered the judgment in this case. Therein it was said (at pp. 2185-86 of AIR) :- In Ramesh Yadav v. District Magistrate, Etah, 1985 4 SCC 232 : (AIR 1986 SC 315 ) it was held that merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. If the apprehension of the detaining authority was true, court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. We respectfully agree with this conclusion. But this principle will have to be judged and applied in the facts and circumstances of each case. Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardise the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention ....... 9. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed. 10.
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0
### Explanation:
6. From the facts and circumstances emerging in this case it is clear that the detenu had been called by the Customs Authorities for investigation. A statement had been made by him under section 108 of the Customs Act and thereafter he was taken into custody and produced before the Additional Chief Metropolitan Magistrate who remanded him to custody and directed him to be produced on the following day in the court. By the time the order of detention came to be made the petitioner was in jail for at the most one day. Charge-sheet had not been submitted against him in the criminal case and he had been remanded to the judicial custody on the 27th of February, 1986 with the direction to be produced before the Metropolitan Magistrate on the 28th February, 19869. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed
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ORIENTAL INSURANCE COMPANY LIMITED Vs. MAHENDRA CONSTRUCTION | also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. (Emphasis supplied) In Satwant Kaur Sandhu v New India Assurance Co. Ltd (2009) 8 SCC 316 , a two-judge Bench of this Court held that under a contract of insurance, the insured is under a solemn obligation to make a true and full disclosure of information asked for in the proposal form: 18…Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment… (Emphasis supplied) It was further held there is a clear presumption that any information sought in the proposal form is a material fact: 25. The upshot of the entire discussion is that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Information regarding insurance claims lodged by the respondent for his excavator in the preceding three years was a material fact. The burden of establishing that the insured made a false representation and suppressed material facts lies on the insurer. The insurer has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. The mere disclosure of a previous insurance policy did not discharge the obligation which was cast on the respondent, as the proposer, to make a full, true and complete disclosure of the claims which were lodged under the previous policy in the preceding three years. The proposal form contained a specific question regarding claims lodged in the preceding three years. The respondent was under a bounden duty to disclose that the excavator was previously insured with another insurer and that a claim for damage to the excavator on 12 April 2005 had been settled. It was only in the affidavit of evidence dated 6 January 2017, that the respondent disclosed that New India Assurance Company Limited had paid an amount of Rs 36.66 lakhs by cheque on 23 September 2005. This material fact was suppressed from the proposal form. 12. The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent while making the proposal to make a clear and specific disclosure. The insurance policy with New India Assurance Company Limited was for the period from 15 November 2004 to 14 November 2005. The excavator remained uninsured from 15 November 2005 until 10 October 2006. The case of the respondent was that during that period, it was under repair. This fact, together with the receipt of the earlier insurance claim, was material to the decision of the insurer on whether to accept the proposal for insurance. The disclosures which were required in paragraph 25(g) of the proposal form were material to assess the risk profile of the vehicle at the time of accepting the proposal for insurance. 13. The SCDRC proceeded on the hypothesis that the insurer had not denied the averment of the respondent in the complaint that the Administrative Officer was fully satisfied of the previous insurance cover and claim, as is evident from the use of the expression enclosed in paragraph 25(g). The averment in paragraph 8 of the complaint was specifically denied by the insurer. But, that apart, it is evident on a bare reading of the proposal form that material information which was required to be disclosed was suppressed by the insured. The proposal form contains a declaration of the insured that the statements which are made are true to the knowledge of the proposer and the declaration forms the basis of the contract with the insurer. 14. In the circumstances, the decision of the SCDRC to allow the claim was erroneous and the NCDRC equally erred in affirming the decision. 15. Learned counsel appearing on behalf of the insured urged that the respondent relied on the Administrative Officer who filled in the requisite details in the proposal form. The fact of the matter is that the respondent was under an obligation to make a full disclosure of the status of the previous insurance policy, together with the material facts relevant to the claim which had been lodged with New India Assurance Company Limited. The fact that such a claim was lodged and had been settled at Rs 36.66 lakhs was suppressed. This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer. | 1[ds]9. The proposal form which was filled up in order to obtain the policy of insurance merely records the date of purchase of the vehicle as 2004. As against the other queries, there is a handwritten endorsement, namely, enclosed10. The NCDRC entered a finding that since the previous insurance policy had been enclosed with the proposal form, the insurer could, upon further enquiry, have learnt of the status of the claims under the earlier policy. The NCDRC considered the exception to Section 19 of the Indian Contract Act, 1872 and held that the insurer could have easily verified the claims submitted by the insured under the previous policy. It was thus held that the insurer cannot deny the benefit of insurance on account of the information not having been disclosed in the proposal form. However, the NCDRC noted that the insured had not expressly disclosed the previous claim and in consequence, deducted twenty-five of the amount payable under the contract of insurance11. In our view, this line of reasoning of the NCDRC is flawed. Insurance is governed by the principle of utmost good faith, which imposes a duty of disclosure on the insured with regard to material facts.Information regarding insurance claims lodged by the respondent for his excavator in the preceding three years was a material fact. The burden of establishing that the insured made a false representation and suppressed material facts lies on the insurer. The insurer has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. The mere disclosure of a previous insurance policy did not discharge the obligation which was cast on the respondent, as the proposer, to make a full, true and complete disclosure of the claims which were lodged under the previous policy in the preceding three years. The proposal form contained a specific question regarding claims lodged in the preceding three years. The respondent was under a bounden duty to disclose that the excavator was previously insured with another insurer and that a claim for damage to the excavator on 12 April 2005 had been settled. It was only in the affidavit of evidence dated 6 January 2017, that the respondent disclosed that New India Assurance Company Limited had paid an amount of Rs 36.66 lakhs by cheque on 23 September 2005. This material fact was suppressed from the proposal form12. The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent while making the proposal to make a clear and specific disclosure. The insurance policy with New India Assurance Company Limited was for the period from 15 November 2004 to 14 November 2005. The excavator remained uninsured from 15 November 2005 until 10 October 2006. The case of the respondent was that during that period, it was under repair. This fact, together with the receipt of the earlier insurance claim, was material to the decision of the insurer on whether to accept the proposal for insurance. The disclosures which were required in paragraph 25(g) of the proposal form were material to assess the risk profile of the vehicle at the time of accepting the proposal for insurance13. The SCDRC proceeded on the hypothesis that the insurer had not denied the averment of the respondent in the complaint that the Administrative Officer was fully satisfied of the previous insurance cover and claim, as is evident from the use of the expression enclosed in paragraph 25(g). The averment in paragraph 8 of the complaint was specifically denied by the insurer. But, that apart, it is evident on a bare reading of the proposal form that material information which was required to be disclosed was suppressed by the insured. The proposal form contains a declaration of the insured that the statements which are made are true to the knowledge of the proposer and the declaration forms the basis of the contract with the insurer14. In the circumstances, the decision of the SCDRC to allow the claim was erroneous and the NCDRC equally erred in affirming the decisionThe fact of the matter is that the respondent was under an obligation to make a full disclosure of the status of the previous insurance policy, together with the material facts relevant to the claim which had been lodged with New India Assurance Company Limited. The fact that such a claim was lodged and had been settled at Rs 36.66 lakhs was suppressed. This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer. | 1 | 2,401 | 875 | ### 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:
also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. (Emphasis supplied) In Satwant Kaur Sandhu v New India Assurance Co. Ltd (2009) 8 SCC 316 , a two-judge Bench of this Court held that under a contract of insurance, the insured is under a solemn obligation to make a true and full disclosure of information asked for in the proposal form: 18…Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment… (Emphasis supplied) It was further held there is a clear presumption that any information sought in the proposal form is a material fact: 25. The upshot of the entire discussion is that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Information regarding insurance claims lodged by the respondent for his excavator in the preceding three years was a material fact. The burden of establishing that the insured made a false representation and suppressed material facts lies on the insurer. The insurer has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. The mere disclosure of a previous insurance policy did not discharge the obligation which was cast on the respondent, as the proposer, to make a full, true and complete disclosure of the claims which were lodged under the previous policy in the preceding three years. The proposal form contained a specific question regarding claims lodged in the preceding three years. The respondent was under a bounden duty to disclose that the excavator was previously insured with another insurer and that a claim for damage to the excavator on 12 April 2005 had been settled. It was only in the affidavit of evidence dated 6 January 2017, that the respondent disclosed that New India Assurance Company Limited had paid an amount of Rs 36.66 lakhs by cheque on 23 September 2005. This material fact was suppressed from the proposal form. 12. The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent while making the proposal to make a clear and specific disclosure. The insurance policy with New India Assurance Company Limited was for the period from 15 November 2004 to 14 November 2005. The excavator remained uninsured from 15 November 2005 until 10 October 2006. The case of the respondent was that during that period, it was under repair. This fact, together with the receipt of the earlier insurance claim, was material to the decision of the insurer on whether to accept the proposal for insurance. The disclosures which were required in paragraph 25(g) of the proposal form were material to assess the risk profile of the vehicle at the time of accepting the proposal for insurance. 13. The SCDRC proceeded on the hypothesis that the insurer had not denied the averment of the respondent in the complaint that the Administrative Officer was fully satisfied of the previous insurance cover and claim, as is evident from the use of the expression enclosed in paragraph 25(g). The averment in paragraph 8 of the complaint was specifically denied by the insurer. But, that apart, it is evident on a bare reading of the proposal form that material information which was required to be disclosed was suppressed by the insured. The proposal form contains a declaration of the insured that the statements which are made are true to the knowledge of the proposer and the declaration forms the basis of the contract with the insurer. 14. In the circumstances, the decision of the SCDRC to allow the claim was erroneous and the NCDRC equally erred in affirming the decision. 15. Learned counsel appearing on behalf of the insured urged that the respondent relied on the Administrative Officer who filled in the requisite details in the proposal form. The fact of the matter is that the respondent was under an obligation to make a full disclosure of the status of the previous insurance policy, together with the material facts relevant to the claim which had been lodged with New India Assurance Company Limited. The fact that such a claim was lodged and had been settled at Rs 36.66 lakhs was suppressed. This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer.
### Response:
1
### Explanation:
9. The proposal form which was filled up in order to obtain the policy of insurance merely records the date of purchase of the vehicle as 2004. As against the other queries, there is a handwritten endorsement, namely, enclosed10. The NCDRC entered a finding that since the previous insurance policy had been enclosed with the proposal form, the insurer could, upon further enquiry, have learnt of the status of the claims under the earlier policy. The NCDRC considered the exception to Section 19 of the Indian Contract Act, 1872 and held that the insurer could have easily verified the claims submitted by the insured under the previous policy. It was thus held that the insurer cannot deny the benefit of insurance on account of the information not having been disclosed in the proposal form. However, the NCDRC noted that the insured had not expressly disclosed the previous claim and in consequence, deducted twenty-five of the amount payable under the contract of insurance11. In our view, this line of reasoning of the NCDRC is flawed. Insurance is governed by the principle of utmost good faith, which imposes a duty of disclosure on the insured with regard to material facts.Information regarding insurance claims lodged by the respondent for his excavator in the preceding three years was a material fact. The burden of establishing that the insured made a false representation and suppressed material facts lies on the insurer. The insurer has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. The mere disclosure of a previous insurance policy did not discharge the obligation which was cast on the respondent, as the proposer, to make a full, true and complete disclosure of the claims which were lodged under the previous policy in the preceding three years. The proposal form contained a specific question regarding claims lodged in the preceding three years. The respondent was under a bounden duty to disclose that the excavator was previously insured with another insurer and that a claim for damage to the excavator on 12 April 2005 had been settled. It was only in the affidavit of evidence dated 6 January 2017, that the respondent disclosed that New India Assurance Company Limited had paid an amount of Rs 36.66 lakhs by cheque on 23 September 2005. This material fact was suppressed from the proposal form12. The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent while making the proposal to make a clear and specific disclosure. The insurance policy with New India Assurance Company Limited was for the period from 15 November 2004 to 14 November 2005. The excavator remained uninsured from 15 November 2005 until 10 October 2006. The case of the respondent was that during that period, it was under repair. This fact, together with the receipt of the earlier insurance claim, was material to the decision of the insurer on whether to accept the proposal for insurance. The disclosures which were required in paragraph 25(g) of the proposal form were material to assess the risk profile of the vehicle at the time of accepting the proposal for insurance13. The SCDRC proceeded on the hypothesis that the insurer had not denied the averment of the respondent in the complaint that the Administrative Officer was fully satisfied of the previous insurance cover and claim, as is evident from the use of the expression enclosed in paragraph 25(g). The averment in paragraph 8 of the complaint was specifically denied by the insurer. But, that apart, it is evident on a bare reading of the proposal form that material information which was required to be disclosed was suppressed by the insured. The proposal form contains a declaration of the insured that the statements which are made are true to the knowledge of the proposer and the declaration forms the basis of the contract with the insurer14. In the circumstances, the decision of the SCDRC to allow the claim was erroneous and the NCDRC equally erred in affirming the decisionThe fact of the matter is that the respondent was under an obligation to make a full disclosure of the status of the previous insurance policy, together with the material facts relevant to the claim which had been lodged with New India Assurance Company Limited. The fact that such a claim was lodged and had been settled at Rs 36.66 lakhs was suppressed. This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer.
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Nhpc Ltd Vs. M/S Jai Prakash Associates Ltd | Abhay Manohar Sapre, J. 1. Leave granted.2. This appeal is filed against the final judgment and order dated 06.02.2014 passed by the High Court of Punjab and Haryana at Chandigarh in F.A.O. No. 3607 of 2011 wherein the Single Judge of the High Court dismissed the FAO filed by the appellant herein, in consequence, affirmed the order dated 24.12.2010 passed by the Additional District Judge, Faridabad in Arbitration Petition No.52 of 2010. 3. On 11.08.2014, this Court issued notice of the appeal to respondent No. 1 confining it to examine only the question regarding the rate of interest awarded by the High Court on the awarded sum to the respondent.4. Therefore, the short question involved in the appeal is whether the rate of interest awarded by the High Court on the awarded sum is proper or not.5. Having regard to the short controversy involved in the case, it is not necessary to burden the order by mentioning the facts in detail except to the extent necessary for the disposal of the appeal.6. The appellant-Government of India Company awarded a contract dated 21.03.2001 to respondent No.1 for doing some specific civil construction work in the project-Teesta V Hydroelectric Project at Sikkim known as Lot TT-4 civil works.7. In execution of the aforesaid work, disputes regarding non-payment of dues for the work done by respondent No.1 and several ancillary disputes in connection thereto arose between the parties. Since the parties could not amicably settle the disputes and hence they were referred to the Arbitral Tribunal in terms of the arbitration clause contained in the contract. The Arbitral Tribunal consisted of three arbitrators.8. Respondent No. 1 filed their claim for recovery of Rs.537.88 lacs against the appellant before the Arbitral Tribunal towards their outstanding dues of various natures. The appellant contested the claim of the respondent.9. By award dated 10.05.2008, the Arbitral Tribunal partly allowed the claim of respondent No.1 and accordingly awarded them a total sum of Rs.356.78 lacs. The Arbitral Tribunal also awarded 10% p.a. simple interest payable on the awarded sum (Rs.356.78 lacs) from the date of accrual of cause of action till the date of award and further awarded future interest at the rate of 12% p.a. on the awarded sum, i.e., Rs.451.49 lacs (Rs.356.78 lacs principal sum + Rs.94.71 lacs interest = Rs.451.49 lacs) payable from the date of award till recovery.10. The appellant, felt aggrieved, challenged the legality of the aforesaid award under Section 34 of the Arbitration and Conciliation Act, 1996 before the Additional District Judge, Faridabad, who by order dated 24.12.2010 partly allowed the application and modified the award accordingly.11. The appellant, felt aggrieved, challenged the order of the Additional District Judge and filed appeal before the High Court. By impugned order, the High Court dismissed the appeal and upheld the order passed by the Additional District Judge.12. Felt aggrieved, the appellant has filed this appeal by way of special leave before this Court. 13. Heard Mr. Gaurab Banerji, learned senior counsel for the appellant and Mr. Sarvjit Pratap Singh, learned counsel for respondent No.1.14. Submission of the learned counsel for the appellant was only one. According to him, the High Court while dismissing the appeal and in principle upholding of the award of the Arbitral Tribunal wrongly awarded interest at the rate of 12% p.a. and 18% p.a. in place of 10% and 12% p.a. which was awarded by the Arbitral Tribunal. It was, therefore, his submission that this error appears to be more in the nature of typographical error rather than on merits and hence needs to be corrected by this Court by restoring the same rate of interest which was awarded by the Arbitral Tribunal in the award dated 10.05.2008 and upheld by Additional District Judge vide his order dated 24.12.2010, i.e., 10% and 12% respectively as detailed above in para 9.15. Learned counsel for respondent No.1 candidly admitted the error committed by the High Court in the order while awarding the interest. Respondent No.1 also in their counter at page 204 admitted the error, which was pointed out by the appellant while awarding the rate of interest.16. In our opinion, the submission urged by the appellant appears to be correct and hence it deserves to be accepted. As mentioned above, even the respondent could not oppose the prayer made by the appellant which appear to be more in the nature of typographical error. | 1[ds]16. In our opinion, the submission urged by the appellant appears to be correct and hence it deserves to be accepted. As mentioned above, even the respondent could not oppose the prayer made by the appellant which appear to be more in the nature of typographical error. | 1 | 812 | 56 | ### 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:
Abhay Manohar Sapre, J. 1. Leave granted.2. This appeal is filed against the final judgment and order dated 06.02.2014 passed by the High Court of Punjab and Haryana at Chandigarh in F.A.O. No. 3607 of 2011 wherein the Single Judge of the High Court dismissed the FAO filed by the appellant herein, in consequence, affirmed the order dated 24.12.2010 passed by the Additional District Judge, Faridabad in Arbitration Petition No.52 of 2010. 3. On 11.08.2014, this Court issued notice of the appeal to respondent No. 1 confining it to examine only the question regarding the rate of interest awarded by the High Court on the awarded sum to the respondent.4. Therefore, the short question involved in the appeal is whether the rate of interest awarded by the High Court on the awarded sum is proper or not.5. Having regard to the short controversy involved in the case, it is not necessary to burden the order by mentioning the facts in detail except to the extent necessary for the disposal of the appeal.6. The appellant-Government of India Company awarded a contract dated 21.03.2001 to respondent No.1 for doing some specific civil construction work in the project-Teesta V Hydroelectric Project at Sikkim known as Lot TT-4 civil works.7. In execution of the aforesaid work, disputes regarding non-payment of dues for the work done by respondent No.1 and several ancillary disputes in connection thereto arose between the parties. Since the parties could not amicably settle the disputes and hence they were referred to the Arbitral Tribunal in terms of the arbitration clause contained in the contract. The Arbitral Tribunal consisted of three arbitrators.8. Respondent No. 1 filed their claim for recovery of Rs.537.88 lacs against the appellant before the Arbitral Tribunal towards their outstanding dues of various natures. The appellant contested the claim of the respondent.9. By award dated 10.05.2008, the Arbitral Tribunal partly allowed the claim of respondent No.1 and accordingly awarded them a total sum of Rs.356.78 lacs. The Arbitral Tribunal also awarded 10% p.a. simple interest payable on the awarded sum (Rs.356.78 lacs) from the date of accrual of cause of action till the date of award and further awarded future interest at the rate of 12% p.a. on the awarded sum, i.e., Rs.451.49 lacs (Rs.356.78 lacs principal sum + Rs.94.71 lacs interest = Rs.451.49 lacs) payable from the date of award till recovery.10. The appellant, felt aggrieved, challenged the legality of the aforesaid award under Section 34 of the Arbitration and Conciliation Act, 1996 before the Additional District Judge, Faridabad, who by order dated 24.12.2010 partly allowed the application and modified the award accordingly.11. The appellant, felt aggrieved, challenged the order of the Additional District Judge and filed appeal before the High Court. By impugned order, the High Court dismissed the appeal and upheld the order passed by the Additional District Judge.12. Felt aggrieved, the appellant has filed this appeal by way of special leave before this Court. 13. Heard Mr. Gaurab Banerji, learned senior counsel for the appellant and Mr. Sarvjit Pratap Singh, learned counsel for respondent No.1.14. Submission of the learned counsel for the appellant was only one. According to him, the High Court while dismissing the appeal and in principle upholding of the award of the Arbitral Tribunal wrongly awarded interest at the rate of 12% p.a. and 18% p.a. in place of 10% and 12% p.a. which was awarded by the Arbitral Tribunal. It was, therefore, his submission that this error appears to be more in the nature of typographical error rather than on merits and hence needs to be corrected by this Court by restoring the same rate of interest which was awarded by the Arbitral Tribunal in the award dated 10.05.2008 and upheld by Additional District Judge vide his order dated 24.12.2010, i.e., 10% and 12% respectively as detailed above in para 9.15. Learned counsel for respondent No.1 candidly admitted the error committed by the High Court in the order while awarding the interest. Respondent No.1 also in their counter at page 204 admitted the error, which was pointed out by the appellant while awarding the rate of interest.16. In our opinion, the submission urged by the appellant appears to be correct and hence it deserves to be accepted. As mentioned above, even the respondent could not oppose the prayer made by the appellant which appear to be more in the nature of typographical error.
### Response:
1
### Explanation:
16. In our opinion, the submission urged by the appellant appears to be correct and hence it deserves to be accepted. As mentioned above, even the respondent could not oppose the prayer made by the appellant which appear to be more in the nature of typographical error.
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Crompton Greaves Limited Vs. Amarjit Kaur Sadhusingh Sarna & Others | are pertaining to performance appraisal of complainant and others.Application was resisted by the company and a copy of say is at paperbook pages 72-73. The main contention challenging the prayer for directions to produce the documents, was that the application is vague and it does not specifically make out a case as to how the documents sought to be got produced, are relevant. The notice for production of documents is thus not tenable. Otherwise also, it was contended that the documents are not relevant for the purpose of adjudication of the complaint.Learned Member of the Tribunal disposed of the application vide order delivered on 22.9.2005. It is evident that the application is partly allowed. The operative part reproduced hereinbelow will suffice the purpose to demonstrate the extent to which the application is allowed."The respondent is hereby directed to give necessary inspection of pay sheets of the complainant along with other employees referred above to the complainant or his counsel by giving specific notice informing the date for verification till next date."3.Feeling aggrieved, the company carried the matter before the learned Single Judge of this High Court by way of Writ Petition No.8120 of 2005. Finding that there were no grounds to interfere with the order of the learned Member of the Tribunal, which was in the nature of interim order, learned Single Judge was pleased to dismiss the Writ Petition vide order dated 14.2.2006 and vacate the interim relief granted earlier.4.Heard learned counsel for respective parties. The submissions are in harmony with the contentions in the notice for production and reply to the same. Advocate Shri Shelke placed reliance upon the judgment of Division Bench of this High Court in the matter of 20th Century Fox Corpn. v. F.H. Lala, 1975 LAB.I.C. 517, for following proposition:"Before any Tribunal (including the Industrial Tribunal) can order production and inspection of documents it must be satisfied as to the relevancy of the documents called for. In order to determine the relevancy, there must be material before the Tribunal. In order that there should be material before the Tribunal, the applicant must place it before the Tribunal, and this he can do by setting out in the application the necessary facts, the necessary contentions as to the nature of the documents, the necessity for their production, what kind of reliance he wishes to place thereon and what is the case which he wishes to make out."We have no reason to disagree with the observations and "relevancy" would be the basic requirement for directing production of any document.Upon hearing the submissions of both the sides, we have not been able to avoid temptation of feeling that it should have been the Respondent-complainant, who could have felt aggrieved by the order passed by the learned Member of the Tribunal. On reference to items 5 and 9 (item 10 is not pressed before us), we have gathered that the grievance of the Respondent -complainant is about her supersession. Naturally, in order to demonstrate that she is superseded, she will have to place material and data before the Tribunal, which will indicate that a person in the cadre, in which complainant was serving and one who was junior to her in that cadre, was either upgraded or promoted, by denial of such upgradation/ promotion to her while both of them were in the zone of consideration for such purpose. In addition, she will have to demonstrate that she was more meritorious than the junior colleague who was upgraded/ promoted. She will at least have to demonstrate that she was competent for promotion and yet she was denied the same. Upon considering this hypothesis, we are convinced that the performance appraisal is the crucial document which would contain the material, if any, either supporting or demolishing the contention of the complainant. The pay-sheets, of which inspection is allowed, would only demonstrate as to what salary and under what head of account, the amounts were drawn by each employee. The company cannot deny the details as to when each of the employees was upgraded/promoted.We, therefore, feel that, in fact, the learned Member of the Tribunal has denied an order of production of documents which, we feel, were most relevant and has ordered production of document, which would certainly not throw any light upon the grievance of the complainant.We are, therefore, unable to agree with the view taken by learned Single Judge that the order of the Tribunal does not call for any interference.4.Feeling that the production of irrelevant document is ordered (even by denying production of relevant documents), we feel justified in quashing the orders passed by both, learned Single Judge as well as learned Member of the Tribunal. Consequently, Letters Patent Appeal succeeds and the orders of the Single Judge and learned Member of the Tribunal shall stand quashed and set aside.5.Before parting, we may refer to observations by learned Member of the Tribunal. He has observed that there cannot be any dispute that, if some documents are necessary for proving case of the employee and those documents are not in possession of the employee, but are in the custody of the employer, then for bringing those documents on record, directions can be given to Respondents to produce the same before the court. We, therefore, clarify that while allowing the Letters Patent Appeal and although learned Member of the Tribunal, while disposing of interim application of the complainant had rejected the prayer for production of performance appraisals of the complainant and other employees; since we have arrived at a conclusion that these performance appraisals will be the crucial documents for adjudicating upon the complaint in the light of the defence of the company that due to performance appraisal the complainant was denied promotion, it will be open for the complainant to pray the Tribunal to call for production of performance appraisals for its perusal, in the event the company does not suo-motu produce it. We also grant liberty to the complainant to pray for expeditious hearing of the complaint. | 1[ds]Upon hearing the submissions of both the sides, we have not been able to avoid temptation of feeling that it should have been thewho could have felt aggrieved by the order passed by the learned Member of the Tribunal. On reference to items 5 and 9 (item 10 is not pressed before us), we have gathered that the grievance of the Respondentcomplainant is about her supersession. Naturally, in order to demonstrate that she is superseded, she will have to place material and data before the Tribunal, which will indicate that a person in the cadre, in which complainant was serving and one who was junior to her in that cadre, was either upgraded or promoted, by denial of such upgradation/ promotion to her while both of them were in the zone of consideration for such purpose. In addition, she will have to demonstrate that she was more meritorious than the junior colleague who was upgraded/ promoted. She will at least have to demonstrate that she was competent for promotion and yet she was denied the same. Upon considering this hypothesis, we are convinced that the performance appraisal is the crucial document which would contain the material, if any, either supporting or demolishing the contention of the complainant. Theof which inspection is allowed, would only demonstrate as to what salary and under what head of account, the amounts were drawn by each employee. The company cannot deny the details as to when each of the employees was upgraded/promoted.We, therefore, feel that, in fact, the learned Member of the Tribunal has denied an order of production of documents which, we feel, were most relevant and has ordered production of document, which would certainly not throw any light upon the grievance of the complainant.We are, therefore, unable to agree with the view taken by learned Single Judge that the order of the Tribunal does not call for any interference.4.Feeling that the production of irrelevant document is ordered (even by denying production of relevant documents), we feel justified in quashing the orders passed by both, learned Single Judge as well as learned Member of the Tribunal. Consequently, Letters Patent Appeal succeeds and the orders of the Single Judge and learned Member of the Tribunal shall stand quashed and set aside.5.Before parting, we may refer to observations by learned Member of the Tribunal. He has observed that there cannot be any dispute that, if some documents are necessary for proving case of the employee and those documents are not in possession of the employee, but are in the custody of the employer, then for bringing those documents on record, directions can be given to Respondents to produce the same before the court. We, therefore, clarify that while allowing the Letters Patent Appeal and although learned Member of the Tribunal, while disposing of interim application of the complainant had rejected the prayer for production of performance appraisals of the complainant and other employees; since we have arrived at a conclusion that these performance appraisals will be the crucial documents for adjudicating upon the complaint in the light of the defence of the company that due to performance appraisal the complainant was denied promotion, it will be open for the complainant to pray the Tribunal to call for production of performance appraisals for its perusal, in the event the company does notproduce it. We also grant liberty to the complainant to pray for expeditious hearing of the complaint. | 1 | 1,348 | 630 | ### 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:
are pertaining to performance appraisal of complainant and others.Application was resisted by the company and a copy of say is at paperbook pages 72-73. The main contention challenging the prayer for directions to produce the documents, was that the application is vague and it does not specifically make out a case as to how the documents sought to be got produced, are relevant. The notice for production of documents is thus not tenable. Otherwise also, it was contended that the documents are not relevant for the purpose of adjudication of the complaint.Learned Member of the Tribunal disposed of the application vide order delivered on 22.9.2005. It is evident that the application is partly allowed. The operative part reproduced hereinbelow will suffice the purpose to demonstrate the extent to which the application is allowed."The respondent is hereby directed to give necessary inspection of pay sheets of the complainant along with other employees referred above to the complainant or his counsel by giving specific notice informing the date for verification till next date."3.Feeling aggrieved, the company carried the matter before the learned Single Judge of this High Court by way of Writ Petition No.8120 of 2005. Finding that there were no grounds to interfere with the order of the learned Member of the Tribunal, which was in the nature of interim order, learned Single Judge was pleased to dismiss the Writ Petition vide order dated 14.2.2006 and vacate the interim relief granted earlier.4.Heard learned counsel for respective parties. The submissions are in harmony with the contentions in the notice for production and reply to the same. Advocate Shri Shelke placed reliance upon the judgment of Division Bench of this High Court in the matter of 20th Century Fox Corpn. v. F.H. Lala, 1975 LAB.I.C. 517, for following proposition:"Before any Tribunal (including the Industrial Tribunal) can order production and inspection of documents it must be satisfied as to the relevancy of the documents called for. In order to determine the relevancy, there must be material before the Tribunal. In order that there should be material before the Tribunal, the applicant must place it before the Tribunal, and this he can do by setting out in the application the necessary facts, the necessary contentions as to the nature of the documents, the necessity for their production, what kind of reliance he wishes to place thereon and what is the case which he wishes to make out."We have no reason to disagree with the observations and "relevancy" would be the basic requirement for directing production of any document.Upon hearing the submissions of both the sides, we have not been able to avoid temptation of feeling that it should have been the Respondent-complainant, who could have felt aggrieved by the order passed by the learned Member of the Tribunal. On reference to items 5 and 9 (item 10 is not pressed before us), we have gathered that the grievance of the Respondent -complainant is about her supersession. Naturally, in order to demonstrate that she is superseded, she will have to place material and data before the Tribunal, which will indicate that a person in the cadre, in which complainant was serving and one who was junior to her in that cadre, was either upgraded or promoted, by denial of such upgradation/ promotion to her while both of them were in the zone of consideration for such purpose. In addition, she will have to demonstrate that she was more meritorious than the junior colleague who was upgraded/ promoted. She will at least have to demonstrate that she was competent for promotion and yet she was denied the same. Upon considering this hypothesis, we are convinced that the performance appraisal is the crucial document which would contain the material, if any, either supporting or demolishing the contention of the complainant. The pay-sheets, of which inspection is allowed, would only demonstrate as to what salary and under what head of account, the amounts were drawn by each employee. The company cannot deny the details as to when each of the employees was upgraded/promoted.We, therefore, feel that, in fact, the learned Member of the Tribunal has denied an order of production of documents which, we feel, were most relevant and has ordered production of document, which would certainly not throw any light upon the grievance of the complainant.We are, therefore, unable to agree with the view taken by learned Single Judge that the order of the Tribunal does not call for any interference.4.Feeling that the production of irrelevant document is ordered (even by denying production of relevant documents), we feel justified in quashing the orders passed by both, learned Single Judge as well as learned Member of the Tribunal. Consequently, Letters Patent Appeal succeeds and the orders of the Single Judge and learned Member of the Tribunal shall stand quashed and set aside.5.Before parting, we may refer to observations by learned Member of the Tribunal. He has observed that there cannot be any dispute that, if some documents are necessary for proving case of the employee and those documents are not in possession of the employee, but are in the custody of the employer, then for bringing those documents on record, directions can be given to Respondents to produce the same before the court. We, therefore, clarify that while allowing the Letters Patent Appeal and although learned Member of the Tribunal, while disposing of interim application of the complainant had rejected the prayer for production of performance appraisals of the complainant and other employees; since we have arrived at a conclusion that these performance appraisals will be the crucial documents for adjudicating upon the complaint in the light of the defence of the company that due to performance appraisal the complainant was denied promotion, it will be open for the complainant to pray the Tribunal to call for production of performance appraisals for its perusal, in the event the company does not suo-motu produce it. We also grant liberty to the complainant to pray for expeditious hearing of the complaint.
### Response:
1
### Explanation:
Upon hearing the submissions of both the sides, we have not been able to avoid temptation of feeling that it should have been thewho could have felt aggrieved by the order passed by the learned Member of the Tribunal. On reference to items 5 and 9 (item 10 is not pressed before us), we have gathered that the grievance of the Respondentcomplainant is about her supersession. Naturally, in order to demonstrate that she is superseded, she will have to place material and data before the Tribunal, which will indicate that a person in the cadre, in which complainant was serving and one who was junior to her in that cadre, was either upgraded or promoted, by denial of such upgradation/ promotion to her while both of them were in the zone of consideration for such purpose. In addition, she will have to demonstrate that she was more meritorious than the junior colleague who was upgraded/ promoted. She will at least have to demonstrate that she was competent for promotion and yet she was denied the same. Upon considering this hypothesis, we are convinced that the performance appraisal is the crucial document which would contain the material, if any, either supporting or demolishing the contention of the complainant. Theof which inspection is allowed, would only demonstrate as to what salary and under what head of account, the amounts were drawn by each employee. The company cannot deny the details as to when each of the employees was upgraded/promoted.We, therefore, feel that, in fact, the learned Member of the Tribunal has denied an order of production of documents which, we feel, were most relevant and has ordered production of document, which would certainly not throw any light upon the grievance of the complainant.We are, therefore, unable to agree with the view taken by learned Single Judge that the order of the Tribunal does not call for any interference.4.Feeling that the production of irrelevant document is ordered (even by denying production of relevant documents), we feel justified in quashing the orders passed by both, learned Single Judge as well as learned Member of the Tribunal. Consequently, Letters Patent Appeal succeeds and the orders of the Single Judge and learned Member of the Tribunal shall stand quashed and set aside.5.Before parting, we may refer to observations by learned Member of the Tribunal. He has observed that there cannot be any dispute that, if some documents are necessary for proving case of the employee and those documents are not in possession of the employee, but are in the custody of the employer, then for bringing those documents on record, directions can be given to Respondents to produce the same before the court. We, therefore, clarify that while allowing the Letters Patent Appeal and although learned Member of the Tribunal, while disposing of interim application of the complainant had rejected the prayer for production of performance appraisals of the complainant and other employees; since we have arrived at a conclusion that these performance appraisals will be the crucial documents for adjudicating upon the complaint in the light of the defence of the company that due to performance appraisal the complainant was denied promotion, it will be open for the complainant to pray the Tribunal to call for production of performance appraisals for its perusal, in the event the company does notproduce it. We also grant liberty to the complainant to pray for expeditious hearing of the complaint.
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State of Orissa and Another Vs. Karamshi Waghji Chauda | S. K. DAS, J.This appeal on a certificate granted by the High Court of Orissa is from the judgment and order of the said High Court dated August 8, 1955. The State of Orissa and the Sales Tax Assessing Authorities are the appellants. The assessee is the respondent.The assessee is a forest contractor in Orissa and carried on the business of collecting bamboo, firewood, timber etc., from the forest of Kalahandi in Orissa. He was assessed to sales tax for eight quarters beginning from April, 1, 1949, and ending on March 31, 1951. The Sales Tax Officer found that the assessee stocked the bamboo, timber etc. in his godowns at Lanjigorh and Rupra Road in Orissa, and then sold the goods to customers outside Orissa, the goods being despatched by train and delivered to those customers. A certificate was issued against the assessee for recovering the tax imposed.Against the orders of assessment the assessee moved the High Court by means of a writ petition. He contended that the sales took place outside Orissa and in any case the sales of the period after the coming into force of the Constitution could not be taxed by Orissa by reason of the Explanation to Article 286(1)(a) of the Constitution, as it then stood. The assessee also challenged the legality of the notification by which the Orissa Sales Tax Act, 1947, was extended to Kalahandi, which was formerly a feudatory State.Following its earlier decision in B. C. Patel v. Sales Tax Officer, Cuttack ((1955) I.L.R. 1955 Cuttack 267; 7 S.T.C. 221), the High Court held that the notification dated March 1, 1949, by which the relevant provisions of the Orissa Sales Tax Act, 1947, were extended to Kalahandi was invalid in law and consequently the respondent was not liable to sales tax for the pre-Constitution quarters, this is, till the quarter ending on December 31, 1949. For the subsequent quarters also the respondent could not be taxed by reason of Article 286 of the Constitution. Accordingly, the High Court allowed the petition, quashed the assessment orders and directed a refund of the fees paid by the respondent to the assessing authorities on appeal and revision.On behalf of the appellants it has been pointed out that the decision of the Orissa High Court in B. C. Patel v. Sales Tax Officer, Cuttack ((1955) I.L.R. 1955 Cuttack 267; 7 S.T.C. 221) was set aside on appeal by this Court (see Sales Tax Officer, Cuttack v. Messrs B. C. Patel and Co. ([1959] S.C.R. 520; 9 S.T.C. 467)). It has not been seriously disputed that on the decision of this Court the assessee was rightly assessed to sales tax for all the quarters prior to and ending on December 31, 1949.It is equally clear that for the post-Constitution quarters the assessee was not liable to be taxed, because admittedly the goods were delivered outside Orissa for consumption in the delivery State.As to the fees paid, the High Court followed its earlier decision in Chakobhai Ghelabhai ((1955) I.L.R. 1955 Cuttack 529; 7 S.T.C. 36). In Appeal No. 710 of 1957 in which we have pronounced judgment to-day (Since reported as State of Orissa v. Chakobhai Ghelabhai and Co. [1960] 11 S.T.C. 716), we have held that the fees realised under rule 59 of the Orissa Sales Tax Rules, 1947, are valid and the decision of the High Court to the contrary is wrong. | 1[ds]It has not been seriously disputed that on the decision of this Court the assessee was rightly assessed to sales tax for all the quarters prior to and ending on December 31, 1949.It is equally clear that for the post-Constitution quarters the assessee was not liable to be taxed, because admittedly the goods were delivered outside Orissa for consumption in the delivery State.As to the fees paid, the High Court followed its earlier decision in Chakobhai Ghelabhai ((1955) I.L.R. 1955 Cuttack 529; 7 S.T.C. 36). In Appeal No. 710 of 1957 in which we have pronounced judgment to-day (Since reported as State of Orissa v. Chakobhai Ghelabhai and Co. [1960] 11 S.T.C. 716), we have held that the fees realised under rule 59 of the Orissa Sales Tax Rules, 1947, are valid and the decision of the High Court to the contrary is wrong. | 1 | 656 | 169 | ### 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. K. DAS, J.This appeal on a certificate granted by the High Court of Orissa is from the judgment and order of the said High Court dated August 8, 1955. The State of Orissa and the Sales Tax Assessing Authorities are the appellants. The assessee is the respondent.The assessee is a forest contractor in Orissa and carried on the business of collecting bamboo, firewood, timber etc., from the forest of Kalahandi in Orissa. He was assessed to sales tax for eight quarters beginning from April, 1, 1949, and ending on March 31, 1951. The Sales Tax Officer found that the assessee stocked the bamboo, timber etc. in his godowns at Lanjigorh and Rupra Road in Orissa, and then sold the goods to customers outside Orissa, the goods being despatched by train and delivered to those customers. A certificate was issued against the assessee for recovering the tax imposed.Against the orders of assessment the assessee moved the High Court by means of a writ petition. He contended that the sales took place outside Orissa and in any case the sales of the period after the coming into force of the Constitution could not be taxed by Orissa by reason of the Explanation to Article 286(1)(a) of the Constitution, as it then stood. The assessee also challenged the legality of the notification by which the Orissa Sales Tax Act, 1947, was extended to Kalahandi, which was formerly a feudatory State.Following its earlier decision in B. C. Patel v. Sales Tax Officer, Cuttack ((1955) I.L.R. 1955 Cuttack 267; 7 S.T.C. 221), the High Court held that the notification dated March 1, 1949, by which the relevant provisions of the Orissa Sales Tax Act, 1947, were extended to Kalahandi was invalid in law and consequently the respondent was not liable to sales tax for the pre-Constitution quarters, this is, till the quarter ending on December 31, 1949. For the subsequent quarters also the respondent could not be taxed by reason of Article 286 of the Constitution. Accordingly, the High Court allowed the petition, quashed the assessment orders and directed a refund of the fees paid by the respondent to the assessing authorities on appeal and revision.On behalf of the appellants it has been pointed out that the decision of the Orissa High Court in B. C. Patel v. Sales Tax Officer, Cuttack ((1955) I.L.R. 1955 Cuttack 267; 7 S.T.C. 221) was set aside on appeal by this Court (see Sales Tax Officer, Cuttack v. Messrs B. C. Patel and Co. ([1959] S.C.R. 520; 9 S.T.C. 467)). It has not been seriously disputed that on the decision of this Court the assessee was rightly assessed to sales tax for all the quarters prior to and ending on December 31, 1949.It is equally clear that for the post-Constitution quarters the assessee was not liable to be taxed, because admittedly the goods were delivered outside Orissa for consumption in the delivery State.As to the fees paid, the High Court followed its earlier decision in Chakobhai Ghelabhai ((1955) I.L.R. 1955 Cuttack 529; 7 S.T.C. 36). In Appeal No. 710 of 1957 in which we have pronounced judgment to-day (Since reported as State of Orissa v. Chakobhai Ghelabhai and Co. [1960] 11 S.T.C. 716), we have held that the fees realised under rule 59 of the Orissa Sales Tax Rules, 1947, are valid and the decision of the High Court to the contrary is wrong.
### Response:
1
### Explanation:
It has not been seriously disputed that on the decision of this Court the assessee was rightly assessed to sales tax for all the quarters prior to and ending on December 31, 1949.It is equally clear that for the post-Constitution quarters the assessee was not liable to be taxed, because admittedly the goods were delivered outside Orissa for consumption in the delivery State.As to the fees paid, the High Court followed its earlier decision in Chakobhai Ghelabhai ((1955) I.L.R. 1955 Cuttack 529; 7 S.T.C. 36). In Appeal No. 710 of 1957 in which we have pronounced judgment to-day (Since reported as State of Orissa v. Chakobhai Ghelabhai and Co. [1960] 11 S.T.C. 716), we have held that the fees realised under rule 59 of the Orissa Sales Tax Rules, 1947, are valid and the decision of the High Court to the contrary is wrong.
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RAMJHAN GANI PALANI Vs. NATIONAL INVESTIGATING AGENCY AND ANR | there is more than a prima facie case made out against him, pointing to his involvement in the offence. 5. Mr. R. Basant, learned Senior Counsel appearing for the petitioner has argued that the High Court has gravely erred in denying the relief of bail to the petitioner and the entire case of the prosecution is based on suspicion; that the petitioner is a victim of unhappy coincidents of being at the wrong place at the wrong time; that except for the petitioner, none of the twelve crew members on the boat were arrested or charged as accused persons; that the petitioner has clean antecedents and there is no likelihood of his committing any overt act if granted bail. 6. Much emphasis has been laid by learned Senior Advocate appearing for the petitioner on the fact that merely because the petitioner had replied to the communication Mohammed on the VHF Channel with the words Ramzan haan bolo, cannot be treated as sufficient to reject his bail application, more so, when the petitioners name happens to be Ramjhan Gani Palani. Therefore, simply because the petitioner had replied on Channel No.8 to the radio operator who had transmitted the aforesaid message on VHF Channels No.8 and 16, can hardly be treated as a ground to substantiate the case of the prosecution. Reference was also made to the invoice for a sum of 3,47,325/- (Rupees Three lakhs Rs. forty- seven thousand three hundred twenty-five only), being the value of the seven fish sold by the petitioner after the boat was released. It was contended that out of the seven fish, five fish were Ghol fish colloquially known as sea gold weighing 104 kg, which are a rare catch and very expensive. The price of this fish is stated to be pegged at around 1400/- Rs. (Rupee Fourteen Hundred only) per kg in the market. Claiming that even on an earlier occasion, the petitioner had gone on the high seas looking for Ghol fish that was caught and sold for a handsome amount which was enough to demonstrate that he was neither involved in illegal trade of narcotics, nor was he tipped to approach the Pakistani Flag ship, detained by the authorities. Lastly, it was contended that merely because the boat and the crew members were found to be neat and clean, could not be a ground to deny the relief of bail to the petitioner. 7. Mr. K.M. Nataraj, learned Additional Solicitor General for the respondent No.1/NIA vehemently opposed the present petition and submitted that after the six Pakistani nationals found on board of the Pakistani fishing vessel were arrested on 24.05.2019, the petitioner was arrested two days later on 26.5.2019. On 15.11.2019, a complaint was registered under the provisions of the NDPS Act, 1985, at the instance of DRI before the Special Judge for NDPS Cases at Bhuj, Gujarat against all the seven arrested accused including the petitioner. As per the said complaint, the petitioner was charged with offences punishable under Sections 28, 29 and 30 of the NDPS Act for which the punishment prescribed is imprisonment for a minimum period of ten years, which can extend up to a maximum period of twenty years. Subsequently, on the orders of the Ministry of Home Affairs, Government of India, further investigation of the case was transferred to the NIA and the case was reregistered on 26.05.2020 at NIA Police Station, New Delhi vide RC No.24/2020/NIA/DLI. 8. Learned counsel for the respondent No.1/NIA stated that on 18.12.2020, NIA had filed a charge sheet before the NIA Special Court, Ahmedabad against the 6 arrested Pakistani nationals and the petitioner herein for offences related to the attempted smuggling of the narcotic drug, Heroin. He pointed out that as per the charge sheet, nine Pakistani nationals who are absconding, have been shown as wanted accused and their role in the matter is still under investigation. As on date, charges have been framed against the petitioner and the six arrested Pakistani nationals. It was urged that the petitioner is under an erroneous assumption that the case against him is a routine matter while over-looking the fact that the present case relates to organized smuggling of narcotic drugs, for sale in India and for generating funds meant for promoting terrorist activities, which is a serious offence and a valid ground for denying him the relief of bail. 9. We have perused the impugned order and carefully considering the arguments advanced by learned counsel for the parties, duly recorded in paras 8 and 9 of the impugned judgment and are of the prima facie view that there is sufficient material on record to deny the discretionary relief of bail to the petitioner. Much is sought to be made of the five Ghol fish netted by the petitioner and his crew members over five days of remaining on the high seas by referring to the high market value of the prize catch. The petitioner would be entitled to justify his presence in the fishing boat, at the scene of crime which is sought to be described as a sheer coincidence during the trial. The explanation offered by the petitioner of having responded to the call Mohammed-MohammedRamzan-Ramzan on Channel No.8, instead of Channel No.16 which is the specifically earmarked channel for communication with fishermen and for Ship-to-Ship contact, would also be available to him at that stage. But at the threshold, this appears to be a case where the petitioner has been fishing in troubled waters and as per the respondent No.1/NIA, has got caught in his own net. 10. Records reveal that the chargesheet has been filed by the respondent/NIA on 18.12.2020. As per the said chargesheet, nine Pakistani nationals are still absconding. Further, investigation in the case is still pending. The petitioner has been chargesheeted for a serious offence where the minimum punishment prescribed is of ten years. We are, therefore, not inclined to exercise our discretion in favour of the petitioner by interfering with the impugned order, at present. | 0[ds]9. We have perused the impugned order and carefully considering the arguments advanced by learned counsel for the parties, duly recorded in paras 8 and 9 of the impugned judgment and are of the prima facie view that there is sufficient material on record to deny the discretionary relief of bail to the petitioner. Much is sought to be made of the five Ghol fish netted by the petitioner and his crew members over five days of remaining on the high seas by referring to the high market value of the prize catch. The petitioner would be entitled to justify his presence in the fishing boat, at the scene of crime which is sought to be described as a sheer coincidence during the trial. The explanation offered by the petitioner of having responded to the call Mohammed-MohammedRamzan-Ramzan on Channel No.8, instead of Channel No.16 which is the specifically earmarked channel for communication with fishermen and for Ship-to-Ship contact, would also be available to him at that stage. But at the threshold, this appears to be a case where the petitioner has been fishing in troubled waters and as per the respondent No.1/NIA, has got caught in his own net.10. Records reveal that the chargesheet has been filed by the respondent/NIA on 18.12.2020. As per the said chargesheet, nine Pakistani nationals are still absconding. Further, investigation in the case is still pending. The petitioner has been chargesheeted for a serious offence where the minimum punishment prescribed is of ten years. We are, therefore, not inclined to exercise our discretion in favour of the petitioner by interfering with the impugned order, at present. | 0 | 1,887 | 297 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
there is more than a prima facie case made out against him, pointing to his involvement in the offence. 5. Mr. R. Basant, learned Senior Counsel appearing for the petitioner has argued that the High Court has gravely erred in denying the relief of bail to the petitioner and the entire case of the prosecution is based on suspicion; that the petitioner is a victim of unhappy coincidents of being at the wrong place at the wrong time; that except for the petitioner, none of the twelve crew members on the boat were arrested or charged as accused persons; that the petitioner has clean antecedents and there is no likelihood of his committing any overt act if granted bail. 6. Much emphasis has been laid by learned Senior Advocate appearing for the petitioner on the fact that merely because the petitioner had replied to the communication Mohammed on the VHF Channel with the words Ramzan haan bolo, cannot be treated as sufficient to reject his bail application, more so, when the petitioners name happens to be Ramjhan Gani Palani. Therefore, simply because the petitioner had replied on Channel No.8 to the radio operator who had transmitted the aforesaid message on VHF Channels No.8 and 16, can hardly be treated as a ground to substantiate the case of the prosecution. Reference was also made to the invoice for a sum of 3,47,325/- (Rupees Three lakhs Rs. forty- seven thousand three hundred twenty-five only), being the value of the seven fish sold by the petitioner after the boat was released. It was contended that out of the seven fish, five fish were Ghol fish colloquially known as sea gold weighing 104 kg, which are a rare catch and very expensive. The price of this fish is stated to be pegged at around 1400/- Rs. (Rupee Fourteen Hundred only) per kg in the market. Claiming that even on an earlier occasion, the petitioner had gone on the high seas looking for Ghol fish that was caught and sold for a handsome amount which was enough to demonstrate that he was neither involved in illegal trade of narcotics, nor was he tipped to approach the Pakistani Flag ship, detained by the authorities. Lastly, it was contended that merely because the boat and the crew members were found to be neat and clean, could not be a ground to deny the relief of bail to the petitioner. 7. Mr. K.M. Nataraj, learned Additional Solicitor General for the respondent No.1/NIA vehemently opposed the present petition and submitted that after the six Pakistani nationals found on board of the Pakistani fishing vessel were arrested on 24.05.2019, the petitioner was arrested two days later on 26.5.2019. On 15.11.2019, a complaint was registered under the provisions of the NDPS Act, 1985, at the instance of DRI before the Special Judge for NDPS Cases at Bhuj, Gujarat against all the seven arrested accused including the petitioner. As per the said complaint, the petitioner was charged with offences punishable under Sections 28, 29 and 30 of the NDPS Act for which the punishment prescribed is imprisonment for a minimum period of ten years, which can extend up to a maximum period of twenty years. Subsequently, on the orders of the Ministry of Home Affairs, Government of India, further investigation of the case was transferred to the NIA and the case was reregistered on 26.05.2020 at NIA Police Station, New Delhi vide RC No.24/2020/NIA/DLI. 8. Learned counsel for the respondent No.1/NIA stated that on 18.12.2020, NIA had filed a charge sheet before the NIA Special Court, Ahmedabad against the 6 arrested Pakistani nationals and the petitioner herein for offences related to the attempted smuggling of the narcotic drug, Heroin. He pointed out that as per the charge sheet, nine Pakistani nationals who are absconding, have been shown as wanted accused and their role in the matter is still under investigation. As on date, charges have been framed against the petitioner and the six arrested Pakistani nationals. It was urged that the petitioner is under an erroneous assumption that the case against him is a routine matter while over-looking the fact that the present case relates to organized smuggling of narcotic drugs, for sale in India and for generating funds meant for promoting terrorist activities, which is a serious offence and a valid ground for denying him the relief of bail. 9. We have perused the impugned order and carefully considering the arguments advanced by learned counsel for the parties, duly recorded in paras 8 and 9 of the impugned judgment and are of the prima facie view that there is sufficient material on record to deny the discretionary relief of bail to the petitioner. Much is sought to be made of the five Ghol fish netted by the petitioner and his crew members over five days of remaining on the high seas by referring to the high market value of the prize catch. The petitioner would be entitled to justify his presence in the fishing boat, at the scene of crime which is sought to be described as a sheer coincidence during the trial. The explanation offered by the petitioner of having responded to the call Mohammed-MohammedRamzan-Ramzan on Channel No.8, instead of Channel No.16 which is the specifically earmarked channel for communication with fishermen and for Ship-to-Ship contact, would also be available to him at that stage. But at the threshold, this appears to be a case where the petitioner has been fishing in troubled waters and as per the respondent No.1/NIA, has got caught in his own net. 10. Records reveal that the chargesheet has been filed by the respondent/NIA on 18.12.2020. As per the said chargesheet, nine Pakistani nationals are still absconding. Further, investigation in the case is still pending. The petitioner has been chargesheeted for a serious offence where the minimum punishment prescribed is of ten years. We are, therefore, not inclined to exercise our discretion in favour of the petitioner by interfering with the impugned order, at present.
### Response:
0
### Explanation:
9. We have perused the impugned order and carefully considering the arguments advanced by learned counsel for the parties, duly recorded in paras 8 and 9 of the impugned judgment and are of the prima facie view that there is sufficient material on record to deny the discretionary relief of bail to the petitioner. Much is sought to be made of the five Ghol fish netted by the petitioner and his crew members over five days of remaining on the high seas by referring to the high market value of the prize catch. The petitioner would be entitled to justify his presence in the fishing boat, at the scene of crime which is sought to be described as a sheer coincidence during the trial. The explanation offered by the petitioner of having responded to the call Mohammed-MohammedRamzan-Ramzan on Channel No.8, instead of Channel No.16 which is the specifically earmarked channel for communication with fishermen and for Ship-to-Ship contact, would also be available to him at that stage. But at the threshold, this appears to be a case where the petitioner has been fishing in troubled waters and as per the respondent No.1/NIA, has got caught in his own net.10. Records reveal that the chargesheet has been filed by the respondent/NIA on 18.12.2020. As per the said chargesheet, nine Pakistani nationals are still absconding. Further, investigation in the case is still pending. The petitioner has been chargesheeted for a serious offence where the minimum punishment prescribed is of ten years. We are, therefore, not inclined to exercise our discretion in favour of the petitioner by interfering with the impugned order, at present.
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Hindustan Construction Vs. Governor Of Orissa | parties to the arbitration agreement consent to such enlargement of time. In this case precisely it so happened." According to us, the High Court over-looked the provision of sub-section (2) of Section 28. After the Special Tribunal had entered into reference, by consent of the parties, the time for making the award could have been extended. In the present case it is not in dispute that the appellant and the respondent-State both had agreed for extension of the period for making the award after the Special Tribunal had entered into reference. As such the award cannot be held to be invalid on that ground.10. The third ground for declaring the award invalid by the High Court is that the Special Tribunal had not considered important documents which were on the record of the arbitration proceeding. In this connection our attention was drawn to a letter dated 28-8-1982 addressed by the appellant Company to the Executive Engineer saying that they were applying for extension of time for completion of works up to 30-6-1984 because of valid reasons given in the prescribed pro forma. In that letter, it was also mentioned that during the discussion between the Dy. General Manager of the Company with the Government Officials at Bhubaneshwar on 20-2-1982, it had been agreed to consider the extension of time up to 30-6-1984. In the pro forma attached to the said letter, again the same thing was reiterated. It was said in the said pro forma on behalf of the appellant-Company that they had undertaken that they shall not claim any compensation or extra rate for executing the work beyond the stipulated date except whatever was permissible as per the contract. It was urged that the letter and the pro forma aforesaid was not considered by the Special Tribunal while making order in respect of escalations. According to the respondent-State as the extension was given at the request of the appellant, they were not entitled for any escalation charges. Reference was also make on behalf of the respondents to the supplementary agreement, especially clauses VI and VII thereof. In Clause VI, it has been stated that any extra arrangement if required to be made by the Company to complete the work as per the above agreed schedule "shall be done by them without liability to the Government of Orissa". In Clause VII of the said supplementary agreement, it has been said that Government of Orissa shall consider to extend the date of completion of the work up to 30-6-1984 "without liability to the both contracting parties". On basis of the aforesaid clauses, it was urged on behalf of the respondents, which has been accepted by the High Court, that the State Government was not bound to pay any charges under the head escalation. On behalf of the appellant, it was demonstrated that the aforesaid no liability clause in the supplementary agreement related to Clause 13 of the original agreement under the heading Compensation for delay in works. It says that the contractors rates are based on the assumption that the contract will be completed by 30th September, 1982 and the contractor shall not claim "any compensation or revision of rates if the work gets delayed up to 6 months beyond the contract completion time i.e. 30-9-1982". It further says that if the contract completion date gets delayed beyond 31-3-1983 for the reasons not attributable to the contractor, the rates shall be revised for the unfinished work as on 31-3-1983 by Engineer-in-charge in consultation with the contractor, subject to the approval of the Government. When in the supplementary agreement in clauses VI and VII it was said that extra arrangement for completion of the work as per the agreed schedule shall be done by the Contractor without liability to the Government of Orissa or without liability to both contracting parties, it was with reference to the aforesaid clause 13 which stipulated compensation for delay in works. According to the appellant, the Special Tribunal has awarded extra amount in respect of escalations of labour charges which had been stipulated in Para 12.1 of the agreement saying that for the increase in the cost of labour the Contractor shall be paid extra as per the formula given in the said clause. In other words, the escalation charges allowed to the appellant by the Special Tribunal is in respect of escalation of the labour charges and that was not regulated by Clauses VI and VII of the supplementary agreement. The learned counsel for the appellant pointed out from the award that the Special Tribunal was conscious of Clause 13 relating to compensation for delay in works and labour escalations under Clause 12.1 of the agreement. It has been said in the award that the competent authority by a letter dated 16-10-1984, addressed to the appellant, had categorically assured that the appellant shall be paid the escalation charges under Clauses 12.1, 12.2 and 12.3 of the special conditions. The Tribunal has also held that the said authority was competent to give such assurance on behalf of the State apart from the fact that under Clauses 12.1, 12.2 and 12.3 of the special conditions, the appellant was entitled to the escalation charges. In this background, it cannot be said that there is any error apparent on the face of the award which required an interference by the High Court. It is well known that the Court while considering the question whether the award should be set aside, does not examine that question as an Appellate Court. While exercising the said power, the Court cannot reappreciate all the materials on the record for the purpose of recording a finding whether in the facts and circumstances of a particular case the award in question could have been made. Such award can be set aside on any of the grounds specified in Section 30 of the Act. According to us, no ground has been made out on behalf of respondents to set aside the award holding it to be invalid. | 1[ds]The High Court was in error in proceeding on the assumption that the State Government had exercised the power of transfer from the Arbitration Tribunal to the Special Tribunal in exercise of the power under proviso to sub-section (7) of Section 41A of the Act. In the Notification dated 6-5-1988, it has been clearly stated that a dispute had arisen between the appellant and the State Government involving rupees more than one crore and the Arbitration Tribunal has also given a direction to appoint Special Tribunal; because of which "in exercise of the powers conferred by the proviso to sub-section (1) of Section 41A of the Arbitration Act, 1948 (X of 1948) as amended by the Arbitration (Orissa Amendment) Act, 1984 (Orissa Act 17 of 1984), the State Government do hereby constitute a Special Arbitration Tribunal comprising Mr. Justice B. Behra, retired Justice, Orissa High Court to settle the said disputes.............". It may be mentioned that the Arbitration Act was further amended by Arbitration (Orissa Amendment) Act, 1984 (Orissa Act 17 of 1984) which has been referred to in the aforesaid Notification of the State Government. But we are not concerned in the present appeal in respect of the said amendment and as such details thereof need not be mentioned.7. According to us, the Notification dated 6-5-1988 constituting the Special Tribunal and referring the dispute to such Special Tribunal cannot be held to be one in exercise of power under proviso to sub-section (7) of Section 41A. The said notification of reference to Special Tribunal is within the scope of proviso to sub-section (1) of Section 41A. The State Government exercised the said power taking into consideration all the facts and circumstances of the case including the direction of the Arbitration Tribunal because it involved a claim of Rs. one crore and above. It is an admitted position that the State Government had not at any stage questioned before the Special Tribunal the jurisdiction thereof to adjudicate the said dispute. The State Government itself by a statutory notification having constituted the Special Tribunal and referred the dispute to said Special Tribunal, we fail to appreciate as to how for the first time this stand was taken before the High Court by the State Government that the Special Tribunal had no jurisdiction to adjudicate the dispute or to make the award. According to us, in the facts and circumstances of the case, the High Court ought not to have permitted the State Government to raise such a contention after it had submitted to the jurisdiction of the Special Tribunal merely because the award went against it. It hardly behoves the State Government to question the jurisdiction of the Special Tribunal at such a belated stage merely because the award was not to its liking. The State Government cannot be permitted to behave like an ordinary dishonest litigant who takes an off chance hoping to succeed and if the outcome is not to his liking to turn back and question the Special Tribunals jurisdiction. The High Court should not have permitted such a somersault. We, therefore, set aside the High Courts finding on this issue for the above reasons.8. So far the question of extension of time for making the award is concerned, it is an admitted position that a memorandum was filed on behalf of both the parties including the State Government of 28-8-1988 for extension of the period for making the award by four months from the date of the expiry of the time onto us, the High Court over-looked the provision of sub-section (2) of Section 28. After the Special Tribunal had entered into reference, by consent of the parties, the time for making the award could have been extended. In the present case it is not in dispute that the appellant and the respondent-State both had agreed for extension of the period for making the award after the Special Tribunal had entered into reference. As such the award cannot be held to be invalid on that ground.10. The third ground for declaring the award invalid by the High Court is that the Special Tribunal had not considered important documents which were on the record of the arbitration proceeding. In this connection our attention was drawn to a letter dated 28-8-1982 addressed by the appellant Company to the Executive Engineer saying that they were applying for extension of time for completion of works up to 30-6-1984 because of valid reasons given in the prescribed pro forma. In that letter, it was also mentioned that during the discussion between the Dy. General Manager of the Company with the Government Officials at Bhubaneshwar on 20-2-1982, it had been agreed to consider the extension of time up to 30-6-1984. In the pro forma attached to the said letter, again the same thing was reiterated. It was said in the said pro forma on behalf of the appellant-Company that they had undertaken that they shall not claim any compensation or extra rate for executing the work beyond the stipulated date except whatever was permissible as per the contract. It was urged that the letter and the pro forma aforesaid was not considered by the Special Tribunal while making order in respect of escalations. According to the respondent-State as the extension was given at the request of the appellant, they were not entitled for any escalation charges. Reference was also make on behalf of the respondents to the supplementary agreement, especially clauses VI and VII thereof. In Clause VI, it has been stated that any extra arrangement if required to be made by the Company to complete the work as per the above agreed schedule "shall be done by them without liability to the Government of Orissa". In Clause VII of the said supplementary agreement, it has been said that Government of Orissa shall consider to extend the date of completion of the work up to 30-6-1984 "without liability to the both contracting parties". On basis of the aforesaid clauses, it was urged on behalf of the respondents, which has been accepted by the High Court, that the State Government was not bound to pay any charges under the head escalation. On behalf of the appellant, it was demonstrated that the aforesaid no liability clause in the supplementary agreement related to Clause 13 of the original agreement under the heading Compensation for delay in works. It says that the contractors rates are based on the assumption that the contract will be completed by 30th September, 1982 and the contractor shall not claim "any compensation or revision of rates if the work gets delayed up to 6 months beyond the contract completion time i.e. 30-9-1982". It further says that if the contract completion date gets delayed beyond 31-3-1983 for the reasons not attributable to the contractor, the rates shall be revised for the unfinished work as on 31-3-1983 by Engineer-in-charge in consultation with the contractor, subject to the approval of the Government. When in the supplementary agreement in clauses VI and VII it was said that extra arrangement for completion of the work as per the agreed schedule shall be done by the Contractor without liability to the Government of Orissa or without liability to both contracting parties, it was with reference to the aforesaid clause 13 which stipulated compensation for delay in works. According to the appellant, the Special Tribunal has awarded extra amount in respect of escalations of labour charges which had been stipulated in Para 12.1 of the agreement saying that for the increase in the cost of labour the Contractor shall be paid extra as per the formula given in the said clause. In other words, the escalation charges allowed to the appellant by the Special Tribunal is in respect of escalation of the labour charges and that was not regulated by Clauses VI and VII of the supplementary agreement. The learned counsel for the appellant pointed out from the award that the Special Tribunal was conscious of Clause 13 relating to compensation for delay in works and labour escalations under Clause 12.1 of the agreement. It has been said in the award that the competent authority by a letter dated 16-10-1984, addressed to the appellant, had categorically assured that the appellant shall be paid the escalation charges under Clauses 12.1, 12.2 and 12.3 of the special conditions. The Tribunal has also held that the said authority was competent to give such assurance on behalf of the State apart from the fact that under Clauses 12.1, 12.2 and 12.3 of the special conditions, the appellant was entitled to the escalation charges. In this background, it cannot be said that there is any error apparent on the face of the award which required an interference by the High Court. It is well known that the Court while considering the question whether the award should be set aside, does not examine that question as an Appellate Court. While exercising the said power, the Court cannot reappreciate all the materials on the record for the purpose of recording a finding whether in the facts and circumstances of a particular case the award in question could have been made. Such award can be set aside on any of the grounds specified in Section 30 of the Act. According to us, no ground has been made out on behalf of respondents to set aside the award holding it to be invalid. | 1 | 4,559 | 1,693 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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parties to the arbitration agreement consent to such enlargement of time. In this case precisely it so happened." According to us, the High Court over-looked the provision of sub-section (2) of Section 28. After the Special Tribunal had entered into reference, by consent of the parties, the time for making the award could have been extended. In the present case it is not in dispute that the appellant and the respondent-State both had agreed for extension of the period for making the award after the Special Tribunal had entered into reference. As such the award cannot be held to be invalid on that ground.10. The third ground for declaring the award invalid by the High Court is that the Special Tribunal had not considered important documents which were on the record of the arbitration proceeding. In this connection our attention was drawn to a letter dated 28-8-1982 addressed by the appellant Company to the Executive Engineer saying that they were applying for extension of time for completion of works up to 30-6-1984 because of valid reasons given in the prescribed pro forma. In that letter, it was also mentioned that during the discussion between the Dy. General Manager of the Company with the Government Officials at Bhubaneshwar on 20-2-1982, it had been agreed to consider the extension of time up to 30-6-1984. In the pro forma attached to the said letter, again the same thing was reiterated. It was said in the said pro forma on behalf of the appellant-Company that they had undertaken that they shall not claim any compensation or extra rate for executing the work beyond the stipulated date except whatever was permissible as per the contract. It was urged that the letter and the pro forma aforesaid was not considered by the Special Tribunal while making order in respect of escalations. According to the respondent-State as the extension was given at the request of the appellant, they were not entitled for any escalation charges. Reference was also make on behalf of the respondents to the supplementary agreement, especially clauses VI and VII thereof. In Clause VI, it has been stated that any extra arrangement if required to be made by the Company to complete the work as per the above agreed schedule "shall be done by them without liability to the Government of Orissa". In Clause VII of the said supplementary agreement, it has been said that Government of Orissa shall consider to extend the date of completion of the work up to 30-6-1984 "without liability to the both contracting parties". On basis of the aforesaid clauses, it was urged on behalf of the respondents, which has been accepted by the High Court, that the State Government was not bound to pay any charges under the head escalation. On behalf of the appellant, it was demonstrated that the aforesaid no liability clause in the supplementary agreement related to Clause 13 of the original agreement under the heading Compensation for delay in works. It says that the contractors rates are based on the assumption that the contract will be completed by 30th September, 1982 and the contractor shall not claim "any compensation or revision of rates if the work gets delayed up to 6 months beyond the contract completion time i.e. 30-9-1982". It further says that if the contract completion date gets delayed beyond 31-3-1983 for the reasons not attributable to the contractor, the rates shall be revised for the unfinished work as on 31-3-1983 by Engineer-in-charge in consultation with the contractor, subject to the approval of the Government. When in the supplementary agreement in clauses VI and VII it was said that extra arrangement for completion of the work as per the agreed schedule shall be done by the Contractor without liability to the Government of Orissa or without liability to both contracting parties, it was with reference to the aforesaid clause 13 which stipulated compensation for delay in works. According to the appellant, the Special Tribunal has awarded extra amount in respect of escalations of labour charges which had been stipulated in Para 12.1 of the agreement saying that for the increase in the cost of labour the Contractor shall be paid extra as per the formula given in the said clause. In other words, the escalation charges allowed to the appellant by the Special Tribunal is in respect of escalation of the labour charges and that was not regulated by Clauses VI and VII of the supplementary agreement. The learned counsel for the appellant pointed out from the award that the Special Tribunal was conscious of Clause 13 relating to compensation for delay in works and labour escalations under Clause 12.1 of the agreement. It has been said in the award that the competent authority by a letter dated 16-10-1984, addressed to the appellant, had categorically assured that the appellant shall be paid the escalation charges under Clauses 12.1, 12.2 and 12.3 of the special conditions. The Tribunal has also held that the said authority was competent to give such assurance on behalf of the State apart from the fact that under Clauses 12.1, 12.2 and 12.3 of the special conditions, the appellant was entitled to the escalation charges. In this background, it cannot be said that there is any error apparent on the face of the award which required an interference by the High Court. It is well known that the Court while considering the question whether the award should be set aside, does not examine that question as an Appellate Court. While exercising the said power, the Court cannot reappreciate all the materials on the record for the purpose of recording a finding whether in the facts and circumstances of a particular case the award in question could have been made. Such award can be set aside on any of the grounds specified in Section 30 of the Act. According to us, no ground has been made out on behalf of respondents to set aside the award holding it to be invalid.
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of the period for making the award by four months from the date of the expiry of the time onto us, the High Court over-looked the provision of sub-section (2) of Section 28. After the Special Tribunal had entered into reference, by consent of the parties, the time for making the award could have been extended. In the present case it is not in dispute that the appellant and the respondent-State both had agreed for extension of the period for making the award after the Special Tribunal had entered into reference. As such the award cannot be held to be invalid on that ground.10. The third ground for declaring the award invalid by the High Court is that the Special Tribunal had not considered important documents which were on the record of the arbitration proceeding. In this connection our attention was drawn to a letter dated 28-8-1982 addressed by the appellant Company to the Executive Engineer saying that they were applying for extension of time for completion of works up to 30-6-1984 because of valid reasons given in the prescribed pro forma. In that letter, it was also mentioned that during the discussion between the Dy. General Manager of the Company with the Government Officials at Bhubaneshwar on 20-2-1982, it had been agreed to consider the extension of time up to 30-6-1984. In the pro forma attached to the said letter, again the same thing was reiterated. It was said in the said pro forma on behalf of the appellant-Company that they had undertaken that they shall not claim any compensation or extra rate for executing the work beyond the stipulated date except whatever was permissible as per the contract. It was urged that the letter and the pro forma aforesaid was not considered by the Special Tribunal while making order in respect of escalations. According to the respondent-State as the extension was given at the request of the appellant, they were not entitled for any escalation charges. Reference was also make on behalf of the respondents to the supplementary agreement, especially clauses VI and VII thereof. In Clause VI, it has been stated that any extra arrangement if required to be made by the Company to complete the work as per the above agreed schedule "shall be done by them without liability to the Government of Orissa". In Clause VII of the said supplementary agreement, it has been said that Government of Orissa shall consider to extend the date of completion of the work up to 30-6-1984 "without liability to the both contracting parties". On basis of the aforesaid clauses, it was urged on behalf of the respondents, which has been accepted by the High Court, that the State Government was not bound to pay any charges under the head escalation. On behalf of the appellant, it was demonstrated that the aforesaid no liability clause in the supplementary agreement related to Clause 13 of the original agreement under the heading Compensation for delay in works. It says that the contractors rates are based on the assumption that the contract will be completed by 30th September, 1982 and the contractor shall not claim "any compensation or revision of rates if the work gets delayed up to 6 months beyond the contract completion time i.e. 30-9-1982". It further says that if the contract completion date gets delayed beyond 31-3-1983 for the reasons not attributable to the contractor, the rates shall be revised for the unfinished work as on 31-3-1983 by Engineer-in-charge in consultation with the contractor, subject to the approval of the Government. When in the supplementary agreement in clauses VI and VII it was said that extra arrangement for completion of the work as per the agreed schedule shall be done by the Contractor without liability to the Government of Orissa or without liability to both contracting parties, it was with reference to the aforesaid clause 13 which stipulated compensation for delay in works. According to the appellant, the Special Tribunal has awarded extra amount in respect of escalations of labour charges which had been stipulated in Para 12.1 of the agreement saying that for the increase in the cost of labour the Contractor shall be paid extra as per the formula given in the said clause. In other words, the escalation charges allowed to the appellant by the Special Tribunal is in respect of escalation of the labour charges and that was not regulated by Clauses VI and VII of the supplementary agreement. The learned counsel for the appellant pointed out from the award that the Special Tribunal was conscious of Clause 13 relating to compensation for delay in works and labour escalations under Clause 12.1 of the agreement. It has been said in the award that the competent authority by a letter dated 16-10-1984, addressed to the appellant, had categorically assured that the appellant shall be paid the escalation charges under Clauses 12.1, 12.2 and 12.3 of the special conditions. The Tribunal has also held that the said authority was competent to give such assurance on behalf of the State apart from the fact that under Clauses 12.1, 12.2 and 12.3 of the special conditions, the appellant was entitled to the escalation charges. In this background, it cannot be said that there is any error apparent on the face of the award which required an interference by the High Court. It is well known that the Court while considering the question whether the award should be set aside, does not examine that question as an Appellate Court. While exercising the said power, the Court cannot reappreciate all the materials on the record for the purpose of recording a finding whether in the facts and circumstances of a particular case the award in question could have been made. Such award can be set aside on any of the grounds specified in Section 30 of the Act. According to us, no ground has been made out on behalf of respondents to set aside the award holding it to be invalid.
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Niloufer Irani & Others Vs. State of Maharashtra & Another | services. However, the committee which has been constituted was only an eyewash and against all the rules of natural justice. Vishaka guidelines contemplate committee on a complaint by an employee and not by an ex-employee. Considering the fact that inspite of bringing the instances of sexual harassment to the notice of the petitioners, they had failed and refused to initiate any action in the matter, they have clearly breached the guidelines issued by the Honble Supreme Court in Vishakas case. Being so, it is the case of the respondent No.2 that there is no case made out for quashing the FIR.7. The undisputed facts which are revealed in the matter are that the Respondent No.2 was employed as a Director with the said Company for a period of 14 months from September, 2005 to November, 2006. The services of the Respondent No.2 came to be terminated on 30th November, 2006 consequent to the opinion expressed by her superior against her in view of certain allegations made against the superior. It was only thereafter and as late as on 2nd April, 2007 that the Respondent No.2 addressed a letter to the company making various allegations of sexual harassment against the three persons viz. Vikram Utamsingh, Abizer Diwanji and Aneesh Maloo. Undisputedly, thereafter the committee was constituted to inquire into the allegation of harassment, however, the Respondent No.2 has not participated in the inquiry. There is no allegation of sexual harassment against any of the petitioners.8. In the background of above undisputed facts, if one peruses the impugned FIR, it is apparent that apart from failure on the part of the petitioners to take immediate cognizance of the complaint regarding sexual harassment of the said three persons to the Respondent No.2, there is no other allegation against any of the petitioners.9. Undoubtedly, the Apex Court in Vishaka & Ors. v. State of Rajasthan & Ors., reported in (1997)6 SCC 241 had clearly directed that there should be complaint mechanism and complaint committee in its committee to inquire into the allegation of any sexual harassment to a female employee in a company. Equally it is true that such direction would apply to the cases between employer and employee and not in relation to an ex-employee.10. Neither the FIR nor the affidavit-in-reply filed on behalf of the Respondent No.2 discloses any written complaint having been made to the petitioners while the Respondent No.2 was in employment of the said company i.e. during the period from September, 2005 to November, 2006 except E-mail stated to have sent on 2nd October, 2006 expressing her offer to resign on the issue of sexual harassment. 11. The facts placed on record therefore disclose that there was no complaint as such filed by the Respondent No.2 with the petitioners or the company in which she was employed making allegation of sexual harassment which would have compelled the company to constitute a committee and refer the matter to the said committee during the period while the Respondent No.2 was in employment of the company.12. In any case, once it is not in dispute that such committee was constituted even after cessation of Respondent No.2 in the employment of the company pursuant to the complaint made by her in that regard, but it was the Respondent No.2 herself who refused to participate in the inquiry, it cannot be said that there is any case for criminal prosecution against the petitioners. 13. Section 354 of the Indian Penal Code provides punishment for assault or criminal force used against a woman with intent to outrage her modesty. There are no allegations of any assault having been made or criminal force having been used by any of the petitioners against the respondent No.2 either with the intent to outrage her modesty or otherwise. 14. Section 509 of IPC provides punishment for use of word or making of gesture or any act intended to insult the modesty of a woman. No such allegation was found against any of the petitioners in the FIR.15. Section 500 of IPC relates to punishment for defamation. The facts alleged in the complaint nowhere reveal any act on the part of any of the petitioners, which could constitute an act of criminal intimidation punishable under Section 506 of IPC. 16. Section 188 of IPC provides punishment for disobedience to orders promulgated by public servant. By no stretch of imagination, the Supreme Court can be said to be a public servant and for the same reason, the directions issued by the Apex Court in Vishakas (supra) cannot be construed to be directions by a public servant. Undoubtedly, the guidelines issued thereunder are binding and are to be strictly observed by the companies, failing which, appropriate action can be taken against a defaulter. 17. Considering the facts alleged in the complaint, which has been recorded as the FIR, it is apparent that nowhere it discloses any cognizable offence as such against any of the petitioners. Even as far as the directions in Vishakas case (supra) are concerned, there appears genuine attempt on the part of the company to enforce the same. However, no fruitful result could yield from the inquiry by the committee on account of non-cooperation by the Respondent No.2. In any case, non-compliance of the directions in that regard is essentially and primarily to be against the company and the Directors who are responsible for non-compliance thereof. However, the said issue does not arise in the case in hand as we do not find any such failure on the part of the company to comply with such directions in the absence of proper complaint being filed during her service tenure. Mere sending of an E-mail offering desire to resign on account of allegation of sexual harassment made by her and probably action on the part of the company against her, that itself would not lead to a conclusion about failure on the part of the company to comply with the directions issued by the Apex Court in Vishakas case (supra). | 1[ds]7. The undisputed facts which are revealed in the matter are that the Respondent No.2 was employed as a Director with the said Company for a period of 14 months from September, 2005 to November, 2006. The services of the Respondent No.2 came to be terminated on 30th November, 2006 consequent to the opinion expressed by her superior against her in view of certain allegations made against the superior.Neither the FIR nor thefiled on behalf of the Respondent No.2 discloses any written complaint having been made to the petitioners while the Respondent No.2 was in employment of the said company i.e. during the period from September, 2005 to November, 2006 exceptstated to have sent on 2nd October, 2006 expressing her offer to resign on the issue of sexual harassment. 11. The facts placed on record therefore disclose that there was no complaint as such filed by the Respondent No.2 with the petitioners or the company in which she was employed making allegation of sexual harassment which would have compelled the company to constitute a committee and refer the matter to the said committee during the period while the Respondent No.2 was in employment of the company.Considering the facts alleged in the complaint, which has been recorded as the FIR, it is apparent that nowhere it discloses any cognizable offence as such against any of the petitioners. Even as far as the directions in Vishakas case (supra) are concerned, there appears genuine attempt on the part of the company to enforce the same. However, no fruitful result could yield from the inquiry by the committee on account ofby the Respondent No.2. In any case,of the directions in that regard is essentially and primarily to be against the company and the Directors who are responsible forthereof. However, the said issue does not arise in the case in hand as we do not find any such failure on the part of the company to comply with such directions in the absence of proper complaint being filed during her service tenure. Mere sending of anoffering desire to resign on account of allegation of sexual harassment made by her and probably action on the part of the company against her, that itself would not lead to a conclusion about failure on the part of the company to comply with the directions issued by the Apex Court in Vishakas case (supra). | 1 | 1,882 | 428 | ### 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:
services. However, the committee which has been constituted was only an eyewash and against all the rules of natural justice. Vishaka guidelines contemplate committee on a complaint by an employee and not by an ex-employee. Considering the fact that inspite of bringing the instances of sexual harassment to the notice of the petitioners, they had failed and refused to initiate any action in the matter, they have clearly breached the guidelines issued by the Honble Supreme Court in Vishakas case. Being so, it is the case of the respondent No.2 that there is no case made out for quashing the FIR.7. The undisputed facts which are revealed in the matter are that the Respondent No.2 was employed as a Director with the said Company for a period of 14 months from September, 2005 to November, 2006. The services of the Respondent No.2 came to be terminated on 30th November, 2006 consequent to the opinion expressed by her superior against her in view of certain allegations made against the superior. It was only thereafter and as late as on 2nd April, 2007 that the Respondent No.2 addressed a letter to the company making various allegations of sexual harassment against the three persons viz. Vikram Utamsingh, Abizer Diwanji and Aneesh Maloo. Undisputedly, thereafter the committee was constituted to inquire into the allegation of harassment, however, the Respondent No.2 has not participated in the inquiry. There is no allegation of sexual harassment against any of the petitioners.8. In the background of above undisputed facts, if one peruses the impugned FIR, it is apparent that apart from failure on the part of the petitioners to take immediate cognizance of the complaint regarding sexual harassment of the said three persons to the Respondent No.2, there is no other allegation against any of the petitioners.9. Undoubtedly, the Apex Court in Vishaka & Ors. v. State of Rajasthan & Ors., reported in (1997)6 SCC 241 had clearly directed that there should be complaint mechanism and complaint committee in its committee to inquire into the allegation of any sexual harassment to a female employee in a company. Equally it is true that such direction would apply to the cases between employer and employee and not in relation to an ex-employee.10. Neither the FIR nor the affidavit-in-reply filed on behalf of the Respondent No.2 discloses any written complaint having been made to the petitioners while the Respondent No.2 was in employment of the said company i.e. during the period from September, 2005 to November, 2006 except E-mail stated to have sent on 2nd October, 2006 expressing her offer to resign on the issue of sexual harassment. 11. The facts placed on record therefore disclose that there was no complaint as such filed by the Respondent No.2 with the petitioners or the company in which she was employed making allegation of sexual harassment which would have compelled the company to constitute a committee and refer the matter to the said committee during the period while the Respondent No.2 was in employment of the company.12. In any case, once it is not in dispute that such committee was constituted even after cessation of Respondent No.2 in the employment of the company pursuant to the complaint made by her in that regard, but it was the Respondent No.2 herself who refused to participate in the inquiry, it cannot be said that there is any case for criminal prosecution against the petitioners. 13. Section 354 of the Indian Penal Code provides punishment for assault or criminal force used against a woman with intent to outrage her modesty. There are no allegations of any assault having been made or criminal force having been used by any of the petitioners against the respondent No.2 either with the intent to outrage her modesty or otherwise. 14. Section 509 of IPC provides punishment for use of word or making of gesture or any act intended to insult the modesty of a woman. No such allegation was found against any of the petitioners in the FIR.15. Section 500 of IPC relates to punishment for defamation. The facts alleged in the complaint nowhere reveal any act on the part of any of the petitioners, which could constitute an act of criminal intimidation punishable under Section 506 of IPC. 16. Section 188 of IPC provides punishment for disobedience to orders promulgated by public servant. By no stretch of imagination, the Supreme Court can be said to be a public servant and for the same reason, the directions issued by the Apex Court in Vishakas (supra) cannot be construed to be directions by a public servant. Undoubtedly, the guidelines issued thereunder are binding and are to be strictly observed by the companies, failing which, appropriate action can be taken against a defaulter. 17. Considering the facts alleged in the complaint, which has been recorded as the FIR, it is apparent that nowhere it discloses any cognizable offence as such against any of the petitioners. Even as far as the directions in Vishakas case (supra) are concerned, there appears genuine attempt on the part of the company to enforce the same. However, no fruitful result could yield from the inquiry by the committee on account of non-cooperation by the Respondent No.2. In any case, non-compliance of the directions in that regard is essentially and primarily to be against the company and the Directors who are responsible for non-compliance thereof. However, the said issue does not arise in the case in hand as we do not find any such failure on the part of the company to comply with such directions in the absence of proper complaint being filed during her service tenure. Mere sending of an E-mail offering desire to resign on account of allegation of sexual harassment made by her and probably action on the part of the company against her, that itself would not lead to a conclusion about failure on the part of the company to comply with the directions issued by the Apex Court in Vishakas case (supra).
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7. The undisputed facts which are revealed in the matter are that the Respondent No.2 was employed as a Director with the said Company for a period of 14 months from September, 2005 to November, 2006. The services of the Respondent No.2 came to be terminated on 30th November, 2006 consequent to the opinion expressed by her superior against her in view of certain allegations made against the superior.Neither the FIR nor thefiled on behalf of the Respondent No.2 discloses any written complaint having been made to the petitioners while the Respondent No.2 was in employment of the said company i.e. during the period from September, 2005 to November, 2006 exceptstated to have sent on 2nd October, 2006 expressing her offer to resign on the issue of sexual harassment. 11. The facts placed on record therefore disclose that there was no complaint as such filed by the Respondent No.2 with the petitioners or the company in which she was employed making allegation of sexual harassment which would have compelled the company to constitute a committee and refer the matter to the said committee during the period while the Respondent No.2 was in employment of the company.Considering the facts alleged in the complaint, which has been recorded as the FIR, it is apparent that nowhere it discloses any cognizable offence as such against any of the petitioners. Even as far as the directions in Vishakas case (supra) are concerned, there appears genuine attempt on the part of the company to enforce the same. However, no fruitful result could yield from the inquiry by the committee on account ofby the Respondent No.2. In any case,of the directions in that regard is essentially and primarily to be against the company and the Directors who are responsible forthereof. However, the said issue does not arise in the case in hand as we do not find any such failure on the part of the company to comply with such directions in the absence of proper complaint being filed during her service tenure. Mere sending of anoffering desire to resign on account of allegation of sexual harassment made by her and probably action on the part of the company against her, that itself would not lead to a conclusion about failure on the part of the company to comply with the directions issued by the Apex Court in Vishakas case (supra).
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K.D. Kamath and Company Vs. Commissioner of Income Tax, Mysore | already held that the management and control of the business done by party No. 1 is the carrying on of the business on behalf of all the partners. No doubt, under section 18 of the Partnership Act, a partner is the agent of the firm for the purpose of the business of the firm. But, that section itself clearly says that it is subject to the provisions of the Act. It is open to the parties under section 11 to enter into an agreement regarding their mutual rights and duties as partners of the firm and that can be done by contract, which in this case is evidenced by the deed of partnership. Further, section 18 will have to be read along with section 4. If the relationship of partners is established as a " partnership " as defined in section 4, and if the necessary ingredients referred to in that section are found to exist, there is no escape from the conclusion that, in law, a partnership has come into existence. It is in the light of these provisions that section 18 will have to be appreciated. Section 18 only emphasises the principle of agency which is already incorporated in the definition of "partnership" under section 4. 19. It should be remembered that, so far as the outside world is concerned, so long as the parties Nos. 2 to 6 are held out as partners of this firm, as has been done under the partnership deed, their acts would bind the whole partnership. The provision in clause (9), in our opinion, is only an inter se arrangement entered into by the partners in and by which the working partners have agreed not to raise loans or pledge the firms interestMr. S. K. Aiyar, learned counsel for the revenue, placed some reliance on section 14 of the Partnership Act. According to the counsel, there is no contract to the contrary in the partnership deed that the assets brought in by party No. 1 do not belong to the partnership. It is his further contention that under section 14, those assets will belong to the partnership, in which case, it will be open to any partner, as agent of the other partners to pledge the firms interest or raise loan for partnership purposes. This right, according to the counsel, is restricted by clause (9) and that clause negatives the theory of agency. In our opinion, this contention of the learned counsel cannot be accepted. Section 14 of the Partnership Act itself clearly shows that the provisions contained therein are subject to the contract between the parties. We have already held that the provisions regarding the control and management vesting in party No. 1 is not by itself destructive of the theory of partnership. Clause (9), in our opinion, itself shows that the theory of agency is recognised. But the parties, by mutual agreement, have placed a restriction on the working partners right to borrow on behalf of the firm or pledge the firms interest without the written authority of the principal partner. 20. Mr. Aiyar placed considerable reliance as the High Court has also done on the earlier decision of the Bombay High Court in Umarbhai Chandbhai v. Commissioner of Income-tax. That again, in our opinion, was a case of an extreme nature where, under a partnership deed, between the father and his two sons, the former had a right to exclude either or both his sons from the management of the firm, wholly or in part. There was also a provision to the effect that the father was entitled to entrust the management to any other person and also determine what quantum of profits should be distributed and what is to be done regarding the remaining profits. There were further provisions to the effect that the father could terminate the partnership and, on such termination, the share of the partner was to revert to the father. The Bombay High Court, having due regard to the clauses, referred to above, as well as other clauses of the partnership deed, held that the document offended against the two principles which were essential to constitute a partnership namely, agreement to share the profits and losses and the business being carried on by all or any of them for all of them. The learned judges held that there was no agreement to share the profits and losses of the business and even the business carried on by the father was not on behalf of all the partners. In such circumstances it was held that the arrangement evidenced by the deed cannot be considered in law to be a partnership. In our opinion, the reliance placed upon this decision by the High Court as well as by Mr. Aiyar is misplaced. In fact, from a perusal of the clauses in the document which the Bombay High Court had to consider, it is clear that the business continued to be the proprietary concern of one single individual, namely, the father. Excepting that the two sons were styled as partners in the document, the essential requisites for constituting the relationship of partners inter se between the father and the two sons were totally absent. The clauses in the case before us are totally different. We have already indicated that there is an agreement for sharing the profits and losses and that even though vast powers of control and management have been given to K. D. Kamath, the managing partner, the business was being carried on by the said managing partner, on behalf of all the partners. These conditions fully satisfy the requirements of the definition of "partnership" under section 4 of the Partnership ActTo conclude, we are of the opinion that all the ingredients of partnership are satisfied under the partnership deed dated March 20, 1959, and that the view of the High Court that the appellant-firm cannot be granted registration under section 26A of the Income-tax Act for the assessment year 1959-60, cannot be sustained. 21. | 1[ds]15. In similar cases, where the control and management was vested in the hands of one partner and where it was also provided that only one partner can operate on the bank account and the others can do so, only if authorised by him, and that only one party can borrow on behalf of the firm for all have been held not to militate against holding a particular document as creating the relationship of master and servant. Those decisions are of the Kerala High Court in Commissioner ofx v. Pathrose Rice & Oil Mills, by the Madras High Court in P. A. C. Ratnaswamy Nadar & Sons v. Commissioner of, by the Allahabad High Court in Commissioner ofx v. R. S. Shoe Factory, by the Madhya Pradesh High Court in Marlidhar Kishangopal v. Commissioner ofx and by the Mysore High Court in City Tobacco Mart v. Commissioner ofe have already referred to the fact that the Bombay High Court in Balubhai Gulabdas Navlakhi v. Commissioner ofx has also taken the same view. In addition to the existence of clauses to the above affect in the partnership deed, we may mention that in the Allahabad decision, referred to above, in a partnership between A, B and C, there was a clause that C was not entitled to invest any capital and that the business is to be carried on only by A and B and that C has no power to interfere with the management of the business. The Allahabad High Court, in spite of all these clauses, held that the document created a relationship of partners as the two essential conditions, referred to by us earlier, existed in that case16. We have already referred to the decision of this court in Agarwal and Co. v. Commissioner of, laying down the conditions, which, if fulfilled, makes it obligatory on thex Officer to register the firm, unless the assessee has contravened section 23(4) of the Act. It is not the case of the revenue that the assessee before us has contravened section 23(4). There is also no controversy that the application has been made in accordance with section 26A as well as the relevant rules. The firm has been constituted under an instrument of partnership dated March 20, 1959. From the clauses of the partnership deed, extracted above, particularly clause (5), the shares of the partners regarding the profit and loss have also been specified. Therefore, it follows that conditions Nos. 1, 2 and 3 specified in the above decision are fully satisfied. Regarding condition No. 4 also, there is no controversy that the partnership is genuine in the sense that it is not a fictitious document. Then the only other requirement referred to in condition No. 4 to be satisfied is whether the partnership is valid in the sense that it creates relationship of partners between the parties thereto. From our discussion in this judgment, according to us, the relationship of partners inter se has been created under the partnership deed and that such relationship had actually existed in accordance with the terms specified in the said documentFrom a review of the above decisions, it is clear that the mere nomenclature given to a document is by itself not sufficient to hold that the document in question is one of partnership. Two essential conditions to be satisfied are: (1) that there should be an agreement to share the profits as well as the losses of the business; and (2) the business must be carried on by all or any of them acting for all, within the meaning of the definition of " partnership " under section 4 of the Partnership Act. The fact that the exclusive power and control, by agreement of the parties, is vested in one partner or the further circumstance that only one partner can operate the bank accounts or borrow on behalf of the firm are not destructive of the theory of partnership provided the two essential conditions, mentioned earlier, are satisfied17. In the light of the principles laid down by this court in Steel Brothers & Co. Ltd. v. Commissioner ofx and in the decisions of the High Courts, referred to above, the reasons given by the High Court for holding that the relationship of partners has not been created under the deed of partnership before us, cannot be sustained. As the control and management of business can be left by agreement in the hands of one partner to be exercised on behalf of all the partners, the other consequence by way of restriction on the rights of the other partners loses all significance. In fact the clauses providing that the working partners are to work under the directions of the managing partner and the further clause restricting their right to accept business or raise any loans or pledge the firms interest except with the consent of the managing partner, K. D. Kamath, have all to be related with the agreement entered into by the partners regarding the management and control by K. D. Kamath. We are of the opinion that under the partnership deed the relationship which has been brought into existence between the six parties is a relationship of partners who have agreed to share the profits and losses of business carried on by all or any of them acting for all and it satisfies the definition of "partnership" under section 4 of the Partnership Act. We have already pointed out that there is a sharing of the profits or losses of the business by the partners in the ratio of the proportion mentioned in clause (5). That clause read with other clauses already discussed by us clearly shows that the first condition, namely, all persons agreeing to share profits or losses is satisfied. Even on the basis that the entire control and management of the business is vested in K. D. Kamath, party No. 1, and that parties Nos. 2 to 6 as working partners have to work under his direction, from all the other circumstances it is clear that the conduct of business by party No. 1 is done by him acting for all the partners. There is no indication to the contrary in the partnership deed. Therefore, even without anything more, it is clear that as the partnership business is carried on by party No. 1, acting for all, the second condition of agency is also satisfied. This idea is reinforced by clause (16) which provides that the firms affairs are to be carried on for mutual benefit. That clause is to the effect that the firms affairs which are managed by party No. 1 are really for the mutual gain and benefit of all the partnersIt is, no doubt, true that the second essential test of the business being carried on by all or any of the partners acting for all must be satisfied. The provisions in the partnership deed clearly establish that K.D. Kamath, the managing partner, carries on the business acting for all the partners.18. Much stress has been laid by the High Court on the fact that under clause (9) parties Nos. 2 to 6 have no right to raise loans for and on behalf of the firm or pledge the firms interest. This circumstance, according to the High Court, is destructive of the element of partnership. We have already held that the management and control of the business done by party No. 1 is the carrying on of the business on behalf of all the partners. No doubt, under section 18 of the Partnership Act, a partner is the agent of the firm for the purpose of the business of the firm. But, that section itself clearly says that it is subject to the provisions of the Act. It is open to the parties under section 11 to enter into an agreement regarding their mutual rights and duties as partners of the firm and that can be done by contract, which in this case is evidenced by the deed of partnership. Further, section 18 will have to be read along with section 4. If the relationship of partners is established as a " partnership " as defined in section 4, and if the necessary ingredients referred to in that section are found to exist, there is no escape from the conclusion that, in law, a partnership has come into existence. It is in the light of these provisions that section 18 will have to be appreciated. Section 18 only emphasises the principle of agency which is already incorporated in the definition of "partnership" under section 4.19. It should be remembered that, so far as the outside world is concerned, so long as the parties Nos. 2 to 6 are held out as partners of this firm, as has been done under the partnership deed, their acts would bind the whole partnership. The provision in clause (9), in our opinion, is only an inter se arrangement entered into by the partners in and by which the working partners have agreed not to raise loans or pledge the firms interestMr. S. K. Aiyar, learned counsel for the revenue, placed some reliance on section 14 of the Partnership Act. According to the counsel, there is no contract to the contrary in the partnership deed that the assets brought in by party No. 1 do not belong to the partnership. It is his further contention that under section 14, those assets will belong to the partnership, in which case, it will be open to any partner, as agent of the other partners to pledge the firms interest or raise loan for partnership purposes. This right, according to the counsel, is restricted by clause (9) and that clause negatives the theory of agency. In our opinion, this contention of the learned counsel cannot be accepted. Section 14 of the Partnership Act itself clearly shows that the provisions contained therein are subject to the contract between the parties. We have already held that the provisions regarding the control and management vesting in party No. 1 is not by itself destructive of the theory of partnership. Clause (9), in our opinion, itself shows that the theory of agency is recognised. But the parties, by mutual agreement, have placed a restriction on the working partners right to borrow on behalf of the firm or pledge the firms interest without the written authority of the principal partner.20. Mr. Aiyar placed considerable reliance as the High Court has also done on the earlier decision of the Bombay High Court in Umarbhai Chandbhai v. Commissioner of. That again, in our opinion, was a case of an extreme nature where, under a partnership deed, between the father and his two sons, the former had a right to exclude either or both his sons from the management of the firm, wholly or in part. There was also a provision to the effect that the father was entitled to entrust the management to any other person and also determine what quantum of profits should be distributed and what is to be done regarding the remaining profits. There were further provisions to the effect that the father could terminate the partnership and, on such termination, the share of the partner was to revert to the father. The Bombay High Court, having due regard to the clauses, referred to above, as well as other clauses of the partnership deed, held that the document offended against the two principles which were essential to constitute a partnership namely, agreement to share the profits and losses and the business being carried on by all or any of them for all of them. The learned judges held that there was no agreement to share the profits and losses of the business and even the business carried on by the father was not on behalf of all the partners. In such circumstances it was held that the arrangement evidenced by the deed cannot be considered in law to be a partnership. In our opinion, the reliance placed upon this decision by the High Court as well as by Mr. Aiyar is misplaced. In fact, from a perusal of the clauses in the document which the Bombay High Court had to consider, it is clear that the business continued to be the proprietary concern of one single individual, namely, the father. Excepting that the two sons were styled as partners in the document, the essential requisites for constituting the relationship of partners inter se between the father and the two sons were totally absent. The clauses in the case before us are totally different. We have already indicated that there is an agreement for sharing the profits and losses and that even though vast powers of control and management have been given to K. D. Kamath, the managing partner, the business was being carried on by the said managing partner, on behalf of all the partners. These conditions fully satisfy the requirements of the definition of "partnership" under section 4 of the Partnership ActTo conclude, we are of the opinion that all the ingredients of partnership are satisfied under the partnership deed dated March 20, 1959, and that the view of the High Court that them cannot be granted registration under section 26A of thex Act for the assessment year, cannot be sustained. | 1 | 9,147 | 2,443 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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already held that the management and control of the business done by party No. 1 is the carrying on of the business on behalf of all the partners. No doubt, under section 18 of the Partnership Act, a partner is the agent of the firm for the purpose of the business of the firm. But, that section itself clearly says that it is subject to the provisions of the Act. It is open to the parties under section 11 to enter into an agreement regarding their mutual rights and duties as partners of the firm and that can be done by contract, which in this case is evidenced by the deed of partnership. Further, section 18 will have to be read along with section 4. If the relationship of partners is established as a " partnership " as defined in section 4, and if the necessary ingredients referred to in that section are found to exist, there is no escape from the conclusion that, in law, a partnership has come into existence. It is in the light of these provisions that section 18 will have to be appreciated. Section 18 only emphasises the principle of agency which is already incorporated in the definition of "partnership" under section 4. 19. It should be remembered that, so far as the outside world is concerned, so long as the parties Nos. 2 to 6 are held out as partners of this firm, as has been done under the partnership deed, their acts would bind the whole partnership. The provision in clause (9), in our opinion, is only an inter se arrangement entered into by the partners in and by which the working partners have agreed not to raise loans or pledge the firms interestMr. S. K. Aiyar, learned counsel for the revenue, placed some reliance on section 14 of the Partnership Act. According to the counsel, there is no contract to the contrary in the partnership deed that the assets brought in by party No. 1 do not belong to the partnership. It is his further contention that under section 14, those assets will belong to the partnership, in which case, it will be open to any partner, as agent of the other partners to pledge the firms interest or raise loan for partnership purposes. This right, according to the counsel, is restricted by clause (9) and that clause negatives the theory of agency. In our opinion, this contention of the learned counsel cannot be accepted. Section 14 of the Partnership Act itself clearly shows that the provisions contained therein are subject to the contract between the parties. We have already held that the provisions regarding the control and management vesting in party No. 1 is not by itself destructive of the theory of partnership. Clause (9), in our opinion, itself shows that the theory of agency is recognised. But the parties, by mutual agreement, have placed a restriction on the working partners right to borrow on behalf of the firm or pledge the firms interest without the written authority of the principal partner. 20. Mr. Aiyar placed considerable reliance as the High Court has also done on the earlier decision of the Bombay High Court in Umarbhai Chandbhai v. Commissioner of Income-tax. That again, in our opinion, was a case of an extreme nature where, under a partnership deed, between the father and his two sons, the former had a right to exclude either or both his sons from the management of the firm, wholly or in part. There was also a provision to the effect that the father was entitled to entrust the management to any other person and also determine what quantum of profits should be distributed and what is to be done regarding the remaining profits. There were further provisions to the effect that the father could terminate the partnership and, on such termination, the share of the partner was to revert to the father. The Bombay High Court, having due regard to the clauses, referred to above, as well as other clauses of the partnership deed, held that the document offended against the two principles which were essential to constitute a partnership namely, agreement to share the profits and losses and the business being carried on by all or any of them for all of them. The learned judges held that there was no agreement to share the profits and losses of the business and even the business carried on by the father was not on behalf of all the partners. In such circumstances it was held that the arrangement evidenced by the deed cannot be considered in law to be a partnership. In our opinion, the reliance placed upon this decision by the High Court as well as by Mr. Aiyar is misplaced. In fact, from a perusal of the clauses in the document which the Bombay High Court had to consider, it is clear that the business continued to be the proprietary concern of one single individual, namely, the father. Excepting that the two sons were styled as partners in the document, the essential requisites for constituting the relationship of partners inter se between the father and the two sons were totally absent. The clauses in the case before us are totally different. We have already indicated that there is an agreement for sharing the profits and losses and that even though vast powers of control and management have been given to K. D. Kamath, the managing partner, the business was being carried on by the said managing partner, on behalf of all the partners. These conditions fully satisfy the requirements of the definition of "partnership" under section 4 of the Partnership ActTo conclude, we are of the opinion that all the ingredients of partnership are satisfied under the partnership deed dated March 20, 1959, and that the view of the High Court that the appellant-firm cannot be granted registration under section 26A of the Income-tax Act for the assessment year 1959-60, cannot be sustained. 21.
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of the element of partnership. We have already held that the management and control of the business done by party No. 1 is the carrying on of the business on behalf of all the partners. No doubt, under section 18 of the Partnership Act, a partner is the agent of the firm for the purpose of the business of the firm. But, that section itself clearly says that it is subject to the provisions of the Act. It is open to the parties under section 11 to enter into an agreement regarding their mutual rights and duties as partners of the firm and that can be done by contract, which in this case is evidenced by the deed of partnership. Further, section 18 will have to be read along with section 4. If the relationship of partners is established as a " partnership " as defined in section 4, and if the necessary ingredients referred to in that section are found to exist, there is no escape from the conclusion that, in law, a partnership has come into existence. It is in the light of these provisions that section 18 will have to be appreciated. Section 18 only emphasises the principle of agency which is already incorporated in the definition of "partnership" under section 4.19. It should be remembered that, so far as the outside world is concerned, so long as the parties Nos. 2 to 6 are held out as partners of this firm, as has been done under the partnership deed, their acts would bind the whole partnership. The provision in clause (9), in our opinion, is only an inter se arrangement entered into by the partners in and by which the working partners have agreed not to raise loans or pledge the firms interestMr. S. K. Aiyar, learned counsel for the revenue, placed some reliance on section 14 of the Partnership Act. According to the counsel, there is no contract to the contrary in the partnership deed that the assets brought in by party No. 1 do not belong to the partnership. It is his further contention that under section 14, those assets will belong to the partnership, in which case, it will be open to any partner, as agent of the other partners to pledge the firms interest or raise loan for partnership purposes. This right, according to the counsel, is restricted by clause (9) and that clause negatives the theory of agency. In our opinion, this contention of the learned counsel cannot be accepted. Section 14 of the Partnership Act itself clearly shows that the provisions contained therein are subject to the contract between the parties. We have already held that the provisions regarding the control and management vesting in party No. 1 is not by itself destructive of the theory of partnership. Clause (9), in our opinion, itself shows that the theory of agency is recognised. But the parties, by mutual agreement, have placed a restriction on the working partners right to borrow on behalf of the firm or pledge the firms interest without the written authority of the principal partner.20. Mr. Aiyar placed considerable reliance as the High Court has also done on the earlier decision of the Bombay High Court in Umarbhai Chandbhai v. Commissioner of. That again, in our opinion, was a case of an extreme nature where, under a partnership deed, between the father and his two sons, the former had a right to exclude either or both his sons from the management of the firm, wholly or in part. There was also a provision to the effect that the father was entitled to entrust the management to any other person and also determine what quantum of profits should be distributed and what is to be done regarding the remaining profits. There were further provisions to the effect that the father could terminate the partnership and, on such termination, the share of the partner was to revert to the father. The Bombay High Court, having due regard to the clauses, referred to above, as well as other clauses of the partnership deed, held that the document offended against the two principles which were essential to constitute a partnership namely, agreement to share the profits and losses and the business being carried on by all or any of them for all of them. The learned judges held that there was no agreement to share the profits and losses of the business and even the business carried on by the father was not on behalf of all the partners. In such circumstances it was held that the arrangement evidenced by the deed cannot be considered in law to be a partnership. In our opinion, the reliance placed upon this decision by the High Court as well as by Mr. Aiyar is misplaced. In fact, from a perusal of the clauses in the document which the Bombay High Court had to consider, it is clear that the business continued to be the proprietary concern of one single individual, namely, the father. Excepting that the two sons were styled as partners in the document, the essential requisites for constituting the relationship of partners inter se between the father and the two sons were totally absent. The clauses in the case before us are totally different. We have already indicated that there is an agreement for sharing the profits and losses and that even though vast powers of control and management have been given to K. D. Kamath, the managing partner, the business was being carried on by the said managing partner, on behalf of all the partners. These conditions fully satisfy the requirements of the definition of "partnership" under section 4 of the Partnership ActTo conclude, we are of the opinion that all the ingredients of partnership are satisfied under the partnership deed dated March 20, 1959, and that the view of the High Court that them cannot be granted registration under section 26A of thex Act for the assessment year, cannot be sustained.
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Divisional Personnel Officer, Western Railway, Kota Vs. Sundar Dass | disciplinary proceeding and the order of dismissal pursuant to the finding recorded in the disciplinary proceeding is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, as in the present case, decides to hold a fresh inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed. It is not the case of the respondent that he had resumed duty after the original order of dismissal dated 14-S-1949 was set aside and that he continued to be in service until he was subsequently dismissed fro m service by the order dated 23.12.1966. It is seen from the original order of Dismissal dated 14.5.1949 that the respondent had been informed by the instruction appended to that order that he would be given subsistence allowance at the rate of 50% o f his pay for the period from 17.2.1949 to 14.5.1949, both days inclusive, when he remained under suspension. The respondent did not dispute before us the fact that he was placed under suspension from 17.2.1949 pending the inquiry resulting in his dismissal by the order dated 14.5.1949. But what the respondent contended before us is that the original order of dismissal dated 14.5.1949 is based on the finding of guilt recorded in respect of a single charge and that a secon d allegation has been made in the charge framed in the fresh inquiry and therefore, the provisions of Rule 1706(4) of the Indian Railways Establishment Code are not attracted. The respondent invited our attention to the fact that in the first sus pension order dated 17.2.1949, he has been described as a Clerk, Executive Engineers Office, Kota Division and in the charge framed in the fresh inquiry on 22-3-1965 as ex-Clerk of the office of the Executive Engineer, Kota Divisi on and also to the fact that he had been informed by the Chief Engineers letter dated 9-9-1965 that he has not placed under suspension by the administra- tion and only fresh proceedings have been taken against him in view of the judgment of the Rajasthan High Court and therefore, the question of the administration granting him permission to leave his residence or Kota Railway Station does not arise-in support of his contention that he could not be deemed to have been under suspensi on after his original order of dismissal had been set aside by the High Court. The respondent appears to have been conscious of the fact that the order of suspension dated 17-2-1949 had not been revoked when he applied for permission to absent fr om his headquarters. The Chief Engineer appears to have stated in his letter dated 9-9-1965 that the respondent had not been placed under suspension and therefore, he did not require the permission of the Railway ad ministration to leave Kot a only on the basis that there was no fresh order of suspension after the original order of dismissal dated 14-S-1949 had been set aside by the High Court. As stated earlier, the respondent has not disputed the fact that he had been placed under suspension by the order 17-2-1949, and it is clear that he was under suspension thereafter throughout and he had attained the age of superannuation in 1963, his year of birth being 1908. The charge framed against respondent in the first inquiry was this:"Obtaining employment by concealment of his antecedents which would have prevented his employment in railway service, had they been known before his appointment, to the authority appointing him." 5. The reasons for that charge given were that he obtained employment in the Western Railway by giving false intimation to the Transfer officer (India), Ambala Cantonment to the effect that he was in service on the North Western Railway at the time o f partition. In the fresh charge dated 22.3.1965 framed against the respondent, it is stated that:" Fresh proceedings are being taken against him in view of the judgment of the Rajasthan High Court that his dismissal from ser vice was illegal and he has been informed that the charge is based on (1) the declaration of 8.1.1948 made by respondent to the Assistant Transfer officer, Ambala Cantt. that he was working on the ex-North Western Railway and was in receipt of substantive pay of Rs. 98/- plus Rs. 4.50 and has been confirmed in that post on 1.11.1943 and (2) the declaration dated 26.1.1948 after he joined the Ex-B.B. &C.I. Railway." 6. On a perusal of the two charges, we are of the opinion that the fresh charge dated 22.3.1965 is only a single charge and that the second allegation, namely, the declaration dated 26.1.1948 made by the respondent after he joined the Ex-B.B. &C.I. Railway, was only intended to be relied upon for proving that charge. We are, therefore, unable to accept the submission of the respondent that any different or additional charge was framed against him in the fresh inquiry. The subsequent inquiry was in respect of the same charge, namely, that the respondent had suppressed the fact that he had been discharged from railway service on 12.4.1944 while he secured employment in 1948 after the partition of India. Rule 1706(4) of the Indian Railway Establishment Code is squarely attracted to the case of the respondent. In these circumstances, we hold that the respondent who had been suspended on 17.2.1949 pending inquiry and had not reported for duty after the original order of dismissal dated 14.5.1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by both the parties, must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706(4) in view of the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of suspension until the final order of dismissal and not to full wages. | 1[ds]We perused the record of the fresh inquiry and are satisfied that the respondent has admitted the fact of his discharge from service on4 while securing fresh employment under B.B. &C.I. Rail way. Mr. Taluqdar, Senior Counsel, appearing for the appellant submitted that the respondent had been suspended from service on9 before he was originally dismissed from service on9 pursuant to a finding of guilt recorded in the departmental inquiry and that in the subsequent departmental inquiry also, he had been found guilty and was subsequently dismissed from service and therefore, by virtue of the provisions of Rule 1706(4) of the Indian Railway Establishment Code, he must be deemed to have A been under suspension right through from9 and he would be entitled only to subsistence allowance and not to full wages for the period from. Clause (1) of Rule 1706 provides for a railway servant being placed under suspension inter alia where a disciplinary proceeding against him is contemplated or pending. &C.I. Railway, was only intended to be relied upon for proving that charge. We are, therefore, unable to accept the submission of the respondent that any different or additional charge was framed against him in the fresh inquiry. The subsequent inquiry was in respect of the same charge, namely, that the respondent had suppressed the fact that he had been discharged from railway service on 12.4.1944 while he secured employment in 1948 after the partition of India. Rule 1706(4) of the Indian Railway Establishment Code is squarely attracted to the case of the respondent. In these circumstances, we hold that the respondent who had been suspended on 17.2.1949 pending inquiry and had not reported for duty after the original order of dismissal dated 14.5.1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by both the parties, must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706(4) in view of the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of suspension until the final order of dismissal and not to full wages. | 1 | 3,016 | 401 | ### 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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disciplinary proceeding and the order of dismissal pursuant to the finding recorded in the disciplinary proceeding is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, as in the present case, decides to hold a fresh inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed. It is not the case of the respondent that he had resumed duty after the original order of dismissal dated 14-S-1949 was set aside and that he continued to be in service until he was subsequently dismissed fro m service by the order dated 23.12.1966. It is seen from the original order of Dismissal dated 14.5.1949 that the respondent had been informed by the instruction appended to that order that he would be given subsistence allowance at the rate of 50% o f his pay for the period from 17.2.1949 to 14.5.1949, both days inclusive, when he remained under suspension. The respondent did not dispute before us the fact that he was placed under suspension from 17.2.1949 pending the inquiry resulting in his dismissal by the order dated 14.5.1949. But what the respondent contended before us is that the original order of dismissal dated 14.5.1949 is based on the finding of guilt recorded in respect of a single charge and that a secon d allegation has been made in the charge framed in the fresh inquiry and therefore, the provisions of Rule 1706(4) of the Indian Railways Establishment Code are not attracted. The respondent invited our attention to the fact that in the first sus pension order dated 17.2.1949, he has been described as a Clerk, Executive Engineers Office, Kota Division and in the charge framed in the fresh inquiry on 22-3-1965 as ex-Clerk of the office of the Executive Engineer, Kota Divisi on and also to the fact that he had been informed by the Chief Engineers letter dated 9-9-1965 that he has not placed under suspension by the administra- tion and only fresh proceedings have been taken against him in view of the judgment of the Rajasthan High Court and therefore, the question of the administration granting him permission to leave his residence or Kota Railway Station does not arise-in support of his contention that he could not be deemed to have been under suspensi on after his original order of dismissal had been set aside by the High Court. The respondent appears to have been conscious of the fact that the order of suspension dated 17-2-1949 had not been revoked when he applied for permission to absent fr om his headquarters. The Chief Engineer appears to have stated in his letter dated 9-9-1965 that the respondent had not been placed under suspension and therefore, he did not require the permission of the Railway ad ministration to leave Kot a only on the basis that there was no fresh order of suspension after the original order of dismissal dated 14-S-1949 had been set aside by the High Court. As stated earlier, the respondent has not disputed the fact that he had been placed under suspension by the order 17-2-1949, and it is clear that he was under suspension thereafter throughout and he had attained the age of superannuation in 1963, his year of birth being 1908. The charge framed against respondent in the first inquiry was this:"Obtaining employment by concealment of his antecedents which would have prevented his employment in railway service, had they been known before his appointment, to the authority appointing him." 5. The reasons for that charge given were that he obtained employment in the Western Railway by giving false intimation to the Transfer officer (India), Ambala Cantonment to the effect that he was in service on the North Western Railway at the time o f partition. In the fresh charge dated 22.3.1965 framed against the respondent, it is stated that:" Fresh proceedings are being taken against him in view of the judgment of the Rajasthan High Court that his dismissal from ser vice was illegal and he has been informed that the charge is based on (1) the declaration of 8.1.1948 made by respondent to the Assistant Transfer officer, Ambala Cantt. that he was working on the ex-North Western Railway and was in receipt of substantive pay of Rs. 98/- plus Rs. 4.50 and has been confirmed in that post on 1.11.1943 and (2) the declaration dated 26.1.1948 after he joined the Ex-B.B. &C.I. Railway." 6. On a perusal of the two charges, we are of the opinion that the fresh charge dated 22.3.1965 is only a single charge and that the second allegation, namely, the declaration dated 26.1.1948 made by the respondent after he joined the Ex-B.B. &C.I. Railway, was only intended to be relied upon for proving that charge. We are, therefore, unable to accept the submission of the respondent that any different or additional charge was framed against him in the fresh inquiry. The subsequent inquiry was in respect of the same charge, namely, that the respondent had suppressed the fact that he had been discharged from railway service on 12.4.1944 while he secured employment in 1948 after the partition of India. Rule 1706(4) of the Indian Railway Establishment Code is squarely attracted to the case of the respondent. In these circumstances, we hold that the respondent who had been suspended on 17.2.1949 pending inquiry and had not reported for duty after the original order of dismissal dated 14.5.1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by both the parties, must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706(4) in view of the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of suspension until the final order of dismissal and not to full wages.
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We perused the record of the fresh inquiry and are satisfied that the respondent has admitted the fact of his discharge from service on4 while securing fresh employment under B.B. &C.I. Rail way. Mr. Taluqdar, Senior Counsel, appearing for the appellant submitted that the respondent had been suspended from service on9 before he was originally dismissed from service on9 pursuant to a finding of guilt recorded in the departmental inquiry and that in the subsequent departmental inquiry also, he had been found guilty and was subsequently dismissed from service and therefore, by virtue of the provisions of Rule 1706(4) of the Indian Railway Establishment Code, he must be deemed to have A been under suspension right through from9 and he would be entitled only to subsistence allowance and not to full wages for the period from. Clause (1) of Rule 1706 provides for a railway servant being placed under suspension inter alia where a disciplinary proceeding against him is contemplated or pending. &C.I. Railway, was only intended to be relied upon for proving that charge. We are, therefore, unable to accept the submission of the respondent that any different or additional charge was framed against him in the fresh inquiry. The subsequent inquiry was in respect of the same charge, namely, that the respondent had suppressed the fact that he had been discharged from railway service on 12.4.1944 while he secured employment in 1948 after the partition of India. Rule 1706(4) of the Indian Railway Establishment Code is squarely attracted to the case of the respondent. In these circumstances, we hold that the respondent who had been suspended on 17.2.1949 pending inquiry and had not reported for duty after the original order of dismissal dated 14.5.1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by both the parties, must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706(4) in view of the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of suspension until the final order of dismissal and not to full wages.
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Hindustan Sugar Mills Etc Vs. State of Rajasthan and Others | view that the former, and not the latter, represents the correct legal position. If the obligation to pay the freight were on the purchaser and in fact the purchaser paid the freight, as happen ed in both the cases before us i n respect of every transaction of sale of cement, the amount of freight would obviously be deducted from the F.O.R. destination railway station price in the invoice and only the balance would be realised by the assessee. There would be no question of the assessee realising the amount of freight from the purchaser because the purchaser would have paid the freight in discharge of his own liability and the assessee would have no claim to recover it from the purchaser. Then how would the terms of clause ( 9 ), proviso to that clause and Clause (11) of the Control order be satisfied ? How would it be possible to give effect to clause (9) if what is realised by the assessee is not the F.O.R. destination railway station price but that price less the amount of freight? How would the assessee claim to be entitled to be reimbursed under the proviso to clause (9) if he has not incurred any expenditure on the freight? The entire statutory scheme would become unworkable. The scheme of the Control order clearly proceeds on the basis that the flight is payable by the producer and the recovers it from the purchaser at part the F.O.R. destination railway station price. The provision in the contract that the delivery to the purchaser shall be complete as soon as the goods are put on rail and payment of the freight shall be the responsibility of the purchaser is wholly inconsistent with the scheme of the Control order and must be held to be excluded by it. The Control order is paramount: it has overriding effect and if it stipulates that the freight shall be payable by the producer, such stipulation must be prevail, notwithstanding any term or condition the contract to the contrary. The conclusion is, therefore, inevitable, - that the amount of freight forms part of the sale price within the meaning of the first part of the definition.This renders it unnecessary to consider the second part of the definition, but the latter clause of the second p art was strongly relied upon on behalf of the assessee to support the exclusion of the amount of freight from sale price and hence we must proceed to consider it. The second part enacts an inclusive clause. It says that sale price includes "any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged." Therefore, any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof is to be regarded as part of sale price, even if it does not fall within the first part of the definition. But there is an exception carved out of this inclusion. Not all sums charged for something done by the dealer in respect of the goods at the time of or therefore the delivery thereof are covered by the inclusive clause. The cost of freight or delivery or the cost of installation certainly represents an amount charged for transportation or installation of the goods at the time of or before the delivery thereof and would, there- fore, fall within the inclusive clause on its plain terms but it is taken out by the exclusion clause, "other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged". This exclusion clause does not operate as an exception to the first part of the definition. It mere ly enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of sale price`. But if the State is able to show that the particular amount falls within the first part of the definition and is, therefore, part of the sale price, the exclusion clause cannot avail the assessee to take the amount in question out of the definition of sale price. Here on the view taken by us, the amount of freight forms part of the sale price within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. We may point out that eve n if the exclusion clause were read as an exception to the first part of the definition which, as we have pointed out, cannot be done, it cannot avail the assessee. It is only where the cost of freight is separately charged that it would fall within t he exclusion clause and in the context of the definition as a whole, it is obvious that the expression "- cost of freight is separately charged ` is used in contradistinction to a case where the cost of freight is not separately charged but is included in the price. It is not intended to apply to a case where the cost of freight is part of the price but the dealer chooses to split up the price and claim the amount of freight as a separate item. in the invoice. Where the cost of freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part have no application. | 0[ds]Though we are concerned in these appeals with assessments made under both Rajasthan Sales Tax Act, 1954 and Central Sales Tax Act, 1956, it would be sufficient to refer only to the provisions of the Rajasthan Sales Tax Act, 1954, since the material provisions of both the Acts are identicalThis definition is in two parts. The first part says that sale price means the amount payable to a dealer as consideration for the sale of any goods. Here, the concept of real price or actual price retainable by the dealer is irrelevant. The test is, what is the consideration passing from the purchaser to the dealer for the sale of the goods. It is immaterial to enquire as to how the amount of consideration is made up. whether it includes excise duty or sales tax or freight The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the sale an d not as to what is the net consideration retainable by the dealer.Take for example, excise duty payable by a dealer who is a manufacturer. When he sells goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchases would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill. In either case, it would be part of the sale price. So also, the amount of sales tax payable by a dealer, whether included in the price or added to it as a separate item as is usually in case, forms part of the sale price. It is payable by the purchaser to the dealer as part of the consideration for the sale of the goods and hence falls within the first part of the definition. This position is now well settled as a result of the decision of this Court in M/s George Oakes (Pvt.) Ltd. Versus The State of Madras &ors. (XII STC 476) whether the view taken by Madras High Court in S ri Sundararajan &Co. Ltd. Versus The State of Madras (VIII STC 105) was approved. There S. K. Das, J., speaking on behalf of the Court, approved of the following observations of Lawrence, J., in Paprika Ltd. &Anr. Versus Board of Trade (1944) Al l E.R.r a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even the price is expressed as x plus purchase tax."We may then take a case where a dealer transports goods from his. factory to his place of business and sells them at a price which is. arrived at after taking into account freight and handling charges incurred by him in transporting the goods. The amount of freight and handling charges included in the price would obviously be the part of the sale price, because it would be payable by the purchaser to the dealer as part of the consideration for the sale of the goods. The same would be the legal position even if the freight and handling charges are shown separately in the bill and added to the price of the goods, for the character of the payment would remain the same. Since freight and handling charges represent expenditure incurred by the. dealer in making the goods available to the purchaser at the place of sale, they would constitute an addition to the cost of the goods to the dealer and would clearly be a component of the price charged to the purchaser. The amount of freight and handling charges would he. payable by the purchaser not under any statutory or other liability out as part of the consideration for the sale of the goods and it would, therefore, Form part of sale price within the meaning of the first part of the definition. This position is also well settled having regard to the decisions of this Court inDyer Meakin Breweries Ltd. v. sales Tax officer, Ernakulam ( XXVII STCe may now take another example which is very much near to the one which we have already discussed. The dealer may, instead of transporting the goods from his factory or his place of business and selling them there, enter into a contract of sale F.O.R.. destination railway station. Where such a contract is made, the seller undertakes an obligation to put the goods on rail and arrange to have them carried to the destination railway station at his expense. The delivery of the goods to the purchaser in such a case is complete at the distination railwaystation and till then the risk continues to remain with the dealer. The freight is payable by the dealer since he has to arrange for the goods to be carried by rail to the destination railway station at his expense and there is no obligation on the purchaser to pay the freight The purchaser is concerned only to pay the agreed price for the delivery of the goods at the destination railway station. The agreed price being inclusive of the freight, it would be a matter of indifference to the purchaser as to what is the amount of freight. Even if there is any fluctuation in the amount of freight, since the making of the contract, the purchaser would have no concern, because he is liable to pay only the agreed price which includes the freight, whatever it be. The dealer may, in such a case, pay the freight and charge the agreed price to the purchaser, or he may obtain a railway receipt on the basis of freight to pay" and request the purchaser to pay the freight at the time of taking delivery of the goods from the railway at the destination railway station and give the purchaser credit for the amount of the freight against the agreed price. The latter would merely be a convenient mode of paying the agreed price. Since it is the obligation of the dealer to deliver the goods free on rail destination railway station, the dealer is liable to pay the freight s between him and the purchaser and the purchaser can very well refuse to accept the railway receipt which is not "freightprepaid"but "freight to pay". But he may, ordinarily as a reasonable businessman he would, accept such railway receipt and pay the amount of freight on behalf of the dealer. When the purchasers pay the amount of freight in such a case, it would be; as part of the agreed price and not as freights the dealer. The amount of freight paid by the purchaser and shown in the bill as deducted from the agreed pr ice would, therefore, clearly form part of "sale price" and fall within the first part of the definition.This would plainly and indubitably be the position where the contract of sale entered into by the dealer is F.O.R.. destination railway station. But here it is necessary to bear in mind a rather important distinction. There may be a case where the contract of sale may not be F.O.R.. destination railway station, but the price alone may be so. Where such is the case, the contract does not have all the incidents of a F.O.R. destination railway station contract, but merely the price is stipulated on that basis. The terms of such a contract may provide that the delivery shall be complete when the goods a re put on rail and thereafter It shall be at the risk of the purchaser. Such a stipulation would make the railway agent of the purchaser for taking delivery of the goods. The freight in such a case would be payable by the purchaser though the pr ice agreed upon is F.O.R.. destination railway station. The price of the goods receivable by the dealer would, in that event, he the F.O.R.. destination railway station price less the amount of freight payable by the purchaser. That would be the consideration payable by the purchaser to the dealer for the sale of the goods and the amount of freight being payable by the purchaser would not be included in the sale price within the meaning of the first part of the definition. The position would be the same even if the dealer pays the freight and obtains railway receipt freightprepaid"and claims the full F.O.R.. destination railway station price in the bill. The amount representing freight would not be payable as part of the consideration for the sale of the goods but by way of reimbursement of the freight which was payable by the purchaser but in fact disbursed by the dealer and hence it would not form part of the sale price.This was precisely the basis on which the decision in Hyerabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh (XXIV STC 487) was given by this Court. There the appellant maintained a uniform catalogue rate all over the country in respect of its manufactures an d the catalogue rate obviously included freight in transporting goods to the customers. The appellant despatched goods lo the customers by rail under railway receipts with "freight to pay" and made out invoices at the catalogue rate, deducted discount from it and charged sales tax on the balance and then gave credit for the amount of freight to be paid by the customers. The question arose in the 1.. assessment of the appellant to sales tax whether the amount of freight formed part of the sale price and was, therefore, includible in the turnover of the appellant. The terms of the contracts with the customers were in a printed form and clauses (4) and (16) thereof provided as follows: (4) The prices of the said productions supplied to the stockists shall be the current general gross list price charged by the company Free on rail, less such discount as may be fixed by the company from time to time (16) " the date of delivery shall mean the date of the railway receipt and in the case of consignment sold free on rail destination, the railway freight shall be nevertheless payable by the stockists at the destinations and the amount of freight should on the railway receipt shall be deducted from the invoice of the company`. It will be seen that under clause (4) the price of the goods was stipulated to be "the current general gross list price charged by the company free on rail", but clause (16) made it clear that "the date of delivery shall mean the date of the railway receipt" and though the goods may be sold free on rail destination, "the railway freight shall nevertheless be payable by the stockists at the destinations and the amount of freight shall be deducted from the invoice of the company" The combined reading of clauses (4) and (16) clearly showed that it was only the price which was F.O.R. destination and the delivery to the customers was complete as soon as the. goods were put on rail and payment of freight was the obligation of the customers as between them and the appellant. That is why Shah, J., speaking on behalf of the Court said: "If clause (4) stood alone the price charged by the company may be deemed to be the catalogue rate less the discount payable to the purchasers. But by clause (16) the purchasers clearly undertook to pay railway freight which was deducted from the invoice made out by the company. By clause (16) the company received the catalogue rate less the railway freight as price of the goods sold. We are unable to agree with the High Court that "the term relating to the price in the contract between the company and the stockists envisaged by this clause [clause (16)] implies a obligation on the part of the company to pay the railway freight". In our judgment, under the terms of the contract, there is no obligation on the company to pay the freight, and under the terms of the contract the price received by the company for sale of goods is the invoice amount less the freight" and held that the amount of freight was not part of the sale price. It was, to quote again the words of Shah, J.. "not made a part of the price".We may also at this stage refer to another decision of this court earlier in point of time. That is the decision in Tungabhadra Industries Ltd. Kurnool Versus Commercial Tax officer Kurnool (XI STC 827). What happened in this case was that the appellant sold and despatched hydrogenated groundnut oil to the purchasers at an agreed price which was inclusive of freight. It is not very clear from the record but it does appear that the railway receipts obtained by the appellant were on the basis of freight to pay and the amount of freight was paid by the purchasers and in the invoices made out by the appellant, the agreed price inclusive of freight was shown and from this the amount of freight was deducted and on the balance the amount of sales tax was computed. The appellant claimed to deduct the amount of freight from the turnover on the strength of Rule 5(1) (g) of the turnover and Assessment Rules which provided that in determining the net turnover of a dealer, he shall be entitled to a deduction of "all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold: (i) freight;(ii) This Court held that the deduction claimed was not permissible since the conditions for the applicability of Rule 5(1) (g) were not satisfied. It was pointed out that it was clear from the contents of the specimen invoice produced by the appellant that "the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of Rule 5(1) (g) which requires that in order to enable dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight." Here the freight was payable by the appellant because the price was inclusive of the freight and there was no stipulation in the contract, as in the Hyderabad Asbestos Cement Companys case, that the delivery to the purchaser shall be complete when the goods are put on rail or that the payment of freight shall be the obligation of the price. And it did not make any difference to this position that the freight was not initially paid by the appellant but was paid by the purchaser and given credit for against the agreed freight inclusive price in the invoice.Now, in the light of this discussion, let us turn to examine the facts of the present appeals. The Control order here becomes very material. It is a statutory order having binding force and effect and it must govern the transactions of sale of cement entered into by the assessee with the purchasers. The Control order is designed to ensure availability of cement at a uniform price throughout India irrespective of the distance from the place of manufacture and clause (8) provides a maximum price of Rs. 214.65 per metric tonne F.O.R. destination railway station at which a producer may sell cement manufactured by him. It was at this maximum price of Rs. 214.65 permetric tonne F.O.R. destination railway station that, in pursuance of this clause, the assessee sold cement to various purchasers. The price was clearly inclusive of freight. But the question is: who, under the terms of the contract, was liable to pay the freight, the assessee or the purchaser ? Was the contract one for delivery at destination railway station or was it a contract in which delivery to the purchaser would be complete as soon as the goods are put on rail at the place of despatch ? The answer to this question would clearly be in favour of the assessee if we have regard only to the terms and conditions of the contract without taking into account the provisions of the Control order. Clause (8) of the "General Terms and Conditions of Supply" incorporated in the contract provided that once the goods are handed over to the railway and a railway receipt is obtained, the responsibility of the assessee shall cease and the risk shall pass to the purchaser and, therefore, if there is nondelivery or shortage or delay in. delivery, it is the purchaser who, according to this clause, shall be entitled: to make a claim against the railway. If there were overcharge of freight then again under clause (11) it is not the assessee but the purchaser who would be entitled to lodge a claim with the railway authorities. The specimen invoice produced by the assessee also made it clear that the responsibility of the assessee for shortage, loss, delay or damage shall cease as soon as the goods are delivered at the Work Siding and all such claims may be preferred by the purchaser against the railway and in case excess freight has been charged, the purchaser shall be entitled "to lodge claim with the railways". It would, thus, be seen that according to these provisions the delivery of the goods to the purchaser would be complete as soon as they are put on rail at the Work Siding and the risk then passes to the purchaser and payment of freight would be the responsibility of the purchaser. This would by the position apart from the provisions of the Control order and on this position, there can b e doubt, for reasons already discussed, that the amount of freight would not form part of the sale price. But we have to consider the impact of the provisions of the Control order, for these provisions having statutory force and authority have. riding effect and the terms and conditions of the contract to the extent to which they conflict with these provisions must be held to be excluded. Let us, therefore, examine the impact of the relevant provisions of the Control order on the terms and conditions of the contract.It is clear from the scheme of the Control order that the price chargeable by a producer is contemplated to be Rs. 214.65 per metric tonne F.O.R. destination railway station. This of course is the maximum price at which a producer may sell cement and theoretically, or course, there is nothing to prevent him from selling it at a lower price, but it is assumed by the Central Government that in a sellers market where there is scarcity of supply, the producer will sell at the maximum price permitted to him under the Control order and that is the basis on which the machinery of Cement Regulation Account is worked out in the Control order. This machinery would become unworkable and at the least it would re quire the Central Government to subsidies the Cement Regulation Account in a large way, if every producer were to sell cement at a price lower than Rs. 214.65 per metric tonne F.O.R. destination railway station. It is, therefore, obvious that though the Control order merely provides the maximum price of Rs. 214.65 per metric tonne F.o.R. destination railway station at which a producer may sell cement, leaving it theoretically open to him to sell it at a lower price, the basic assumption underlying the Control order is that every producer will sell at the maximum price. And in fact, in both the cases before us, every transaction of sale of cement by the assessee was at the price of Rs. 214.65 per metric tonne F.o.R destination railway station. This, however, by itself would not be determinative of the controversy because the question would remain as to who, between the assessee and the purchaser, is liable to pay the freight and that requires us to consider whether there is anything in the Control Order which overrides the relevant provisions of the contract bearing on this question and by necessary implication, exclude them. Clause (9) clearly contemplates that the F.o.R. destination railway station price would be realised by the producer, for the excess of such price over the retention price and selling agency commission is required to be paid over by the producer to the controller in the Cement Regulation Account. The amount of freight has, therefore, to be realised by the producer from the purchaser and that postulates that it is the producer who pays the freight to the railway authorities. The proviso to clause (9) makes this doubly clear by providing that "the expenditure incurred by the producer onl bereimbursedto the producer" and again clause (11) uses the expression"paying of equalising the expenditure incurred by the producer on freight". It is, therefore, clear that under the scheme of the Control order the freight is paid by the producer and he then recovers it from the purchaser. But that does not conclude the controversy. The question still remains: When the producer pays the freight, does he do so because, as between him and the purchaser, He is liable to pay the freight and he then recovers it as part of the price or the obligation to pay the freight is on the purchaser and the producer pays it on behalf of the purchaser and then recovers it by way of reimbursement.We are of the view that the former, and not the latter, represents the correct legal position. If the obligation to pay the freight were on the purchaser and in fact the purchaser paid the freight, as happen ed in both the cases before us i n respect of every transaction of sale of cement, the amount of freight would obviously be deducted from the F.O.R. destination railway station price in the invoice and only the balance would be realised by the assessee. There would be no question of the assessee realising the amount of freight from the purchaser because the purchaser would have paid the freight in discharge of his own liability and the assessee would have no claim to recover it from the purchaser. Then how would the terms of clause ( 9 ), proviso to that clause and Clause (11) of the Control order be satisfied ? How would it be possible to give effect to clause (9) if what is realised by the assessee is not the F.O.R. destination railway station price but that price less the amount of freight? How would the assessee claim to be entitled to bereimbursedunder the proviso to clause (9) if he has not incurred any expenditure on the freight? The entire statutory scheme would become unworkable. The scheme of the Control order clearly proceeds on the basis that the flight is payable by the producer and the recovers it from the purchaser at part the F.O.R. destination railway station price. The provision in the contract that the delivery to the purchasershallbe complete as soon as the goods are put on railand payment of the freightshallbe the responsibility of the purchaseris wholly inconsistent with the scheme of the Control order and must be held to be excluded by it. The Control order is paramount: it has overriding effect and if it stipulates that the freightshallbe payable by theproducer, such stipulation must be prevail, notwithstanding any term or condition the contract to the contrary. The conclusion is, therefore, inevitable,that the amount of freight forms part of the sale price within the meaning of the first part of the definition.This renders it unnecessary to consider the second part of the definition, but the latter clause of the second p art was strongly relied upon on behalf of the assessee to support the exclusion of the amount of freight from sale price and hence we must proceed to consider it. The second part enacts an inclusive clause. It says that sale price includes "any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged." Therefore, any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof is to be regarded as part of sale price, even if it does not fall within the first part of the definition. But there is an exception carved out of this inclusion. Not all sums charged for something done by the dealer in respect of the goods at the time of or therefore the delivery thereof are covered by the inclusive clause. The cost of freight or delivery or the cost of installation certainly represents an amount charged for transportation or installation of the goods at the time of or before the delivery thereof and would, therefore, fall within the inclusive clause on its plain terms but it is taken out by the exclusion clause, "other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged". This exclusion clause does not operate as an exception to the first part of the definition. It mere ly enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of sale price`. But if the State is able to show that the particular amount falls within the first part of the definition and is, therefore, part of the sale price, the exclusion clause cannot avail the assessee to take the amount in question out of the definition of sale price. Here on the view taken by us, the amount of freight forms part of the sale price within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. We may point out that eve n if the exclusion clause were read as an exception to the first part of the definition which, as we have pointed out, cannot be done, it cannot avail the assessee. It is only where the cost of freight is separately charged that it would fall within t he exclusion clause and in the context of the definition as a whole, it is obvious that the expression "cost of freight is separately charged ` is used in contradistinction to a case where the cost of freight is not separately charged but is included in the price. It is not intended to apply to a case where the cost of freight is part of the price but the dealer chooses to split up the price and claim the amount of freight as a separate item. in the invoice. Where the cost of freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part have no applicationBefore we part with these appeals we think it necessary to advert to one rather unusual circumstance which has caused some anxiety to us. We were told by the learned counsel appearing on behalf of the assessee and that was not disputed on behalf of the State that the assessee had entered into a large number of transactions of sale of cement with the Central Government through the Director General of Supplies and Disposals and when the assessee claimed to recover the amount of sales tax in respect of these transactions from the Central Government on the basis that freight was part of sale price`, the Director General of Supplies and Disposals pointed out to the assessee that the Law Department of the Government of India had advised them that freight was not part of sale price within the meaning of the definition of that term and hence no sales tax wouldbe payable by theassessee on the amount of freight and the assessee was, therefore, not justified in claiming to recover the amount of sales tax from the Central Government. The assessee, in view of this statement made on behalf of the Central Government, did not press its claim to recover the amount of sales tax on the freight component of the price from the Central Government. Now, it appears clearly from this judgment that the opinion given by the Law Department of the Government of India was not correct and the statement made on behalf of the Government of India that no sales taxwillbe payable by theassessee on the amount of freight was unjustified. There can be no doubt that this statement misled the assessee into not claiming the amount ofx on the freight component of the price from the Central Government. | 0 | 8,042 | 5,525 | ### 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:
view that the former, and not the latter, represents the correct legal position. If the obligation to pay the freight were on the purchaser and in fact the purchaser paid the freight, as happen ed in both the cases before us i n respect of every transaction of sale of cement, the amount of freight would obviously be deducted from the F.O.R. destination railway station price in the invoice and only the balance would be realised by the assessee. There would be no question of the assessee realising the amount of freight from the purchaser because the purchaser would have paid the freight in discharge of his own liability and the assessee would have no claim to recover it from the purchaser. Then how would the terms of clause ( 9 ), proviso to that clause and Clause (11) of the Control order be satisfied ? How would it be possible to give effect to clause (9) if what is realised by the assessee is not the F.O.R. destination railway station price but that price less the amount of freight? How would the assessee claim to be entitled to be reimbursed under the proviso to clause (9) if he has not incurred any expenditure on the freight? The entire statutory scheme would become unworkable. The scheme of the Control order clearly proceeds on the basis that the flight is payable by the producer and the recovers it from the purchaser at part the F.O.R. destination railway station price. The provision in the contract that the delivery to the purchaser shall be complete as soon as the goods are put on rail and payment of the freight shall be the responsibility of the purchaser is wholly inconsistent with the scheme of the Control order and must be held to be excluded by it. The Control order is paramount: it has overriding effect and if it stipulates that the freight shall be payable by the producer, such stipulation must be prevail, notwithstanding any term or condition the contract to the contrary. The conclusion is, therefore, inevitable, - that the amount of freight forms part of the sale price within the meaning of the first part of the definition.This renders it unnecessary to consider the second part of the definition, but the latter clause of the second p art was strongly relied upon on behalf of the assessee to support the exclusion of the amount of freight from sale price and hence we must proceed to consider it. The second part enacts an inclusive clause. It says that sale price includes "any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged." Therefore, any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof is to be regarded as part of sale price, even if it does not fall within the first part of the definition. But there is an exception carved out of this inclusion. Not all sums charged for something done by the dealer in respect of the goods at the time of or therefore the delivery thereof are covered by the inclusive clause. The cost of freight or delivery or the cost of installation certainly represents an amount charged for transportation or installation of the goods at the time of or before the delivery thereof and would, there- fore, fall within the inclusive clause on its plain terms but it is taken out by the exclusion clause, "other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged". This exclusion clause does not operate as an exception to the first part of the definition. It mere ly enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of sale price`. But if the State is able to show that the particular amount falls within the first part of the definition and is, therefore, part of the sale price, the exclusion clause cannot avail the assessee to take the amount in question out of the definition of sale price. Here on the view taken by us, the amount of freight forms part of the sale price within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. We may point out that eve n if the exclusion clause were read as an exception to the first part of the definition which, as we have pointed out, cannot be done, it cannot avail the assessee. It is only where the cost of freight is separately charged that it would fall within t he exclusion clause and in the context of the definition as a whole, it is obvious that the expression "- cost of freight is separately charged ` is used in contradistinction to a case where the cost of freight is not separately charged but is included in the price. It is not intended to apply to a case where the cost of freight is part of the price but the dealer chooses to split up the price and claim the amount of freight as a separate item. in the invoice. Where the cost of freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part have no application.
### Response:
0
### Explanation:
inconsistent with the scheme of the Control order and must be held to be excluded by it. The Control order is paramount: it has overriding effect and if it stipulates that the freightshallbe payable by theproducer, such stipulation must be prevail, notwithstanding any term or condition the contract to the contrary. The conclusion is, therefore, inevitable,that the amount of freight forms part of the sale price within the meaning of the first part of the definition.This renders it unnecessary to consider the second part of the definition, but the latter clause of the second p art was strongly relied upon on behalf of the assessee to support the exclusion of the amount of freight from sale price and hence we must proceed to consider it. The second part enacts an inclusive clause. It says that sale price includes "any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged." Therefore, any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof is to be regarded as part of sale price, even if it does not fall within the first part of the definition. But there is an exception carved out of this inclusion. Not all sums charged for something done by the dealer in respect of the goods at the time of or therefore the delivery thereof are covered by the inclusive clause. The cost of freight or delivery or the cost of installation certainly represents an amount charged for transportation or installation of the goods at the time of or before the delivery thereof and would, therefore, fall within the inclusive clause on its plain terms but it is taken out by the exclusion clause, "other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged". This exclusion clause does not operate as an exception to the first part of the definition. It mere ly enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of sale price`. But if the State is able to show that the particular amount falls within the first part of the definition and is, therefore, part of the sale price, the exclusion clause cannot avail the assessee to take the amount in question out of the definition of sale price. Here on the view taken by us, the amount of freight forms part of the sale price within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. We may point out that eve n if the exclusion clause were read as an exception to the first part of the definition which, as we have pointed out, cannot be done, it cannot avail the assessee. It is only where the cost of freight is separately charged that it would fall within t he exclusion clause and in the context of the definition as a whole, it is obvious that the expression "cost of freight is separately charged ` is used in contradistinction to a case where the cost of freight is not separately charged but is included in the price. It is not intended to apply to a case where the cost of freight is part of the price but the dealer chooses to split up the price and claim the amount of freight as a separate item. in the invoice. Where the cost of freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part have no applicationBefore we part with these appeals we think it necessary to advert to one rather unusual circumstance which has caused some anxiety to us. We were told by the learned counsel appearing on behalf of the assessee and that was not disputed on behalf of the State that the assessee had entered into a large number of transactions of sale of cement with the Central Government through the Director General of Supplies and Disposals and when the assessee claimed to recover the amount of sales tax in respect of these transactions from the Central Government on the basis that freight was part of sale price`, the Director General of Supplies and Disposals pointed out to the assessee that the Law Department of the Government of India had advised them that freight was not part of sale price within the meaning of the definition of that term and hence no sales tax wouldbe payable by theassessee on the amount of freight and the assessee was, therefore, not justified in claiming to recover the amount of sales tax from the Central Government. The assessee, in view of this statement made on behalf of the Central Government, did not press its claim to recover the amount of sales tax on the freight component of the price from the Central Government. Now, it appears clearly from this judgment that the opinion given by the Law Department of the Government of India was not correct and the statement made on behalf of the Government of India that no sales taxwillbe payable by theassessee on the amount of freight was unjustified. There can be no doubt that this statement misled the assessee into not claiming the amount ofx on the freight component of the price from the Central Government.
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PARAS RAM & ORS Vs. STATE OF HARYANA & ORS | Kurian Joseph, J. 1. The challenge in these appeals is to the Judgment dated 02.08.2005 passed by the High Court of Punjab and Haryana in Writ Petition No. 11526 of 1994. The issue pertains to the selection and appointment of Patwaris, initiated in the year 1992. The High Court, as per the impugned order, set aside the selection initiated for filling up 1248 Patwaris. However, liberty was granted to all the parties before the High Court to participate in the fresh selection with a relaxation in age. Some of the similarly situated appellants were before this Court leading to the Judgment of this Court dated 28.09.2007 passed in Ram Avtar Patwari & Ors. Vs. State of Haryana and Ors, (2007) 10 SCC 94 , wherein the entire matters were remitted to the High Court for fresh consideration. 2. We find that the High Court, subsequently, has disposed of the petitions by Judgment dated 11.02.2009 passed in CWP No. 11526 of 1994 (O & M). It is seen from the said Judgment dated 11.02.2009 that the High Court has taken a pragmatic view in permitting the 1248 Patwaris originally selected to continue. However, relaxation was given for others to participate in the fresh selection. We are informed that two subsequent selections have been conducted. It is not clear as to whether the appellants have participated in those selections. 3. Mr. Manoj Swarup, learned counsel appearing for the appellants, has made a vehement plea that the appellants having come up before this Court challenging the Judgment dated 02.08.2005, their cases should be separately considered. We are afraid, the contention cannot be appreciated. The Judgment dated 02.08.2005 has been upset by the Judgment of this Court dated 28.09.2007 in Ram Avtar Patwari . The High Court has, pursuant to the remand, disposed of the cases afresh by Judgment dated 11.02.2009. There is no challenge to that Judgment. | 0[ds]2. We find that the High Court, subsequently, has disposed of the petitions by Judgment dated 11.02.2009 passed in CWP No. 11526 of 1994 (O & M). It is seen from the said Judgment dated 11.02.2009 that the High Court has taken a pragmatic view in permitting the 1248 Patwaris originally selected to continue. However, relaxation was given for others to participate in the fresh selection. We are informed that two subsequent selections have been conducted. It is not clear as to whether the appellants have participated in those selections.We are afraid, the contention cannot be appreciated. The Judgment dated 02.08.2005 has been upset by the Judgment of this Court dated 28.09.2007 in Ram Avtar Patwari . The High Court has, pursuant to the remand, disposed of the cases afresh by Judgment dated 11.02.2009. There is no challenge to that Judgment. | 0 | 355 | 163 | ### 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:
Kurian Joseph, J. 1. The challenge in these appeals is to the Judgment dated 02.08.2005 passed by the High Court of Punjab and Haryana in Writ Petition No. 11526 of 1994. The issue pertains to the selection and appointment of Patwaris, initiated in the year 1992. The High Court, as per the impugned order, set aside the selection initiated for filling up 1248 Patwaris. However, liberty was granted to all the parties before the High Court to participate in the fresh selection with a relaxation in age. Some of the similarly situated appellants were before this Court leading to the Judgment of this Court dated 28.09.2007 passed in Ram Avtar Patwari & Ors. Vs. State of Haryana and Ors, (2007) 10 SCC 94 , wherein the entire matters were remitted to the High Court for fresh consideration. 2. We find that the High Court, subsequently, has disposed of the petitions by Judgment dated 11.02.2009 passed in CWP No. 11526 of 1994 (O & M). It is seen from the said Judgment dated 11.02.2009 that the High Court has taken a pragmatic view in permitting the 1248 Patwaris originally selected to continue. However, relaxation was given for others to participate in the fresh selection. We are informed that two subsequent selections have been conducted. It is not clear as to whether the appellants have participated in those selections. 3. Mr. Manoj Swarup, learned counsel appearing for the appellants, has made a vehement plea that the appellants having come up before this Court challenging the Judgment dated 02.08.2005, their cases should be separately considered. We are afraid, the contention cannot be appreciated. The Judgment dated 02.08.2005 has been upset by the Judgment of this Court dated 28.09.2007 in Ram Avtar Patwari . The High Court has, pursuant to the remand, disposed of the cases afresh by Judgment dated 11.02.2009. There is no challenge to that Judgment.
### Response:
0
### Explanation:
2. We find that the High Court, subsequently, has disposed of the petitions by Judgment dated 11.02.2009 passed in CWP No. 11526 of 1994 (O & M). It is seen from the said Judgment dated 11.02.2009 that the High Court has taken a pragmatic view in permitting the 1248 Patwaris originally selected to continue. However, relaxation was given for others to participate in the fresh selection. We are informed that two subsequent selections have been conducted. It is not clear as to whether the appellants have participated in those selections.We are afraid, the contention cannot be appreciated. The Judgment dated 02.08.2005 has been upset by the Judgment of this Court dated 28.09.2007 in Ram Avtar Patwari . The High Court has, pursuant to the remand, disposed of the cases afresh by Judgment dated 11.02.2009. There is no challenge to that Judgment.
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ANANDRAO RAMCHANDRA SALUNKE Vs. LIFE INSURANCE CORPORATION OF INDIA | the company in advance to make up the deficiency in later premiums to cover the annual cost of insurance, instead of being retained by the assured and paid by him to the company in the shape of greatly increased premiums, when the risk is greatest. It is the net reserve required by law to be kept by the company for the benefit of the assured, and to be maintained to the credit of the policy. So long as the policy remains in force the company has not practically any beneficial interest in it, except as its custodian, with the obligation to maintain it unimpaired and suitably invested for the benefit of the insured. This is the practical, though not the legal, relation of the company to this fund. Upon the surrender of the policy before the death of the assured, the company, to be relieved from all responsibility for the increased risk, which is represented by this accumulating reserve, could well afford to surrender a considerable part of it to the assured, or his representative. A return of a part in some form or other is now usually made… 15. The issue before the Court is as to whether the provisions of Section 113 of the Act and condition 7 of the policy document were duly observed by the insurer. Section 113(1) is in two parts: (i) A policy of life insurance under which the whole of the benefits become payable either on the occurrence of a contingency which is bound to happen or at fixed intervals, acquires a surrender value if all the premiums have been paid for at least three consecutive years. The surrender value of any subsisting bonus already attached to the policy is to be added to the guaranteed surrender value; (ii) Every such policy which is issued by an insurer must show the guaranteed surrender value of the policy at the close of each year after the second year of its currency or at the close of each period of three years throughout the currency of the policy.16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. The requirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette. 17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed. 18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,250. 19. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest. | 1[ds]11. There are popular misconceptions about the concept of surrender value in the sphere of life insurance. In a policy of fire insurance, a policy holder has no expectation of a surrender value. In contrast, a holder of a policy of life insurance may believe (as the appellant in this case does) that their surrender value will be equal to the total amount paid as premium. This expectation is misconceived. Simply put, life insurance operates on the basis of the law of averages. Premium is collected from all policy holders in order to create a common fund. Payouts from the fund are received only by those who suffer the peril which is insured. The economic loss suffered by few is divided amongst many. Premia are fixed by the insurer on the basis of expected mortality rates. Hypothetically speaking, if mortality rates of all individuals were to be equal irrespective of age and everyone paid the same premium, the discontinuance of a policy during its term would not entitle the insured to a surrender value since the common fund would be depleted on a regular basis. In reality, the mortality rates increase with age. Actuarial tables provide a guide to the insurer. Hence, when an insurer initially collects premium from individuals of a younger age, the amount it collects is higher than the amount it pays out towards claims. The difference between them is the reserve. Thus if a policy holder wishes to discontinue a policy before the end of the term, they will only be entitled to their share of the reserve as a surrender value13. Since the value of the reserve is the amount which the insurer collects as premium from policy holders from which it deducts the amount of the claims it pays out, the surrender value payable to a policy holder can never be equal to the premia paid by them.16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. Therequirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,25019. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest. | 1 | 4,060 | 1,051 | ### 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:
the company in advance to make up the deficiency in later premiums to cover the annual cost of insurance, instead of being retained by the assured and paid by him to the company in the shape of greatly increased premiums, when the risk is greatest. It is the net reserve required by law to be kept by the company for the benefit of the assured, and to be maintained to the credit of the policy. So long as the policy remains in force the company has not practically any beneficial interest in it, except as its custodian, with the obligation to maintain it unimpaired and suitably invested for the benefit of the insured. This is the practical, though not the legal, relation of the company to this fund. Upon the surrender of the policy before the death of the assured, the company, to be relieved from all responsibility for the increased risk, which is represented by this accumulating reserve, could well afford to surrender a considerable part of it to the assured, or his representative. A return of a part in some form or other is now usually made… 15. The issue before the Court is as to whether the provisions of Section 113 of the Act and condition 7 of the policy document were duly observed by the insurer. Section 113(1) is in two parts: (i) A policy of life insurance under which the whole of the benefits become payable either on the occurrence of a contingency which is bound to happen or at fixed intervals, acquires a surrender value if all the premiums have been paid for at least three consecutive years. The surrender value of any subsisting bonus already attached to the policy is to be added to the guaranteed surrender value; (ii) Every such policy which is issued by an insurer must show the guaranteed surrender value of the policy at the close of each year after the second year of its currency or at the close of each period of three years throughout the currency of the policy.16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. The requirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette. 17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed. 18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,250. 19. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest.
### Response:
1
### Explanation:
11. There are popular misconceptions about the concept of surrender value in the sphere of life insurance. In a policy of fire insurance, a policy holder has no expectation of a surrender value. In contrast, a holder of a policy of life insurance may believe (as the appellant in this case does) that their surrender value will be equal to the total amount paid as premium. This expectation is misconceived. Simply put, life insurance operates on the basis of the law of averages. Premium is collected from all policy holders in order to create a common fund. Payouts from the fund are received only by those who suffer the peril which is insured. The economic loss suffered by few is divided amongst many. Premia are fixed by the insurer on the basis of expected mortality rates. Hypothetically speaking, if mortality rates of all individuals were to be equal irrespective of age and everyone paid the same premium, the discontinuance of a policy during its term would not entitle the insured to a surrender value since the common fund would be depleted on a regular basis. In reality, the mortality rates increase with age. Actuarial tables provide a guide to the insurer. Hence, when an insurer initially collects premium from individuals of a younger age, the amount it collects is higher than the amount it pays out towards claims. The difference between them is the reserve. Thus if a policy holder wishes to discontinue a policy before the end of the term, they will only be entitled to their share of the reserve as a surrender value13. Since the value of the reserve is the amount which the insurer collects as premium from policy holders from which it deducts the amount of the claims it pays out, the surrender value payable to a policy holder can never be equal to the premia paid by them.16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. Therequirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,25019. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest.
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Mukhtiar Singh Vs. State Of Punjab | nip of hand-wash of the appellant-accused was also deposited with him on 06.09.1996 along with other case properties and he made the entry thereof in the relevant register. Though he was not cross-examined on this aspect, it was he who made the entry and he should have been confronted with the said entry if learned counsel for the appellant-accused thought that there was some discrepancy in it and if the appellant-accused wanted to take benefit thereof. In fact, there was no such discrepancy as deposit of sealed nip of hand-wash of the appellant-accused has been mentioned in the register. 15. The premise to be established on the facts for drawing the presumption is that there was demand, payment and acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. In the case on hand, from the facts on record, it is proved beyond doubt that the appellant-accused asked for the money to do a particular act and actually accepted the same. He was caught red-handed and, therefore, we do not find any reason to disagree with the findings of the trial court and the High Court. 16. In a decision of this Court in State of Punjab v. Madan Mohan Lal Verma (2013) 14 SCC 153 it was held as under:- "11.The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab, T. Subramanian v. State of T.N., State of Kerala v. C.P. Rao and Mukut Bihari v. State of Rajasthan.)" 17. On the same lines, in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 , this Court has held as under:- "23. We do not have the slightest hesitation in accepting the broad submission of Mr Rai that demand of illegal gratification is a sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the Act within the mischief of Sections 7 and 13(1) (d)(ii) of the Act are satisfied." 18. It is a settled principle of law laid down by this Court in a number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence then conviction must follow under Section 7 of the PC Act against the accused. Indeed, these twin requirements are sine qua non for proving the offence under Section 7 of the PC Act. In the light of our own re-appraisal of the evidence and keeping in view the abovesaid principle in mind, we have also come to a conclusion that twin requirements of demand and acceptance of illegal gratification were proved in the case on hand on the basis of evidence adduced by the prosecution against the appellant and hence the appellant was rightly convicted and sentenced for the offences punishable under Section 7 read with Section 13(1)(d) and Section 13(2) of the Act. Conclusion: 19. On the face of the specific and positive evidence which cannot be said to be inherently improbable, the plea of the appellant-accused that the prosecution case is fit to be rejected on the ground of improbability does not appeal to us. The courts below, in our opinion, have rightly rejected the defence evidence. Therefore, in our opinion, the prosecution in this case has proved the guilt of the appellant-accused beyond all reasonable doubt. | 0[ds]11. There is no denying the fact that on 06.09.1996, a trap was laid on the complaint filed by the complainant and theded by the Vigilance Department, Patiala. Due procedure was followed while conducting the trap wherein Bakhshish Singhwas nominated as a shadow witness who accompanied the), who was handed over the currency notes of denomination of Rs. 500/and Rs. 100/duly smeared with phenolphthalein powder and after recording their numbers. When both of them went inside the office, thewho was sitting on a chair, on seeing them, asked the complainant if he had brought the money. Whenreplied positively, thetook from him six hundred rupees and put them in the right hand side upper drawer of his table and handed over to him the copy of Jamabandi after obtaining his signature on a Register where the complainant signed and put the date as 06.09.1996. The shadow witness came out of the office of the accused and signaled in a specific manner. Thereupon, DSP Amar Nath along with other members of the raiding party went inside the office of the accused. A glass of water was requisitioned and sodium carbonate was added to the water. When fingers of both the hands of the accused were made to be washed in the solution, the colour of the solution turned light pink and the numbers of the currency notes also tallied and they were taken into possession by investigating team. After carrying out necessary formalities, the accused wastrue witness can possibly escape from making some discrepant details. An objection was raised by learned counsel for thethat the copy of the Jamabandi stood prepared on 04.09.1996 and thus, there was no occasion for theto ask for the illegal gratification on 06.09.1996. The best piece of evidence to establish this point was the Ujrat Register wherein signatures of the complainant were obtained as a token of delivery of copy of Jamabandi but no attempt was made on behalf of theto get the said Register produced on record. The said entry bears the date as 04.09.1996 in the relevant column but signatures of the complainant regarding receipt thereof were obtained on the said entry by theat the time of trap, that is, on 06.09.1996. Even otherwise, the demand, acceptance and recovery of the incriminating currency notes from the accused have been sufficiently proved. The objection that reliability of the trap was impaired as the solution collected in the phial was not sent to the Chemical Examiner is too puerile forthe case on hand, there is no evidence on record to show that the investigating officer shook hands with theor caught his hands and, as such there was no occasion for the phenolphthalein powder being transferred from the hands of the investigating officer to those of the accused. Even otherwise, the recovery of the tainted currency notes from the custody of thehas been proved by direct evidence.The premise to be established on the facts for drawing the presumption is that there was demand, payment and acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. In the case on hand, from the facts on record, it is proved beyond doubt that theasked for the money to do a particular act and actually accepted the same. He was caughtand, therefore, we do not find any reason to disagree with the findings of the trial court and the High Court.It is a settled principle of law laid down by this Court in a number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence then conviction must follow under Section 7 of the PC Act against the accused. Indeed, these twin requirements are sine qua non for proving the offence under Section 7 of the PC Act. In the light of our ownof the evidence and keeping in view the abovesaid principle in mind, we have also come to a conclusion that twin requirements of demand and acceptance of illegal gratification were proved in the case on hand on the basis of evidence adduced by the prosecution against the appellant and hence the appellant was rightly convicted and sentenced for the offences punishable under Section 7 read with Section 13(1)(d) and Section 13(2) of the Act.On the face of the specific and positive evidence which cannot be said to be inherently improbable, the plea of thethat the prosecution case is fit to be rejected on the ground of improbability does not appeal to us. The courts below, in our opinion, have rightly rejected the defence evidence. Therefore, in our opinion, the prosecution in this case has proved the guilt of thebeyond all reasonable doubt. | 0 | 4,679 | 993 | ### 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:
nip of hand-wash of the appellant-accused was also deposited with him on 06.09.1996 along with other case properties and he made the entry thereof in the relevant register. Though he was not cross-examined on this aspect, it was he who made the entry and he should have been confronted with the said entry if learned counsel for the appellant-accused thought that there was some discrepancy in it and if the appellant-accused wanted to take benefit thereof. In fact, there was no such discrepancy as deposit of sealed nip of hand-wash of the appellant-accused has been mentioned in the register. 15. The premise to be established on the facts for drawing the presumption is that there was demand, payment and acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. In the case on hand, from the facts on record, it is proved beyond doubt that the appellant-accused asked for the money to do a particular act and actually accepted the same. He was caught red-handed and, therefore, we do not find any reason to disagree with the findings of the trial court and the High Court. 16. In a decision of this Court in State of Punjab v. Madan Mohan Lal Verma (2013) 14 SCC 153 it was held as under:- "11.The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab, T. Subramanian v. State of T.N., State of Kerala v. C.P. Rao and Mukut Bihari v. State of Rajasthan.)" 17. On the same lines, in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 , this Court has held as under:- "23. We do not have the slightest hesitation in accepting the broad submission of Mr Rai that demand of illegal gratification is a sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the Act within the mischief of Sections 7 and 13(1) (d)(ii) of the Act are satisfied." 18. It is a settled principle of law laid down by this Court in a number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence then conviction must follow under Section 7 of the PC Act against the accused. Indeed, these twin requirements are sine qua non for proving the offence under Section 7 of the PC Act. In the light of our own re-appraisal of the evidence and keeping in view the abovesaid principle in mind, we have also come to a conclusion that twin requirements of demand and acceptance of illegal gratification were proved in the case on hand on the basis of evidence adduced by the prosecution against the appellant and hence the appellant was rightly convicted and sentenced for the offences punishable under Section 7 read with Section 13(1)(d) and Section 13(2) of the Act. Conclusion: 19. On the face of the specific and positive evidence which cannot be said to be inherently improbable, the plea of the appellant-accused that the prosecution case is fit to be rejected on the ground of improbability does not appeal to us. The courts below, in our opinion, have rightly rejected the defence evidence. Therefore, in our opinion, the prosecution in this case has proved the guilt of the appellant-accused beyond all reasonable doubt.
### Response:
0
### Explanation:
11. There is no denying the fact that on 06.09.1996, a trap was laid on the complaint filed by the complainant and theded by the Vigilance Department, Patiala. Due procedure was followed while conducting the trap wherein Bakhshish Singhwas nominated as a shadow witness who accompanied the), who was handed over the currency notes of denomination of Rs. 500/and Rs. 100/duly smeared with phenolphthalein powder and after recording their numbers. When both of them went inside the office, thewho was sitting on a chair, on seeing them, asked the complainant if he had brought the money. Whenreplied positively, thetook from him six hundred rupees and put them in the right hand side upper drawer of his table and handed over to him the copy of Jamabandi after obtaining his signature on a Register where the complainant signed and put the date as 06.09.1996. The shadow witness came out of the office of the accused and signaled in a specific manner. Thereupon, DSP Amar Nath along with other members of the raiding party went inside the office of the accused. A glass of water was requisitioned and sodium carbonate was added to the water. When fingers of both the hands of the accused were made to be washed in the solution, the colour of the solution turned light pink and the numbers of the currency notes also tallied and they were taken into possession by investigating team. After carrying out necessary formalities, the accused wastrue witness can possibly escape from making some discrepant details. An objection was raised by learned counsel for thethat the copy of the Jamabandi stood prepared on 04.09.1996 and thus, there was no occasion for theto ask for the illegal gratification on 06.09.1996. The best piece of evidence to establish this point was the Ujrat Register wherein signatures of the complainant were obtained as a token of delivery of copy of Jamabandi but no attempt was made on behalf of theto get the said Register produced on record. The said entry bears the date as 04.09.1996 in the relevant column but signatures of the complainant regarding receipt thereof were obtained on the said entry by theat the time of trap, that is, on 06.09.1996. Even otherwise, the demand, acceptance and recovery of the incriminating currency notes from the accused have been sufficiently proved. The objection that reliability of the trap was impaired as the solution collected in the phial was not sent to the Chemical Examiner is too puerile forthe case on hand, there is no evidence on record to show that the investigating officer shook hands with theor caught his hands and, as such there was no occasion for the phenolphthalein powder being transferred from the hands of the investigating officer to those of the accused. Even otherwise, the recovery of the tainted currency notes from the custody of thehas been proved by direct evidence.The premise to be established on the facts for drawing the presumption is that there was demand, payment and acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. In the case on hand, from the facts on record, it is proved beyond doubt that theasked for the money to do a particular act and actually accepted the same. He was caughtand, therefore, we do not find any reason to disagree with the findings of the trial court and the High Court.It is a settled principle of law laid down by this Court in a number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence then conviction must follow under Section 7 of the PC Act against the accused. Indeed, these twin requirements are sine qua non for proving the offence under Section 7 of the PC Act. In the light of our ownof the evidence and keeping in view the abovesaid principle in mind, we have also come to a conclusion that twin requirements of demand and acceptance of illegal gratification were proved in the case on hand on the basis of evidence adduced by the prosecution against the appellant and hence the appellant was rightly convicted and sentenced for the offences punishable under Section 7 read with Section 13(1)(d) and Section 13(2) of the Act.On the face of the specific and positive evidence which cannot be said to be inherently improbable, the plea of thethat the prosecution case is fit to be rejected on the ground of improbability does not appeal to us. The courts below, in our opinion, have rightly rejected the defence evidence. Therefore, in our opinion, the prosecution in this case has proved the guilt of thebeyond all reasonable doubt.
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Commissioner of Wealth Tax, Madras Vs. K.S.N. Bhatt | explain why we say that a gift tax liability crystallises on the last day of the pertinent previous year under the Gift Tax Act. Section 3 of the Gift Tax Act levies gift tax in respect of the gifts made by a person during the previous year at the rates specified in the Schedule. Section 13 provides for the filing of a return of the gifts made during the previous year. Section 15 requires the Gift Tax Officer to assess the value of the taxable gifts made during the previous year and determine the amount of gift tax payable. The gift tax so payable is envisaged as a single sum in respect of the totality of the gifts made by the assessee during the previous year. Moreover, the Schedule prescribes graduated scales of rates of gift tax in ascending order. All these considerations point to the conclusion that the liability to gift tax crystallises, not in relation to each gift individually, but in relation to the assessed aggregate value of the gifts made during the previous year. In other words, a gift tax liability crystallises on the last day of the previous year. Now the quantification of the income tax, wealth tax or gift tax liability is determined by a corresponding assessment order, and even if the assessment order is made after the valuation date relevant to the wealth tax assessment in which the claim to deduction is made, there is a debt owed by th e assessee on the valuation date. The quantification effected by an assessment order may be varied as the income tax, wealth tax and gift tax case is carried in appeal to the Appellate Assistant Commissioner, or thereafter to the Appellate Tribunal, and indeed even in reference later to the High Court or subsequent appeal to this Court. It is the quantification of the tax liability by the ultimate judicial authority which will determine the amount of the debt owed by the assessee on t he valuation date. So long as such ultimate determination indicates the existence of a positive tax liability, it must be held that there is a debt owed by the assessee on the valuation date even though such determination may be subsequent in point of time to the valuation date. If, however, it is found on such ultimate determination that there is no tax liability, it cannot be said that merely because originally a tax liability had been determined and stood existing on the valuation date there was a debt owed by the assessee. The fact cannot be ignored that when the case was carried in appeal or reference it was found by the superior authority that in fact there was no tax liability at all. That final determination, even though rendered after the valuation date, directly relates to the question whether on the valuation date there was a debt owed by the assessee. If the finding is that there was no tax liability, it must be held that there was no debt owed by the asses see on the valuation date. In this regard, we do not agree with what has been said by the Madras High Court to the contrary in P.A. Appavoo Pillai (supra). We are of opinion that the income tax liability for the assessment year 1965-66 of Rs. 72, 399 and the gift tax liability for the assessment year 1965-66 of Rs. 1, 13, 650, subsequently set aside on appeal after the valuation dates, cannot be regarded as debts owed by the assessee on the relevant valuation dates.Towards the close of its order the Appellate Tribunal pointed to the fact that the different demands of tax were served on the assessee subsequent to the respective valuation dates and, on that ground, observed that the tax liabilities did not fall within the prohibition of s. 2(m) (iii) (a) and had to be taken into account as debts owed by the assessee on the valuation dates. It seems to us that the Appellate Tribunal has not correctly appreciated the scope of s. 2(m) (iii) (a). Section 2 (m) (iii) (a) denies deduction to an amount of tax which is outstanding on the valuation date if the assessee contends in appeal, revision or other proceeding that he is not liable to pay the tax. It presupposes that there is a subsisting tax demand and the assessee has challenged its validity. It refers to the initial stage only where an appeal, revision or other proceeding is pending merely. It does not proceed beyond that stage to the point where, in consequence of such appeal, revision or other proceedings, the tax liability has been found to be nil. Once it is determined that the tax liability is nil, it cannot be said that any amount of tax is outstanding. Such a situation does not bring s. 2(m) (iii) (a) into operation at all, as is clear indeed from its very terms. If upon the ultimate determination it is found that the amount of tax is nil, the assessee is denied the deduction claimed by him not on the ground of s. 2(m) (iii) (a) but because the superior authority has found that there is no tax liability whatever. It must be taken that in law there never was any tax liability.4. So far as the remaining tax liabilities are concerned, the Tribunal is right in allowing the income tax, wealth tax and gift tax liabilities to be deducted in computing the net wealth of the assessee for the respective assessment years, even though, the assessment orders were finalised after the respective valuation dates. We may point out that it has not been shown to us that the assessee filed appeals questioning the income tax, wealth tax and gift tax Liabilities other than the income tax liability of Rs. 72, 399 and the gift tax liability of Rs. 1, 13, 650 for the assessment years 1965-66 referred to earlier. The questions of which reference was sought by the Revenue are answered accordingly. | 1[ds]We are of opinion that the income tax liability for the assessment year 1965-66 of Rs. 72, 399 and the gift tax liability for the assessment year 1965-66 of Rs. 1, 13, 650, subsequently set aside on appeal after the valuation dates, cannot be regarded as debts owed by the assessee on the relevant valuation dates.Towards the close of its order the Appellate Tribunal pointed to the fact that the different demands of tax were served on the assessee subsequent to the respective valuation dates and, on that ground, observed that the tax liabilities did not fall within the prohibition of s. 2(m) (iii) (a) and had to be taken into account as debts owed by the assessee on the valuation dates. It seems to us that the Appellate Tribunal has not correctly appreciated the scope of s. 2(m) (iii) (a). Section 2 (m) (iii) (a) denies deduction to an amount of tax which is outstanding on the valuation date if the assessee contends in appeal, revision or other proceeding that he is not liable to pay the tax. It presupposes that there is a subsisting tax demand and the assessee has challenged its validity. It refers to the initial stage only where an appeal, revision or other proceeding is pending merely. It does not proceed beyond that stage to the point where, in consequence of such appeal, revision or other proceedings, the tax liability has been found to be nil. Once it is determined that the tax liability is nil, it cannot be said that any amount of tax is outstanding. Such a situation does not bring s. 2(m) (iii) (a) into operation at all, as is clear indeed from its very terms. If upon the ultimate determination it is found that the amount of tax is nil, the assessee is denied the deduction claimed by him not on the ground of s. 2(m) (iii) (a) but because the superior authority has found that there is no tax liability whatever. It must be taken that in law there never was any tax liability. | 1 | 2,118 | 411 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
explain why we say that a gift tax liability crystallises on the last day of the pertinent previous year under the Gift Tax Act. Section 3 of the Gift Tax Act levies gift tax in respect of the gifts made by a person during the previous year at the rates specified in the Schedule. Section 13 provides for the filing of a return of the gifts made during the previous year. Section 15 requires the Gift Tax Officer to assess the value of the taxable gifts made during the previous year and determine the amount of gift tax payable. The gift tax so payable is envisaged as a single sum in respect of the totality of the gifts made by the assessee during the previous year. Moreover, the Schedule prescribes graduated scales of rates of gift tax in ascending order. All these considerations point to the conclusion that the liability to gift tax crystallises, not in relation to each gift individually, but in relation to the assessed aggregate value of the gifts made during the previous year. In other words, a gift tax liability crystallises on the last day of the previous year. Now the quantification of the income tax, wealth tax or gift tax liability is determined by a corresponding assessment order, and even if the assessment order is made after the valuation date relevant to the wealth tax assessment in which the claim to deduction is made, there is a debt owed by th e assessee on the valuation date. The quantification effected by an assessment order may be varied as the income tax, wealth tax and gift tax case is carried in appeal to the Appellate Assistant Commissioner, or thereafter to the Appellate Tribunal, and indeed even in reference later to the High Court or subsequent appeal to this Court. It is the quantification of the tax liability by the ultimate judicial authority which will determine the amount of the debt owed by the assessee on t he valuation date. So long as such ultimate determination indicates the existence of a positive tax liability, it must be held that there is a debt owed by the assessee on the valuation date even though such determination may be subsequent in point of time to the valuation date. If, however, it is found on such ultimate determination that there is no tax liability, it cannot be said that merely because originally a tax liability had been determined and stood existing on the valuation date there was a debt owed by the assessee. The fact cannot be ignored that when the case was carried in appeal or reference it was found by the superior authority that in fact there was no tax liability at all. That final determination, even though rendered after the valuation date, directly relates to the question whether on the valuation date there was a debt owed by the assessee. If the finding is that there was no tax liability, it must be held that there was no debt owed by the asses see on the valuation date. In this regard, we do not agree with what has been said by the Madras High Court to the contrary in P.A. Appavoo Pillai (supra). We are of opinion that the income tax liability for the assessment year 1965-66 of Rs. 72, 399 and the gift tax liability for the assessment year 1965-66 of Rs. 1, 13, 650, subsequently set aside on appeal after the valuation dates, cannot be regarded as debts owed by the assessee on the relevant valuation dates.Towards the close of its order the Appellate Tribunal pointed to the fact that the different demands of tax were served on the assessee subsequent to the respective valuation dates and, on that ground, observed that the tax liabilities did not fall within the prohibition of s. 2(m) (iii) (a) and had to be taken into account as debts owed by the assessee on the valuation dates. It seems to us that the Appellate Tribunal has not correctly appreciated the scope of s. 2(m) (iii) (a). Section 2 (m) (iii) (a) denies deduction to an amount of tax which is outstanding on the valuation date if the assessee contends in appeal, revision or other proceeding that he is not liable to pay the tax. It presupposes that there is a subsisting tax demand and the assessee has challenged its validity. It refers to the initial stage only where an appeal, revision or other proceeding is pending merely. It does not proceed beyond that stage to the point where, in consequence of such appeal, revision or other proceedings, the tax liability has been found to be nil. Once it is determined that the tax liability is nil, it cannot be said that any amount of tax is outstanding. Such a situation does not bring s. 2(m) (iii) (a) into operation at all, as is clear indeed from its very terms. If upon the ultimate determination it is found that the amount of tax is nil, the assessee is denied the deduction claimed by him not on the ground of s. 2(m) (iii) (a) but because the superior authority has found that there is no tax liability whatever. It must be taken that in law there never was any tax liability.4. So far as the remaining tax liabilities are concerned, the Tribunal is right in allowing the income tax, wealth tax and gift tax liabilities to be deducted in computing the net wealth of the assessee for the respective assessment years, even though, the assessment orders were finalised after the respective valuation dates. We may point out that it has not been shown to us that the assessee filed appeals questioning the income tax, wealth tax and gift tax Liabilities other than the income tax liability of Rs. 72, 399 and the gift tax liability of Rs. 1, 13, 650 for the assessment years 1965-66 referred to earlier. The questions of which reference was sought by the Revenue are answered accordingly.
### Response:
1
### Explanation:
We are of opinion that the income tax liability for the assessment year 1965-66 of Rs. 72, 399 and the gift tax liability for the assessment year 1965-66 of Rs. 1, 13, 650, subsequently set aside on appeal after the valuation dates, cannot be regarded as debts owed by the assessee on the relevant valuation dates.Towards the close of its order the Appellate Tribunal pointed to the fact that the different demands of tax were served on the assessee subsequent to the respective valuation dates and, on that ground, observed that the tax liabilities did not fall within the prohibition of s. 2(m) (iii) (a) and had to be taken into account as debts owed by the assessee on the valuation dates. It seems to us that the Appellate Tribunal has not correctly appreciated the scope of s. 2(m) (iii) (a). Section 2 (m) (iii) (a) denies deduction to an amount of tax which is outstanding on the valuation date if the assessee contends in appeal, revision or other proceeding that he is not liable to pay the tax. It presupposes that there is a subsisting tax demand and the assessee has challenged its validity. It refers to the initial stage only where an appeal, revision or other proceeding is pending merely. It does not proceed beyond that stage to the point where, in consequence of such appeal, revision or other proceedings, the tax liability has been found to be nil. Once it is determined that the tax liability is nil, it cannot be said that any amount of tax is outstanding. Such a situation does not bring s. 2(m) (iii) (a) into operation at all, as is clear indeed from its very terms. If upon the ultimate determination it is found that the amount of tax is nil, the assessee is denied the deduction claimed by him not on the ground of s. 2(m) (iii) (a) but because the superior authority has found that there is no tax liability whatever. It must be taken that in law there never was any tax liability.
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Oil & Natural Gas Corporation Ltd Vs. State Bank of India, Overseas Branch, Bombay | the Bank while requesting to extend the bank guarantee specifically stated that if it was not so done, the communication should be treated as notice for encashment of the bank guarantee and these communications addressed to the respective banks prior to the guarantee would serve the purpose of notice to the banks and so it cannot be held that the invocation was after the date of expiry of the said guarantees. 8. The same is the principle stated by this Court in Hindustan Steelworks Construction Ltd. v. Tarapore & Co. & another (supra). It is held therein that encashment of an unconditional bank guarantee does not depend upon the adjudication of disputes. No distinction can also be made between bank guarantee for due performance of a work contract and a guarantee given towards security deposit for a contract or any other kind of guarantee. Where the beneficiary shall be the sole judge on the question of breach of primary contract the bank shall pay the amount covered by the guarantee on demand without a demur. In the absence of a plea of fraud, guarantee had to be given effect to. 9. Though these two decisions pertain to grant of injunction for enforcement of bank guarantee, the principle stated therein could be extended to understand the nature of defence raised by the respondent Bank in the present case. Whether the respondent Bank could at all raise such a defence which is totally untenable. In the right of what is stated above, in the absence of a plea relating to fraud, much less of a finding thereto, we find that the court could not have stated that the defence raised by the respondent Bank on the grounds set forth earlier is sufficient to hold that unconditional leave should be granted to defend the suit. In the arbitration proceedings that were pending it was certainly open to the parties concerned to adduce proper evidence and establish as to what are the liquidated damages that are payable and if any excess amount had been paid the same would be recovered. 10. So far as the order made by the Italian Court for not enforcing the bank guarantee is concerned, it must be stated that the said order arose out of the counter guarantee with which the appellant had nothing to do. In this context, it is brought to our notice that the Foreign Exchange Manual, 1999 provided as under :- Â?3)Â?3 Å "Reserve Bank has likewise granted general permission to authorised dealers vide the above Notification to give guarantees in favour of persons resident in India in respect of any debt or other obligation or liability of a person resident outside India subject to such instructions as may be issued by Reserve Bank from time to time. Authorised dealers may accordingly give on behalf of their overseas Head Offices/branches/correspondents or a bank of international repute guarantee/performance bonds in favour of residents of India in connection with genuine transactions involving debt liability or obligation of non-residential provides the bond/guarantee is covered by a counter guarantee of the overseas Head Office/branch/correspondent or a bank of international repute. Authorised dealers may make rupee payments to the resident beneficiaries immediately when the guarantee is invoked and simultaneously arrange to obtain the reimbursement from the overseas bank concerned which had issued the counter guarantee. Authorised dealers are well advised that they should ensure that counter guarantees are properly evaluated and their own guarantees against such guarantee are not issued in routine manner. Before issuing a guarantee against the counter guarantee from an overseas Head Office/branch/correspondent or a bank of international repute, authorised dealers should satisfy themselves that the obligations under the counter guarantee when invoked, would be honoured by the overseas bank promptly. If the authorised dealer desires to issue guarantee with the condition that payment will be made provided reimbursement has been received from the overseas bank which has issued the counter guarantee, this fact should be made clearly known to the beneficiary in the guarantee documents itself. Cases whose payments are not received by the authorised dealers when the guarantees of overseas banks are invoked; should be reported to Reserve Bank indicating the steps taken by the bank to recover the amount due under the guarantee." 11. Till the new Exchange Control Manual was introduced the position was as follows :- "Reserve Bank has likewise granted general permission to authorised dealers vide the above Notification to give guarantees in favour of persons resident in India in respect of any debt or other obligation or liability of a person resident outside India subject to such instructions as may be issued from time to time. Authorised dealers may accordingly give, on behalf of their overseas Head Offices/branches/correspondents, performance bonds or guarantees in favour of residents of India, in support of tenders to be submitted for due performance of contracts or for refund, in the event of contracts not being fulfilled, of advance payments received, provided the bond or guarantee is covered by counter guarantee of the Head Office/branch/correspondent. Authorised dealers may make rupee payments to residents in implementation of invoked bonds/guarantees issued in favour of residents of India without prior reference to Reserve Bank, provided reimbursement has been received from the Head/Office/branch/correspondent abroad in an approved manner." 12. When, in fact, there is no defence for suit filed merely to rely upon an injunction granted or obtained in their favour does not carry the case of the respondent Bank any further. The only basis upon which the respondent Bank sought for and obtained the injunction is that in event the counter guarantee cannot be honoured by reason of the injunction granted by the Italian court the respondent Bank should be extended the similar benefit. But a perusal of the Foreign Exchange Manual makes it clear that none of the claims would be an impediment to make payment under the Bank Guarantee in question. Therefore, in our view, the High Court plainly erred in having granted leave to defend unconditionally. | 0[ds]Whether the respondent Bank could at all raise such a defence which is totally untenable. In the right of what is stated above, in the absence of a plea relating to fraud, much less of a finding thereto, we find that the court could not have stated that the defence raised by the respondent Bank on the grounds set forth earlier is sufficient to hold that unconditional leave should be granted to defend the suit.When, in fact, there is no defence for suit filed merely to rely upon an injunction granted or obtained in their favour does not carry the case of the respondent Bank any further. The only basis upon which the respondent Bank sought for and obtained the injunction is that in event the counter guarantee cannot be honoured by reason of the injunction granted by the Italian court the respondent Bank should be extended the similar benefit. But a perusal of the Foreign Exchange Manual makes it clear that none of the claims would be an impediment to make payment under the Bank Guarantee in question. | 0 | 3,200 | 193 | ### 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:
the Bank while requesting to extend the bank guarantee specifically stated that if it was not so done, the communication should be treated as notice for encashment of the bank guarantee and these communications addressed to the respective banks prior to the guarantee would serve the purpose of notice to the banks and so it cannot be held that the invocation was after the date of expiry of the said guarantees. 8. The same is the principle stated by this Court in Hindustan Steelworks Construction Ltd. v. Tarapore & Co. & another (supra). It is held therein that encashment of an unconditional bank guarantee does not depend upon the adjudication of disputes. No distinction can also be made between bank guarantee for due performance of a work contract and a guarantee given towards security deposit for a contract or any other kind of guarantee. Where the beneficiary shall be the sole judge on the question of breach of primary contract the bank shall pay the amount covered by the guarantee on demand without a demur. In the absence of a plea of fraud, guarantee had to be given effect to. 9. Though these two decisions pertain to grant of injunction for enforcement of bank guarantee, the principle stated therein could be extended to understand the nature of defence raised by the respondent Bank in the present case. Whether the respondent Bank could at all raise such a defence which is totally untenable. In the right of what is stated above, in the absence of a plea relating to fraud, much less of a finding thereto, we find that the court could not have stated that the defence raised by the respondent Bank on the grounds set forth earlier is sufficient to hold that unconditional leave should be granted to defend the suit. In the arbitration proceedings that were pending it was certainly open to the parties concerned to adduce proper evidence and establish as to what are the liquidated damages that are payable and if any excess amount had been paid the same would be recovered. 10. So far as the order made by the Italian Court for not enforcing the bank guarantee is concerned, it must be stated that the said order arose out of the counter guarantee with which the appellant had nothing to do. In this context, it is brought to our notice that the Foreign Exchange Manual, 1999 provided as under :- Â?3)Â?3 Å "Reserve Bank has likewise granted general permission to authorised dealers vide the above Notification to give guarantees in favour of persons resident in India in respect of any debt or other obligation or liability of a person resident outside India subject to such instructions as may be issued by Reserve Bank from time to time. Authorised dealers may accordingly give on behalf of their overseas Head Offices/branches/correspondents or a bank of international repute guarantee/performance bonds in favour of residents of India in connection with genuine transactions involving debt liability or obligation of non-residential provides the bond/guarantee is covered by a counter guarantee of the overseas Head Office/branch/correspondent or a bank of international repute. Authorised dealers may make rupee payments to the resident beneficiaries immediately when the guarantee is invoked and simultaneously arrange to obtain the reimbursement from the overseas bank concerned which had issued the counter guarantee. Authorised dealers are well advised that they should ensure that counter guarantees are properly evaluated and their own guarantees against such guarantee are not issued in routine manner. Before issuing a guarantee against the counter guarantee from an overseas Head Office/branch/correspondent or a bank of international repute, authorised dealers should satisfy themselves that the obligations under the counter guarantee when invoked, would be honoured by the overseas bank promptly. If the authorised dealer desires to issue guarantee with the condition that payment will be made provided reimbursement has been received from the overseas bank which has issued the counter guarantee, this fact should be made clearly known to the beneficiary in the guarantee documents itself. Cases whose payments are not received by the authorised dealers when the guarantees of overseas banks are invoked; should be reported to Reserve Bank indicating the steps taken by the bank to recover the amount due under the guarantee." 11. Till the new Exchange Control Manual was introduced the position was as follows :- "Reserve Bank has likewise granted general permission to authorised dealers vide the above Notification to give guarantees in favour of persons resident in India in respect of any debt or other obligation or liability of a person resident outside India subject to such instructions as may be issued from time to time. Authorised dealers may accordingly give, on behalf of their overseas Head Offices/branches/correspondents, performance bonds or guarantees in favour of residents of India, in support of tenders to be submitted for due performance of contracts or for refund, in the event of contracts not being fulfilled, of advance payments received, provided the bond or guarantee is covered by counter guarantee of the Head Office/branch/correspondent. Authorised dealers may make rupee payments to residents in implementation of invoked bonds/guarantees issued in favour of residents of India without prior reference to Reserve Bank, provided reimbursement has been received from the Head/Office/branch/correspondent abroad in an approved manner." 12. When, in fact, there is no defence for suit filed merely to rely upon an injunction granted or obtained in their favour does not carry the case of the respondent Bank any further. The only basis upon which the respondent Bank sought for and obtained the injunction is that in event the counter guarantee cannot be honoured by reason of the injunction granted by the Italian court the respondent Bank should be extended the similar benefit. But a perusal of the Foreign Exchange Manual makes it clear that none of the claims would be an impediment to make payment under the Bank Guarantee in question. Therefore, in our view, the High Court plainly erred in having granted leave to defend unconditionally.
### Response:
0
### Explanation:
Whether the respondent Bank could at all raise such a defence which is totally untenable. In the right of what is stated above, in the absence of a plea relating to fraud, much less of a finding thereto, we find that the court could not have stated that the defence raised by the respondent Bank on the grounds set forth earlier is sufficient to hold that unconditional leave should be granted to defend the suit.When, in fact, there is no defence for suit filed merely to rely upon an injunction granted or obtained in their favour does not carry the case of the respondent Bank any further. The only basis upon which the respondent Bank sought for and obtained the injunction is that in event the counter guarantee cannot be honoured by reason of the injunction granted by the Italian court the respondent Bank should be extended the similar benefit. But a perusal of the Foreign Exchange Manual makes it clear that none of the claims would be an impediment to make payment under the Bank Guarantee in question.
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Renu Rani Shrivastava and Ors Vs. New India Assurance Company Ltd. and Ors | 1. Leave granted. In the accident that occurred on 28.6.2008, Mr. Palash Kumar who was working as Senior Editor in Asian Age, Mumbai which is under Deccan Chronicle Holding Limited lost his life. He left behind his wife, daughter and parents. The Motor Accidents Claims Tribunal, Alwar (hereinafter called as MACT) awarded compensation of Rs. 1,37,25,000 taking income of the deceased at Rs. 12 lakh per year. The MACT deducted 25% of the income towards personal expenses and adopted the multiplier as 15. It has held that the lorry which was involved in the accident was fully responsible and consequently, the Respondent/Insurance Company herein is liable to reimburse the compensation. The High Court in appeal, reduced the compensation to Rs. 1,03,50,000 holding that the driver of the car that is the deceased Mr. Palash Kumar was responsible to the extent of 50%. The claimants/Appellants are before this Court. 2. Learned Counsel for the Respondent/Insurance Company submitted that the High Court was justified in concluding that the accident was due to contributory negligence of both the drivers and, therefore, Respondent/Insurance Company is liable to pay 50% of the compensation. He further submitted that the wife of the deceased has relinquished her share in favour of her in-laws and got certain properties in lieu thereof and, therefore, the wife of the deceased is not entitled to any compensation. 3. The High Court in its judgment has wrongly recorded that the breadth of the road was 9.5 feet. On the contrary, the breadth of the road was 9.5 steps, which means about 20 feet breadth. It is not in dispute that the deceased Mr. Palash Kumar was coming from Kishangarh side to Alwar side and the Lorry was coming from Alwar to Kishangarh and there was a collision between two vehicles. The car was coming in correct side. It is clear from the record that the lorry went towards wrong side (right hand side of the road) and collided with the car of the deceased at point "A" and dragged the car from point "A" to point "B" i.e. to the extreme side of the road. These facts would clearly reveal that the driver of the lorry was not only reckless but also negligent in driving the vehicle and collided at point "A" which was the wrong side of the lorry driver and dragged the car to point "B". Looking into the entire discussion made by the High Court in its judgment, it is clear that the High Court has fallen into error by wrongly considering the breadth of the road. 4. Learned Counsel for the Appellant submits that the assessment of compensation by the MACT as well as by the High Court is improper inasmuch as the Appellant is entitled to enhanced compensation. The future prospects of the deceased was not taken into consideration by the MACT as well as by the High Court. 5. In our considered opinion, learned Counsel for the Appellant is justified in arguing that the MACT as well as the High Court is not justified in awarding the future prospects in favour of the deceased. The deceased was the Senior Editor in Asian Age. Though, it is not considered as a permanent job, 40% of the income of the deceased needs to be added for computing the compensation as future prospects. It is also to be taken note that 25% of income as personal expenses is to be deducted while quantifying the compensation. The MACT as well as the High Court has awarded Rs. 2,75,000 under conventional heads. Having regard to the totality of the facts and circumstances, the Appellants are entitled to compensation of Rs. 2,06,75,000 in toto. 6. The argument of the learned Counsel for the Respondent/Insurance Company with regard to the relinquishment of her share in favour of the other claimants and consequently she is not entitled to compensation, cannot be accepted. It is in between the family members to make arrangement with regard to the family affairs. The grant of compensation by the MACT or by the Court in respect of accidental death of a person will not be affected by the family arrangement of the parties inasmuch as the compensation as per law has to be awarded by the Court in favour of the dependants. The internal family matter of the parties will not affect the award of compensation. | 1[ds]3. The High Court in its judgment has wrongly recorded that the breadth of the road was 9.5 feet. On the contrary, the breadth of the road was 9.5 steps, which means about 20 feet breadth. It is not in dispute that the deceased Mr. Palash Kumar was coming from Kishangarh side to Alwar side and the Lorry was coming from Alwar to Kishangarh and there was a collision between two vehicles. The car was coming in correct side. It is clear from the record that the lorry went towards wrong side (right hand side of the road) and collided with the car of the deceased at point "A" and dragged the car from point "A" to point "B" i.e. to the extreme side of the road. These facts would clearly reveal that the driver of the lorry was not only reckless but also negligent in driving the vehicle and collided at point "A" which was the wrong side of the lorry driver and dragged the car to point "B". Looking into the entire discussion made by the High Court in its judgment, it is clear that the High Court has fallen into error by wrongly considering the breadth of the road.In our considered opinion, learned Counsel for the Appellant is justified in arguing that the MACT as well as the High Court is not justified in awarding the future prospects in favour of the deceased. The deceased was the Senior Editor in Asian Age. Though, it is not considered as a permanent job, 40% of the income of the deceased needs to be added for computing the compensation as future prospects. It is also to be taken note that 25% of income as personal expenses is to be deducted while quantifying the compensation. The MACT as well as the High Court has awarded Rs. 2,75,000 under conventional heads. Having regard to the totality of the facts and circumstances, the Appellants are entitled to compensation of Rs. 2,06,75,000 in toto.The argument of the learned Counsel for the Respondent/Insurance Company with regard to the relinquishment of her share in favour of the other claimants and consequently she is not entitled to compensation, cannot be accepted. It is in between the family members to make arrangement with regard to the family affairs. The grant of compensation by the MACT or by the Court in respect of accidental death of a person will not be affected by the family arrangement of the parties inasmuch as the compensation as per law has to be awarded by the Court in favour of the dependants. The internal family matter of the parties will not affect the award of compensation. | 1 | 806 | 489 | ### 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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1. Leave granted. In the accident that occurred on 28.6.2008, Mr. Palash Kumar who was working as Senior Editor in Asian Age, Mumbai which is under Deccan Chronicle Holding Limited lost his life. He left behind his wife, daughter and parents. The Motor Accidents Claims Tribunal, Alwar (hereinafter called as MACT) awarded compensation of Rs. 1,37,25,000 taking income of the deceased at Rs. 12 lakh per year. The MACT deducted 25% of the income towards personal expenses and adopted the multiplier as 15. It has held that the lorry which was involved in the accident was fully responsible and consequently, the Respondent/Insurance Company herein is liable to reimburse the compensation. The High Court in appeal, reduced the compensation to Rs. 1,03,50,000 holding that the driver of the car that is the deceased Mr. Palash Kumar was responsible to the extent of 50%. The claimants/Appellants are before this Court. 2. Learned Counsel for the Respondent/Insurance Company submitted that the High Court was justified in concluding that the accident was due to contributory negligence of both the drivers and, therefore, Respondent/Insurance Company is liable to pay 50% of the compensation. He further submitted that the wife of the deceased has relinquished her share in favour of her in-laws and got certain properties in lieu thereof and, therefore, the wife of the deceased is not entitled to any compensation. 3. The High Court in its judgment has wrongly recorded that the breadth of the road was 9.5 feet. On the contrary, the breadth of the road was 9.5 steps, which means about 20 feet breadth. It is not in dispute that the deceased Mr. Palash Kumar was coming from Kishangarh side to Alwar side and the Lorry was coming from Alwar to Kishangarh and there was a collision between two vehicles. The car was coming in correct side. It is clear from the record that the lorry went towards wrong side (right hand side of the road) and collided with the car of the deceased at point "A" and dragged the car from point "A" to point "B" i.e. to the extreme side of the road. These facts would clearly reveal that the driver of the lorry was not only reckless but also negligent in driving the vehicle and collided at point "A" which was the wrong side of the lorry driver and dragged the car to point "B". Looking into the entire discussion made by the High Court in its judgment, it is clear that the High Court has fallen into error by wrongly considering the breadth of the road. 4. Learned Counsel for the Appellant submits that the assessment of compensation by the MACT as well as by the High Court is improper inasmuch as the Appellant is entitled to enhanced compensation. The future prospects of the deceased was not taken into consideration by the MACT as well as by the High Court. 5. In our considered opinion, learned Counsel for the Appellant is justified in arguing that the MACT as well as the High Court is not justified in awarding the future prospects in favour of the deceased. The deceased was the Senior Editor in Asian Age. Though, it is not considered as a permanent job, 40% of the income of the deceased needs to be added for computing the compensation as future prospects. It is also to be taken note that 25% of income as personal expenses is to be deducted while quantifying the compensation. The MACT as well as the High Court has awarded Rs. 2,75,000 under conventional heads. Having regard to the totality of the facts and circumstances, the Appellants are entitled to compensation of Rs. 2,06,75,000 in toto. 6. The argument of the learned Counsel for the Respondent/Insurance Company with regard to the relinquishment of her share in favour of the other claimants and consequently she is not entitled to compensation, cannot be accepted. It is in between the family members to make arrangement with regard to the family affairs. The grant of compensation by the MACT or by the Court in respect of accidental death of a person will not be affected by the family arrangement of the parties inasmuch as the compensation as per law has to be awarded by the Court in favour of the dependants. The internal family matter of the parties will not affect the award of compensation.
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3. The High Court in its judgment has wrongly recorded that the breadth of the road was 9.5 feet. On the contrary, the breadth of the road was 9.5 steps, which means about 20 feet breadth. It is not in dispute that the deceased Mr. Palash Kumar was coming from Kishangarh side to Alwar side and the Lorry was coming from Alwar to Kishangarh and there was a collision between two vehicles. The car was coming in correct side. It is clear from the record that the lorry went towards wrong side (right hand side of the road) and collided with the car of the deceased at point "A" and dragged the car from point "A" to point "B" i.e. to the extreme side of the road. These facts would clearly reveal that the driver of the lorry was not only reckless but also negligent in driving the vehicle and collided at point "A" which was the wrong side of the lorry driver and dragged the car to point "B". Looking into the entire discussion made by the High Court in its judgment, it is clear that the High Court has fallen into error by wrongly considering the breadth of the road.In our considered opinion, learned Counsel for the Appellant is justified in arguing that the MACT as well as the High Court is not justified in awarding the future prospects in favour of the deceased. The deceased was the Senior Editor in Asian Age. Though, it is not considered as a permanent job, 40% of the income of the deceased needs to be added for computing the compensation as future prospects. It is also to be taken note that 25% of income as personal expenses is to be deducted while quantifying the compensation. The MACT as well as the High Court has awarded Rs. 2,75,000 under conventional heads. Having regard to the totality of the facts and circumstances, the Appellants are entitled to compensation of Rs. 2,06,75,000 in toto.The argument of the learned Counsel for the Respondent/Insurance Company with regard to the relinquishment of her share in favour of the other claimants and consequently she is not entitled to compensation, cannot be accepted. It is in between the family members to make arrangement with regard to the family affairs. The grant of compensation by the MACT or by the Court in respect of accidental death of a person will not be affected by the family arrangement of the parties inasmuch as the compensation as per law has to be awarded by the Court in favour of the dependants. The internal family matter of the parties will not affect the award of compensation.
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Pr. Commissioner of Income Tax, Central 2 Vs. A.A. Estate Pvt. Ltd | the Act seeking therein to re-open the assessment of the Respondent-Assessee which was made on 24.12.2009. This notice was issued by the AO on the basis of information received from ADIT (investigation) Unit II (2). 8. By this notice, the AO proposed to make an addition of Rs. 1,70,94,000/- towards unaccounted sale proceeds alleged to have been made by the Respondent-Assessee in the assessment year in question (2008-2009) because, in his opinion, it was in the nature of escaped assessment. 9. The AO proposed this addition on the basis of one document (Annexure-AB-1), which was seized by the Revenue Department in their search operation carried on 30.11.2007 in the business premises of another Assessee by name- M/s. Ashok Buildcom Ltd. 10. In other words, the foundation for issuance of notice Under Section 148 of the Act to the Respondent-Assessee for adding the aforementioned sum was the document-Annexure-AB-1. 11. The Respondent-Assessee objected to issuance of notice contending inter alia that first, there is no factual foundation for issue of notice; Second, there is no case for any "escaped assessment", and Third, there is no case to "reason to believe". 12. By order dated 30.12.2011, the AO overruled the objections raised by the Respondent-Assessee and passed a re-assessment order by adding a sum of Rs. 1,70,94,000/- in the total income of the Respondent-Assessee. He held that, in his opinion, it was a case of escaped assessment and secondly, there was enough material to add the said sum in the total income of the Respondent-Assessee for the assessment year under consideration. 13. The Respondent-Assessee felt aggrieved and filed appeal before the CIT (appeal). By order dated 21.02.2013, the CIT (appeal) dismissed the appeal and upheld the addition made by the AO. The Respondent-Assessee felt aggrieved and filed second appeal before the ITAT. By order dated 05.02.2014, the Tribunal allowed the appeal and set aside the order of the CIT (appeals). 14. The Commissioner of Income Tax felt aggrieved and filed appeal before the High Court Under Section 260-A of the Act. By impugned order, the High Court dismissed the appeal and affirmed the order of the Tribunal giving rise to filing of the special leave to appeal by the Commissioner of Income Tax in this Court. 15. So, the short question, which arises for consideration in this appeal, is whether High Court was justified in dismissing the appeal filed by the Commissioner of Income Tax (Appellant herein). 16. Heard Mr. H.R. Rao, learned Counsel for the Appellant and Mr. Salil Kapoor, learned Counsel for the Respondent. 17. Having heard the learned Counsel for the parties and on perusal of the record of the case and the written submissions filed by the learned Counsel, we are inclined to allow this appeal and while setting aside the impugned order, remand the case to the High Court for deciding the appeal afresh. 18. In our view, the need to remand the case to the High Court has occasioned for more than one reason as stated hereinbelow. 19. First, the High Court did not formulate any substantial question of law as was required to be framed Under Section 260-A of the Act. 20. Second, in Para 2 of the impugned order, the High Court observed that "Revenue urges following questions of law for our consideration". 21. As is clear from reading of Para 2, the two questions set out in Para 2 were not the questions framed by the High Court as was required to be framed Under Section 260-A(3) of the Act for hearing the appeal but were the questions urged by the Appellant. 22. In our view, there lies a distinction between the questions proposed by the Appellant for admission of the appeal and the questions framed by the Court. 23. The questions, which are proposed by the Appellant, fall Under Section 260-A (2) (c) of the Act whereas the questions framed by the High Court fall Under Section 260-A (3) of the Act. The appeal is heard on merits only on the questions framed by the High Court Under Sub-section (3) of Section 260-A of the Act as provided Under Section 260-A (4) of the Act. In other words, the appeal is heard only on the questions framed by the Court. 24. Third, if the High Court was of the view that the appeal did not involve any substantial question of law, it should have recorded a categorical finding to that effect saying that the questions proposed by the Appellant either do not arise in the case or/and are not substantial questions of law so as to attract the rigor of Section 260-A of the Act for its admission and accordingly should have dismissed the appeal in limine. 25. It was, however, not done and instead the High Court without admitting the appeal and framing any question of law issued notice of appeal to the Respondent-Assessee, heard both the parties on the questions urged by the Appellant and dismissed it. In our view, the Respondent had a right to argue "at the time of hearing" of the appeal that the questions framed were not involved in the appeal and this the Respondent could urge by taking recourse to Sub-section (5) of Section 260-A of the Act. But this stage in this case did not arise because as mentioned above, the High Court neither admitted the appeal nor framed any question as required Under Sub-section (3) of Section 260-A of the Act. The expression "such question" referred to in Sub-section (5) of Section 260-A of the Act means the questions which are framed by the High Court Under Sub-section (3) of Section 260-A at the time of admission of the appeal and not the one proposed in Section 260-A (2) (c) of the Act by the Appellant. 26. We are, therefore, of the view that the High Court did not decide the appeal in conformity with the mandatory procedure prescribed in Section 260-A of the Act. 27. Fourth, the High Court should have seen that | 1[ds]17. Having heard the learned Counsel for the parties and on perusal of the record of the case and the written submissions filed by the learned Counsel, we are inclined to allow this appeal and while setting aside the impugned order, remand the case to the High Court for deciding the appeal afresh18. In our view, the need to remand the case to the High Court has occasioned for more than one reason as stated hereinbelow19. First, the High Court did not formulate any substantial question of law as was required to be framed Under Section 260-A of the Act20. Second, in Para 2 of the impugned order, the High Court observed that "Revenue urges following questions of law for our consideration"21. As is clear from reading of Para 2, the two questions set out in Para 2 were not the questions framed by the High Court as was required to be framed Under Section 260-A(3) of the Act for hearing the appeal but were the questions urged by the Appellant22. In our view, there lies a distinction between the questions proposed by the Appellant for admission of the appeal and the questions framed by the Court23. The questions, which are proposed by the Appellant, fall Under Section 260-A (2) (c) of the Act whereas the questions framed by the High Court fall Under Section 260-A (3) of the Act. The appeal is heard on merits only on the questions framed by the High Court Under Sub-section (3) of Section 260-A of the Act as provided Under Section 260-A (4) of the Act. In other words, the appeal is heard only on the questions framed by the Court24. Third, if the High Court was of the view that the appeal did not involve any substantial question of law, it should have recorded a categorical finding to that effect saying that the questions proposed by the Appellant either do not arise in the case or/and are not substantial questions of law so as to attract the rigor of Section 260-A of the Act for its admission and accordingly should have dismissed the appeal in limine25. It was, however, not done and instead the High Court without admitting the appeal and framing any question of law issued notice of appeal to the Respondent-Assessee, heard both the parties on the questions urged by the Appellant and dismissed it. In our view, the Respondent had a right to argue "at the time of hearing" of the appeal that the questions framed were not involved in the appeal and this the Respondent could urge by taking recourse to Sub-section (5) of Section 260-A of the Act. But this stage in this case did not arise because as mentioned above, the High Court neither admitted the appeal nor framed any question as required Under Sub-section (3) of Section 260-A of the Act. The expression "such question" referred to in Sub-section (5) of Section 260-A of the Act means the questions which are framed by the High Court Under Sub-section (3) of Section 260-A at the time of admission of the appeal and not the one proposed in Section 260-A (2) (c) of the Act by the Appellant26. We are, therefore, of the view that the High Court did not decide the appeal in conformity with the mandatory procedure prescribed in Section 260-A of the Act27. Fourth, the High Court should have seen that following substantial questions of law do arise in the appeal for being answered on their respective merits:(i) Whether the reasons contained in Notice Under Section 148 are relevant and sufficient for issuance of the said Notice dated 22.09.2010?(ii) Whether any case of escaped assessment within the meaning of Section 147 read with Section 148 of the Act for the assessment year in question is made out by the Commissioner of Income Tax on the basis of the reasons set out in the notice?(iii) Whether a case of presumption as contemplated Under Section 132(4A) of the Act could be drawn against the Respondent-Assessee on the basis of a document (Annexure AB-1) which was seized in search operation carried in the business premises of another Assessee- M/s. Ashok buildcom by adding a sum of Rs. 1,70,94,000/- for determining the total tax liability of the Respondent for the year in question as an escaped assessment so as to enable the Department to issue notice dated 22.09.2010 Under Section 148 of the Act to the Respondent? | 1 | 1,346 | 832 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the Act seeking therein to re-open the assessment of the Respondent-Assessee which was made on 24.12.2009. This notice was issued by the AO on the basis of information received from ADIT (investigation) Unit II (2). 8. By this notice, the AO proposed to make an addition of Rs. 1,70,94,000/- towards unaccounted sale proceeds alleged to have been made by the Respondent-Assessee in the assessment year in question (2008-2009) because, in his opinion, it was in the nature of escaped assessment. 9. The AO proposed this addition on the basis of one document (Annexure-AB-1), which was seized by the Revenue Department in their search operation carried on 30.11.2007 in the business premises of another Assessee by name- M/s. Ashok Buildcom Ltd. 10. In other words, the foundation for issuance of notice Under Section 148 of the Act to the Respondent-Assessee for adding the aforementioned sum was the document-Annexure-AB-1. 11. The Respondent-Assessee objected to issuance of notice contending inter alia that first, there is no factual foundation for issue of notice; Second, there is no case for any "escaped assessment", and Third, there is no case to "reason to believe". 12. By order dated 30.12.2011, the AO overruled the objections raised by the Respondent-Assessee and passed a re-assessment order by adding a sum of Rs. 1,70,94,000/- in the total income of the Respondent-Assessee. He held that, in his opinion, it was a case of escaped assessment and secondly, there was enough material to add the said sum in the total income of the Respondent-Assessee for the assessment year under consideration. 13. The Respondent-Assessee felt aggrieved and filed appeal before the CIT (appeal). By order dated 21.02.2013, the CIT (appeal) dismissed the appeal and upheld the addition made by the AO. The Respondent-Assessee felt aggrieved and filed second appeal before the ITAT. By order dated 05.02.2014, the Tribunal allowed the appeal and set aside the order of the CIT (appeals). 14. The Commissioner of Income Tax felt aggrieved and filed appeal before the High Court Under Section 260-A of the Act. By impugned order, the High Court dismissed the appeal and affirmed the order of the Tribunal giving rise to filing of the special leave to appeal by the Commissioner of Income Tax in this Court. 15. So, the short question, which arises for consideration in this appeal, is whether High Court was justified in dismissing the appeal filed by the Commissioner of Income Tax (Appellant herein). 16. Heard Mr. H.R. Rao, learned Counsel for the Appellant and Mr. Salil Kapoor, learned Counsel for the Respondent. 17. Having heard the learned Counsel for the parties and on perusal of the record of the case and the written submissions filed by the learned Counsel, we are inclined to allow this appeal and while setting aside the impugned order, remand the case to the High Court for deciding the appeal afresh. 18. In our view, the need to remand the case to the High Court has occasioned for more than one reason as stated hereinbelow. 19. First, the High Court did not formulate any substantial question of law as was required to be framed Under Section 260-A of the Act. 20. Second, in Para 2 of the impugned order, the High Court observed that "Revenue urges following questions of law for our consideration". 21. As is clear from reading of Para 2, the two questions set out in Para 2 were not the questions framed by the High Court as was required to be framed Under Section 260-A(3) of the Act for hearing the appeal but were the questions urged by the Appellant. 22. In our view, there lies a distinction between the questions proposed by the Appellant for admission of the appeal and the questions framed by the Court. 23. The questions, which are proposed by the Appellant, fall Under Section 260-A (2) (c) of the Act whereas the questions framed by the High Court fall Under Section 260-A (3) of the Act. The appeal is heard on merits only on the questions framed by the High Court Under Sub-section (3) of Section 260-A of the Act as provided Under Section 260-A (4) of the Act. In other words, the appeal is heard only on the questions framed by the Court. 24. Third, if the High Court was of the view that the appeal did not involve any substantial question of law, it should have recorded a categorical finding to that effect saying that the questions proposed by the Appellant either do not arise in the case or/and are not substantial questions of law so as to attract the rigor of Section 260-A of the Act for its admission and accordingly should have dismissed the appeal in limine. 25. It was, however, not done and instead the High Court without admitting the appeal and framing any question of law issued notice of appeal to the Respondent-Assessee, heard both the parties on the questions urged by the Appellant and dismissed it. In our view, the Respondent had a right to argue "at the time of hearing" of the appeal that the questions framed were not involved in the appeal and this the Respondent could urge by taking recourse to Sub-section (5) of Section 260-A of the Act. But this stage in this case did not arise because as mentioned above, the High Court neither admitted the appeal nor framed any question as required Under Sub-section (3) of Section 260-A of the Act. The expression "such question" referred to in Sub-section (5) of Section 260-A of the Act means the questions which are framed by the High Court Under Sub-section (3) of Section 260-A at the time of admission of the appeal and not the one proposed in Section 260-A (2) (c) of the Act by the Appellant. 26. We are, therefore, of the view that the High Court did not decide the appeal in conformity with the mandatory procedure prescribed in Section 260-A of the Act. 27. Fourth, the High Court should have seen that
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17. Having heard the learned Counsel for the parties and on perusal of the record of the case and the written submissions filed by the learned Counsel, we are inclined to allow this appeal and while setting aside the impugned order, remand the case to the High Court for deciding the appeal afresh18. In our view, the need to remand the case to the High Court has occasioned for more than one reason as stated hereinbelow19. First, the High Court did not formulate any substantial question of law as was required to be framed Under Section 260-A of the Act20. Second, in Para 2 of the impugned order, the High Court observed that "Revenue urges following questions of law for our consideration"21. As is clear from reading of Para 2, the two questions set out in Para 2 were not the questions framed by the High Court as was required to be framed Under Section 260-A(3) of the Act for hearing the appeal but were the questions urged by the Appellant22. In our view, there lies a distinction between the questions proposed by the Appellant for admission of the appeal and the questions framed by the Court23. The questions, which are proposed by the Appellant, fall Under Section 260-A (2) (c) of the Act whereas the questions framed by the High Court fall Under Section 260-A (3) of the Act. The appeal is heard on merits only on the questions framed by the High Court Under Sub-section (3) of Section 260-A of the Act as provided Under Section 260-A (4) of the Act. In other words, the appeal is heard only on the questions framed by the Court24. Third, if the High Court was of the view that the appeal did not involve any substantial question of law, it should have recorded a categorical finding to that effect saying that the questions proposed by the Appellant either do not arise in the case or/and are not substantial questions of law so as to attract the rigor of Section 260-A of the Act for its admission and accordingly should have dismissed the appeal in limine25. It was, however, not done and instead the High Court without admitting the appeal and framing any question of law issued notice of appeal to the Respondent-Assessee, heard both the parties on the questions urged by the Appellant and dismissed it. In our view, the Respondent had a right to argue "at the time of hearing" of the appeal that the questions framed were not involved in the appeal and this the Respondent could urge by taking recourse to Sub-section (5) of Section 260-A of the Act. But this stage in this case did not arise because as mentioned above, the High Court neither admitted the appeal nor framed any question as required Under Sub-section (3) of Section 260-A of the Act. The expression "such question" referred to in Sub-section (5) of Section 260-A of the Act means the questions which are framed by the High Court Under Sub-section (3) of Section 260-A at the time of admission of the appeal and not the one proposed in Section 260-A (2) (c) of the Act by the Appellant26. We are, therefore, of the view that the High Court did not decide the appeal in conformity with the mandatory procedure prescribed in Section 260-A of the Act27. Fourth, the High Court should have seen that following substantial questions of law do arise in the appeal for being answered on their respective merits:(i) Whether the reasons contained in Notice Under Section 148 are relevant and sufficient for issuance of the said Notice dated 22.09.2010?(ii) Whether any case of escaped assessment within the meaning of Section 147 read with Section 148 of the Act for the assessment year in question is made out by the Commissioner of Income Tax on the basis of the reasons set out in the notice?(iii) Whether a case of presumption as contemplated Under Section 132(4A) of the Act could be drawn against the Respondent-Assessee on the basis of a document (Annexure AB-1) which was seized in search operation carried in the business premises of another Assessee- M/s. Ashok buildcom by adding a sum of Rs. 1,70,94,000/- for determining the total tax liability of the Respondent for the year in question as an escaped assessment so as to enable the Department to issue notice dated 22.09.2010 Under Section 148 of the Act to the Respondent?
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Consumer Education & Research Centre&Ors Vs. Union Of India | with meaning and hope for millions of peasants and workers that India shall be a socialist democratic republic where social and economic justice will inform all the institutions of national life and there will be equality of status and opportunity for all the every endeavour shall be made to promote fraternity ensuring the dignity of he individual." In that case, the question was whether the labour is entitled to be heard before a company is closed and liquidator is appointed. In considering that question vis-a-vis Art. 43-A of the Constitution, this Court, per majority, held that they are entitled to be heard before appointing a liquidator in a winding up proceedings of the company. 29. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., 1992(3) SCT 77(SC) : (1992) 3 SCC 336 , a Bench of three Judges considered the vires of Section 25-N of the Industrial Disputes Act on the anvil of Article 19(1)(f) of the Constitution. It was held that the right of the Management under Article 19(1)(f) is subject to the mandates contained in Articles. 38, 39-A, 41 and 43. Accordingly, the fundamental right, under Article 19(1)(g) was held to be subject to the directive principles and Section 25-N does not suffer from the vice of unconstitutionality. 30. It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking or private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Article 32 and Article 142 of the Constitution. 31. Yet another contention of the petitioner is that the workmen affected by asbestosis are suffering from lung cancer and related ailments and they were not properly diagnosed. They be sent to national institute and such to those found suffering from diseases developed due to asbestos, proper compensation be paid. It is needless to reiterate that they need to be re-examined and cause for the disease and the nature of the disease diagnosed. Thereon each one of them whether entitled to damages ? The employer is vicariously liable to pay damages is unquestionable. The award of compensation in proceedings under Article 32 or 226 is a remedy available in public law. In Rudul Sah v. State of Bihar, 1983(3) SCR 508, it was held that this Court under Article 32 can grant compensation for the deprivation of personal liberty, though ordinary process of Court, may be available to enforce the right and money claim could be granted by this Court. Accordingly compensation was awarded. This view was reiterated in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and awarded monetary compensation for custodial death lifting the State immunity from the purview of public law. It is, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.32. The Government issued model Rule 123-A under the Factories Act for adoption. Under the directions issued by this Court from time to time, all the State Governments have by now amended their respective rules and adopted the same as part of it but still there are yawning gaps in their effective implementation in that behalf. It is, therefore, necessary to issue appropriate directions. In the light of the rules "All Safety in the Use of Asbestos" issued by the I.L.O. the same shall be binding on all the industries. As a fact, the 13th respondent-Ferdo Ltd. admitted in its written submissions that all the major industries in India have formed an association called the "Asbestos Information Centre" (AIC) affiliated to the Asbestos International Association (AIA), London. The AIA has been publishing a code of conduct for its members in accordance with the international practice and all the members of AIC have been following the same. In view of that admission, they are bound by the directions issued by the ILO referred to in the body of the judgment. In that view, it is not necessary to issue any direction to Union or State Government to constitute a committee to convert the dry process of manufacturing into wet process but they are bound by the rules not only specifically referred to in the judgment but all the rules in that behalf in the above I.L.O. rules. The Employees State Insurance Act and the Workmens Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workman while in employment. Since the Act does not provide for payment of compensation after cessation of employment, it becomes necessarily to protect such persons from the respective dates of cessation their employment till date Liquidated damages by way of compensational are accepted principal of compensation. In the light of the law above laid down and also on the doctrine of tortuous liability, the respective factories or companies shall be bound to compensate the workmen for the health hazards which is the cause for the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the concerned workmen. | 1[ds]19. It would thus be clear that disease occurs wherever the exposure to the toxic or carcinogenic agent occurs, regardless of the country, the type of industry, job title, job assignment, or location of exposure. The disease will follow the trail of the exposure, and extend the chain of carcinogenic risk beyond the workplace. it is the exposure and the nature of that exposure to asbestos that determines the risk and disease which subsequently result. The development of the carcinogenic risk due to asbestos or any other carcinogenic agent, does not require a continuous exposure. The cancer risk does not cease when the exposure to the carcinogenic agent ceases, but rather the individual carries the increased risk for the remaining years of life. The exposure to asbestos and the resultant long tragic chain of adverse medical, legal and societal consequences remind the legal and social responsibility of the employer or the producer not to endanger the workmen or the community of the society. He or it is not absolved of the inherent responsibility to the exposed workmen or the society at large. They have the responsibility, legal, moral and social to provide protective measures to the workmen and to the public or all those who are exposed to the harmful consequences of their products. Mere adoption of regulations for the enforcement has no real meaning and efficacy without the professional, industrial and governmental resources and legal and moral determination to implement such regulations.The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workmen meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, pubic or private, is enjoined to take all such actions which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentiate to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Art. 21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts. 38 and 39 of the Constitution. Facilities for medical care and health against sickness ensure stable manpower for economic development and would generate devotion to duty and dedication to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen.27. Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking or private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Article 32 and Article 142 of theis, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.32. The Government issued model Rule 123-A under the Factories Act for adoption. Under the directions issued by this Court from time to time, all the State Governments have by now amended their respective rules and adopted the same as part of it but still there are yawning gaps in their effective implementation in that behalf. It is, therefore, necessary to issue appropriate directions. In the light of the rules "All Safety in the Use of Asbestos" issued by the I.L.O. the same shall be binding on all the industries. As a fact, the 13th respondent-Ferdo Ltd. admitted in its written submissions that all the major industries in India have formed an association called the "Asbestos Information Centre" (AIC) affiliated to the Asbestos International Association (AIA), London. The AIA has been publishing a code of conduct for its members in accordance with the international practice and all the members of AIC have been following the same. In view of that admission, they are bound by the directions issued by the ILO referred to in the body of the judgment. In that view, it is not necessary to issue any direction to Union or State Government to constitute a committee to convert the dry process of manufacturing into wet process but they are bound by the rules not only specifically referred to in the judgment but all the rules in that behalf in the above I.L.O. rules. The Employees State Insurance Act and the Workmens Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workman while in employment. Since the Act does not provide for payment of compensation after cessation of employment, it becomes necessarily to protect such persons from the respective dates of cessation their employment till date Liquidated damages by way of compensational are accepted principal of compensation. In the light of the law above laid down and also on the doctrine of tortuous liability, the respective factories or companies shall be bound to compensate the workmen for the health hazards which is the cause for the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the concerned workmen. | 1 | 13,962 | 1,426 | ### Instruction:
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with meaning and hope for millions of peasants and workers that India shall be a socialist democratic republic where social and economic justice will inform all the institutions of national life and there will be equality of status and opportunity for all the every endeavour shall be made to promote fraternity ensuring the dignity of he individual." In that case, the question was whether the labour is entitled to be heard before a company is closed and liquidator is appointed. In considering that question vis-a-vis Art. 43-A of the Constitution, this Court, per majority, held that they are entitled to be heard before appointing a liquidator in a winding up proceedings of the company. 29. In Workmen of Meenakshi Mills Ltd. v. Meenakshi Mills Ltd., 1992(3) SCT 77(SC) : (1992) 3 SCC 336 , a Bench of three Judges considered the vires of Section 25-N of the Industrial Disputes Act on the anvil of Article 19(1)(f) of the Constitution. It was held that the right of the Management under Article 19(1)(f) is subject to the mandates contained in Articles. 38, 39-A, 41 and 43. Accordingly, the fundamental right, under Article 19(1)(g) was held to be subject to the directive principles and Section 25-N does not suffer from the vice of unconstitutionality. 30. It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking or private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Article 32 and Article 142 of the Constitution. 31. Yet another contention of the petitioner is that the workmen affected by asbestosis are suffering from lung cancer and related ailments and they were not properly diagnosed. They be sent to national institute and such to those found suffering from diseases developed due to asbestos, proper compensation be paid. It is needless to reiterate that they need to be re-examined and cause for the disease and the nature of the disease diagnosed. Thereon each one of them whether entitled to damages ? The employer is vicariously liable to pay damages is unquestionable. The award of compensation in proceedings under Article 32 or 226 is a remedy available in public law. In Rudul Sah v. State of Bihar, 1983(3) SCR 508, it was held that this Court under Article 32 can grant compensation for the deprivation of personal liberty, though ordinary process of Court, may be available to enforce the right and money claim could be granted by this Court. Accordingly compensation was awarded. This view was reiterated in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and awarded monetary compensation for custodial death lifting the State immunity from the purview of public law. It is, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.32. The Government issued model Rule 123-A under the Factories Act for adoption. Under the directions issued by this Court from time to time, all the State Governments have by now amended their respective rules and adopted the same as part of it but still there are yawning gaps in their effective implementation in that behalf. It is, therefore, necessary to issue appropriate directions. In the light of the rules "All Safety in the Use of Asbestos" issued by the I.L.O. the same shall be binding on all the industries. As a fact, the 13th respondent-Ferdo Ltd. admitted in its written submissions that all the major industries in India have formed an association called the "Asbestos Information Centre" (AIC) affiliated to the Asbestos International Association (AIA), London. The AIA has been publishing a code of conduct for its members in accordance with the international practice and all the members of AIC have been following the same. In view of that admission, they are bound by the directions issued by the ILO referred to in the body of the judgment. In that view, it is not necessary to issue any direction to Union or State Government to constitute a committee to convert the dry process of manufacturing into wet process but they are bound by the rules not only specifically referred to in the judgment but all the rules in that behalf in the above I.L.O. rules. The Employees State Insurance Act and the Workmens Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workman while in employment. Since the Act does not provide for payment of compensation after cessation of employment, it becomes necessarily to protect such persons from the respective dates of cessation their employment till date Liquidated damages by way of compensational are accepted principal of compensation. In the light of the law above laid down and also on the doctrine of tortuous liability, the respective factories or companies shall be bound to compensate the workmen for the health hazards which is the cause for the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the concerned workmen.
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his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workmen meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or State Government or an industry, pubic or private, is enjoined to take all such actions which will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentiate to live the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the finer facets of life violating Art. 21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts. 38 and 39 of the Constitution. Facilities for medical care and health against sickness ensure stable manpower for economic development and would generate devotion to duty and dedication to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen.27. Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.It would thus be clear that in an appropriate case, the Court would give appropriate directions to the employer, be it the State or its undertaking or private employer to make the right to life meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or even private persons or industry are bound by the directions issued by this Court under Article 32 and Article 142 of theis, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law.32. The Government issued model Rule 123-A under the Factories Act for adoption. Under the directions issued by this Court from time to time, all the State Governments have by now amended their respective rules and adopted the same as part of it but still there are yawning gaps in their effective implementation in that behalf. It is, therefore, necessary to issue appropriate directions. In the light of the rules "All Safety in the Use of Asbestos" issued by the I.L.O. the same shall be binding on all the industries. As a fact, the 13th respondent-Ferdo Ltd. admitted in its written submissions that all the major industries in India have formed an association called the "Asbestos Information Centre" (AIC) affiliated to the Asbestos International Association (AIA), London. The AIA has been publishing a code of conduct for its members in accordance with the international practice and all the members of AIC have been following the same. In view of that admission, they are bound by the directions issued by the ILO referred to in the body of the judgment. In that view, it is not necessary to issue any direction to Union or State Government to constitute a committee to convert the dry process of manufacturing into wet process but they are bound by the rules not only specifically referred to in the judgment but all the rules in that behalf in the above I.L.O. rules. The Employees State Insurance Act and the Workmens Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workman while in employment. Since the Act does not provide for payment of compensation after cessation of employment, it becomes necessarily to protect such persons from the respective dates of cessation their employment till date Liquidated damages by way of compensational are accepted principal of compensation. In the light of the law above laid down and also on the doctrine of tortuous liability, the respective factories or companies shall be bound to compensate the workmen for the health hazards which is the cause for the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the concerned workmen.
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M/S. Dhanrajamal Gobindram Vs. M/S. Shamji Kalidas And Co | becomes completely functus officio.26. But the crux of the argument is that the provisions of sub-sec. (4) of S. 20 read with sub-sec. (1) , ibid., cannot apply, and the Court, after filing the agreement, will have to do nothing more with it, and this shows that S. 20 is not applicable. This argument overlooks the fact that this is a statutory arbitration governed by its own rules, and that the powers and duties of the Court in sub-sec (4) of S. 20 are of two distinct kinds. The first is the judicial function to consider whether the arbitration agreement should be filed in Court or not. That may involve dealing with objections to the existence and validity of the agreement itself. Once that is done, and the Court has decided that the agreement must be filed, the first part of its powers and duties is over. It is significant that an appeal under S. 39 lies only against the decision on this part of sub-sec. (4). Then follows a ministerial act of reference to arbitrator or arbitrators appointed by the parties. That also was perfectly possible in this case, if the parties appointed the arbitrator or arbitrators. If the parties do not agree, the Court may be required to make a decision as to who should be selected as an arbitrator, and that may be a function either judicial, or procedural, or even ministerial; but it is unnecessary to decide which it is. In the present case the parties by their agreement have placed the power of selecting an arbitrator or arbitrators (in which we include also the umpire) in the hands of the Chairman of the Board of Directors of the East India Cotton Association, Ltd., and the Court can certainly perform the ministerial act of sending the agreement to him to be dealt with by him. Once the agreement filed in Court is sent to the Chairman, the Bye-laws lay down the procedure for the Chairman and the appointed arbitrator or arbitrators to follow, and that procedure, if inconsistent with the Arbitration Act prevails. In our opinion, there is no impediment to action being taken under S. 20(4) of the Arbitration Act.27. We may dispose of here a supplementary argument that the dispute till now is about the legal existence of the agreement including the arbitration clause, and that this is not a dispute arising out of, or in relation to a cotton transaction. Reference was made to certain observations in Heyman v. Darwins Ltd., 1942 AC 356. In our opinion, the words of the Bye-law "arising out of or in relation to contracts" are sufficiently wide to comprehend matters, which can legitimately arise under S. 20. The argument is that, when a party questions the very existence of a contract, no dispute can be said to arise out of it. We think that this is not correct, and even if it were, the further words "in relation to" are sufficiently wide to comprehend even such a case. In our opinion, this argument must also fail.28. If was contended lastly that the law applicable to the case is the lex loci solutionis, that is to say, the law of British East Africa. Reference was made to a passage from Pollock and Mullas Contract Act, Eighth Edn., p. 11, where it is observed as follows :"In ordinary circumstances the proper law of a contract (to use Mr. Diceys convenient expression) will be the law of the country where it is made. But where a contract is made in one country and to be performed wholly or in part in another the proper law may be presumed to be the law of the country where it is to be performed." (Auckland Corporation v. Alliance Assurance Co., 1937 AC 587).The learned authors observe, on the same page, further :"But these rules are only in the nature of presumptions, and subject to the intention of the parties, whether expressly declared or inferred from the terms and nature of the contract and the circumstances of the case."Reliance was also placed on Chittys Law of Contract and R. 148, sub-r (3), Second Presumption, in Deceys Conflict of Laws. Seventh Edn., p. 738, on which the statement of the law in Pollock and Mulla is based.29. Whether the proper law is the lex loci contractus or lex loci solutionis is a matter of presumption; but there are accepted rules for determining which of them is applicable. Where the parties have expressed themselves, the intention so expressed overrides any presumption. Where there is no expressed intention, then the rule to apply is to infer the intention from the terms and nature of the contract and from the general circumstances of the case. In the present case, two such circumstances are decisive. The first is that the parties have agreed that in case of dispute the Bombay High Court would have jurisdiction, and an old legal proverb says, " Qui eligit judicem eligit jus." If Courts of a particular country are chosen, it is expected, unless there be either expressed intention or evidence, that they would apply their won law to the case. See N. V. Kwik Hoo Tong Handel v. James Finlay and Co., 1927 AC 604. The second circumstance is that the arbitration clause indicated an arbitration in India. Of such arbitration clauses in agreements, it has been said on more than one occasion that they lead to an inference that the parties have adopted the law of the country in which arbitration is to be made. See Hamlyn and Co. v. Tallisker Distillery, 1894 AC 202 and Spurrier v. La Cloche, 1902 AC 446. This inference, it was said in the last case, can be drawn even in a case where the arbitration clause is void according to the law of the country, where the contract is made and to be performed. In our opinion, in this case, the circumstances clearly establish that the proper law to be applied is the Indian law. | 0[ds]It is contended that S. 21 uses the word "permission", while S. 5 speaks of an exemption, and that Ss. 21(2) and 21(3) do not cover the prohibition in S.Foreign Exchange Regulation Act, no doubt, uses diverse words like, "authorise", "exempt" and "permission" in different parts. The word "exempt" shows that a person is put beyond the application of law, while "permission" shows that he is granted leave to act in a particular way. But the word "permission" is a word of wide import. "Permission" in this section means only leave to do some act which but for the leave would be illegal. In this sense, exemption is just one way of giving leave. If one went only by the word and searched for those sections where the word "permission" is expressly used, Ss. 21(2) and (3) are likely to prove a dead letter. This could not have been intended, and the very elaborate provisions in thoseshow that those matters were contemplated which are the subject of prohibition is S. 5. In our opinion, the argument in without foundation.The contention, that on resale the price would have accrued to the buyers in the first instance, as the sellers would be acting as the agents of the buyers, is also incorrect. It has been rightly pointed out by K. T. Desai, J. that the right of resale given by Ss. 54(2) and (4) of the Indian Sale of Goods Act is exercised by the seller for himself and not as an agent of the buyer, when the latter is given a notice of sale. This is indeed clear from the fact that the buyer is not entitled to the profit on resale in that contingency, though liable for damages. The position is different when no notice is so sent. Then the profits go to the buyer. Perhaps, in that event it may be possible to say that the seller acted as an agent. But, in the case of resale with prior notice, there is no payment to the buyer and no contravention of the Foreign Exchange Regulation Act.15. The contention that the contract involved an actual or, at least, a contingent right to or acquisition of property abroad is not correct. Even if it were so, the contract is saved by s. 21, as already explained. In our opinion, the contract was not void for illegality.(1) prohibits contracts in contravention or evasion, directly or indirectly, of the Foreign Exchange Regulation Act and if there was nothing more then the argument would be understandable. But,(2) provides that the condition that a thing shall not be done without the permission of the Reserve Bank shall not render an agreement invalid, if it is a term of the agreement that the thing shall not be done unless permission is granted by the Central Government or the Reserve Bank and further that it shall be an implied term of every contract governed by the law of any part of India that anything agreed to be done by any term of that contract, which cannot be done except with the permission of the Reserve Bank, shall not be done, unless permission is granted.(3) allows legal proceedings to be brought to recover sum due as a debt, damages or otherwise but no steps shall be taken to enforce the judgment, etc., except to the extent permitted by the Reservesection is perfectly plain, though perhaps it might have been worded better for which a model existed inForeign Exchange Regulation Act, no doubt, uses diverse words like, "authorise", "exempt" and "permission" in different parts. The word "exempt" shows that a person is put beyond the application of law, while "permission" shows that he is granted leave to act in a particular way. But the word "permission" is a word of wide import. "Permission" in this section means only leave to do some act which but for the leave would be illegal. In this sense, exemption is just one way of giving leave. If one went only by the word and searched for those sections where the word "permission" is expressly used, Ss. 21(2) and (3) are likely to prove a dead letter. This could not have been intended, and the very elaborate provisions in thoseshow that those matters were contemplated which are the subject of prohibition is S. 5. In our opinion, the argument in without foundation.e contention, that on resale the price would have accrued to the buyers in the first instance, as the sellers would be acting as the agents of the buyers, is also incorrect. It has been rightly pointed out by K. T. Desai, J. that the right of resale given by Ss. 54(2) and (4) of the Indian Sale of Goods Act is exercised by the seller for himself and not as an agent of the buyer, when the latter is given a notice of sale. This is indeed clear from the fact that the buyer is not entitled to the profit on resale in that contingency, though liable for damages. The position is different when no notice is so sent. Then the profits go to the buyer. Perhaps, in that event it may be possible to say that the seller acted as an agent. But, in the case of resale with prior notice, there is no payment to the buyer and no contravention of the Foreign Exchange Regulation Act.15. The contention that the contract involved an actual or, at least, a contingent right to or acquisition of property abroad is not correct. Even if it were so, the contract is saved by s. 21, as already explained. In our opinion, the contract was not void foranalysis on rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to "force majeure", the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to "force majeure", and even if this be the meaning, it is obvious that the condition about "force majeure" in the agreement was not vague. The use of the word "usual" makes all the difference, and the meaning of the condition may be made certain by evidence about a force majeure clause, which was in contemplation ofwill appear from the decision of the House of Lords that the clause was held to be vague, because no precise meaning could be attributed to it, there being a variety of hire purchase clauses. The use of the word "usual" here, enables evidence to be led to make certain which clause was, in fact, meant. The case of the House of Lords does not, therefore, apply. Both the cases to which we have referred were decided after parties had entered on evidence, which is not the case here.Applying these tests to the present case and in the light of the provisions of S. 29 of the Indian contract Act, it is clear that the clause impugned is capable of being made certain and definite by proof that between the parties or in the trade or in dealings with parties in British East Africa, there was invariably included a force majeure clause of a particular kind.21. In our opinion, the contract was not void for vagueness or uncertainty by reason of the reference in the terms stated, to the force majeure clause.Mr. Daphtary posed the question as to on whom was the burden of proving the usual force majeure clause. In our opinion, if the agreement is not void for uncertainty, that question would be a matter for the decision of the arbitrators. It is too early to say by what evidence and by whom the usual force majeure clause mustour opinion, this argument has no force whatever. Under Cl. 6, the sellers had an absolute discretion either to carry over the goods or to insist on delivery being taken. By this letter, they have said that, if necessary, that is to say, if the buyers find it difficult to supply the number of the import licence, the contract would be carried over to March and April. By this amendment, the sellers surrendered to a certain extent their absolute discretion. The clause means that the contract was not extended to March and April, but that the sellers would extend it to that period, if occasion demanded. Since both the parties agreed to this letter and the buyers confirmed it, it cannot be said that there was no consensus ad idem, or that the whole agreement is void forhave already quoted extracts from the agreement which include the clause by which theof the East India Cotton Association Ltd., Bombay, were applied to this contract, except35, which deals with arbitration on quality in case of East African cotton.1 (B) relates to East African cotton, and it says that1 to 46 inclusive (with certain exceptions) shall apply to contracts in respect of East African cotton. It was conceded before the High Court and also before us that theare statutory. The buyers were members of the Association but not the sellers; but theon arbitration, with which we are concerned, include arbitrations between a member and afollow certain provisions, which were stressed but which need not be quoted in extenso. Shortly stated, they are that the arbitrators must make their award in 15 days, unless time be extended by the Chairman. The umpire is to be appointed within 15 days or such extended period as may be fixed by the Chairman and the umpire is to make his award within 10 days, unless time be extended by the Chairman. In case of disagreement of failure of a party to appoint an arbitrator, the Chairman may appoint an arbitrator, and similarly the Chairman is to appoint the umpire and he may even appoint himself. Other powers are conferred on the Chairman, who is the Chairman of the Board of Directors of the East India Cotton Association46 makes the provisions of any other enactment or any rules made thereunder to prevail over the Arbitration Act, if inconsistent with the latter. In view of these several provisions, it is clear that the Arbitration Act applies to all arbitrations and Chap. III makes it applicable also to arbitrations, in which the arbitration agreement is asked to be filed in Court under S, 20, subject, however, to this that the provisions of any other enactment or rules made thereunder, if inconsistent with the Arbitration Act, are tois not correct. To begin with, questions as to the existence or validity of the agreement are saved from decisions by arbitrators or umpires, however appointed. Since such a plea can only be raised in bar of an application by person seeking a reference to arbitration, at least that portion of the Act still applies, and that power can only be exercised by the Court. Other provisions of Chap. II, like Ss. 15 and 16, still remain applicable. We need not give a list of all the provisions which may be saved, because that will involve an examination side by side, of the sections of the Act and the provisions of theSo long as something is saved, it cannot be said that the Court after receiving the agreement and ordering that it be filed, becomes completely functus officio.26. But the crux of the argument is that the provisions of(4) of S. 20 read with(1) , ibid., cannot apply, and the Court, after filing the agreement, will have to do nothing more with it, and this shows that S. 20 is not applicable. This argument overlooks the fact that this is a statutory arbitration governed by its own rules, and that the powers and duties of the Court in(4) of S. 20 are of two distinct kinds. The first is the judicial function to consider whether the arbitration agreement should be filed in Court or not. That may involve dealing with objections to the existence and validity of the agreement itself. Once that is done, and the Court has decided that the agreement must be filed, the first part of its powers and duties is over. It is significant that an appeal under S. 39 lies only against the decision on this part of(4). Then follows a ministerial act of reference to arbitrator or arbitrators appointed by the parties. That also was perfectly possible in this case, if the parties appointed the arbitrator or arbitrators. If the parties do not agree, the Court may be required to make a decision as to who should be selected as an arbitrator, and that may be a function either judicial, or procedural, or even ministerial; but it is unnecessary to decide which it is. In the present case the parties by their agreement have placed the power of selecting an arbitrator or arbitrators (in which we include also the umpire) in the hands of the Chairman of the Board of Directors of the East India Cotton Association, Ltd., and the Court can certainly perform the ministerial act of sending the agreement to him to be dealt with by him. Once the agreement filed in Court is sent to the Chairman, thelay down the procedure for the Chairman and the appointed arbitrator or arbitrators to follow, and that procedure, if inconsistent with the Arbitration Act prevails. In our opinion, there is no impediment to action being taken under S. 20(4) of the Arbitration Act.27. We may dispose of here a supplementary argument that the dispute till now is about the legal existence of the agreement including the arbitration clause, and that this is not a dispute arising out of, or in relation to a cotton transaction. Reference was made to certain observations in Heyman v. Darwins Ltd., 1942 AC 356. In our opinion, the words of the"arising out of or in relation to contracts" are sufficiently wide to comprehend matters, which can legitimately arise under S. 20. The argument is that, when a party questions the very existence of a contract, no dispute can be said to arise out of it. We think that this is not correct, and even if it were, the further words "in relation to" are sufficiently wide to comprehend even such a case. In our opinion, this argument must also fail.Whether the proper law is the lex loci contractus or lex loci solutionis is a matter of presumption; but there are accepted rules for determining which of them is applicable. Where the parties have expressed themselves, the intention so expressed overrides any presumption. Where there is no expressed intention, then the rule to apply is to infer the intention from the terms and nature of the contract and from the general circumstances of the case. In the present case, two such circumstances are decisive. The first is that the parties have agreed that in case of dispute the Bombay High Court would have jurisdiction, and an old legal proverb says, " Qui eligit judicem eligit jus." If Courts of a particular country are chosen, it is expected, unless there be either expressed intention or evidence, that they would apply their won law to the case. See N. V. Kwik Hoo Tong Handel v. James Finlay and Co., 1927 AC 604. The second circumstance is that the arbitration clause indicated an arbitration in India. Of such arbitration clauses in agreements, it has been said on more than one occasion that they lead to an inference that the parties have adopted the law of the country in which arbitration is to be made. See Hamlyn and Co. v. Tallisker Distillery, 1894 AC 202 and Spurrier v. La Cloche, 1902 AC 446. This inference, it was said in the last case, can be drawn even in a case where the arbitration clause is void according to the law of the country, where the contract is made and to be performed. In our opinion, in this case, the circumstances clearly establish that the proper law to be applied is the Indian law. | 0 | 8,203 | 3,052 | ### 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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becomes completely functus officio.26. But the crux of the argument is that the provisions of sub-sec. (4) of S. 20 read with sub-sec. (1) , ibid., cannot apply, and the Court, after filing the agreement, will have to do nothing more with it, and this shows that S. 20 is not applicable. This argument overlooks the fact that this is a statutory arbitration governed by its own rules, and that the powers and duties of the Court in sub-sec (4) of S. 20 are of two distinct kinds. The first is the judicial function to consider whether the arbitration agreement should be filed in Court or not. That may involve dealing with objections to the existence and validity of the agreement itself. Once that is done, and the Court has decided that the agreement must be filed, the first part of its powers and duties is over. It is significant that an appeal under S. 39 lies only against the decision on this part of sub-sec. (4). Then follows a ministerial act of reference to arbitrator or arbitrators appointed by the parties. That also was perfectly possible in this case, if the parties appointed the arbitrator or arbitrators. If the parties do not agree, the Court may be required to make a decision as to who should be selected as an arbitrator, and that may be a function either judicial, or procedural, or even ministerial; but it is unnecessary to decide which it is. In the present case the parties by their agreement have placed the power of selecting an arbitrator or arbitrators (in which we include also the umpire) in the hands of the Chairman of the Board of Directors of the East India Cotton Association, Ltd., and the Court can certainly perform the ministerial act of sending the agreement to him to be dealt with by him. Once the agreement filed in Court is sent to the Chairman, the Bye-laws lay down the procedure for the Chairman and the appointed arbitrator or arbitrators to follow, and that procedure, if inconsistent with the Arbitration Act prevails. In our opinion, there is no impediment to action being taken under S. 20(4) of the Arbitration Act.27. We may dispose of here a supplementary argument that the dispute till now is about the legal existence of the agreement including the arbitration clause, and that this is not a dispute arising out of, or in relation to a cotton transaction. Reference was made to certain observations in Heyman v. Darwins Ltd., 1942 AC 356. In our opinion, the words of the Bye-law "arising out of or in relation to contracts" are sufficiently wide to comprehend matters, which can legitimately arise under S. 20. The argument is that, when a party questions the very existence of a contract, no dispute can be said to arise out of it. We think that this is not correct, and even if it were, the further words "in relation to" are sufficiently wide to comprehend even such a case. In our opinion, this argument must also fail.28. If was contended lastly that the law applicable to the case is the lex loci solutionis, that is to say, the law of British East Africa. Reference was made to a passage from Pollock and Mullas Contract Act, Eighth Edn., p. 11, where it is observed as follows :"In ordinary circumstances the proper law of a contract (to use Mr. Diceys convenient expression) will be the law of the country where it is made. But where a contract is made in one country and to be performed wholly or in part in another the proper law may be presumed to be the law of the country where it is to be performed." (Auckland Corporation v. Alliance Assurance Co., 1937 AC 587).The learned authors observe, on the same page, further :"But these rules are only in the nature of presumptions, and subject to the intention of the parties, whether expressly declared or inferred from the terms and nature of the contract and the circumstances of the case."Reliance was also placed on Chittys Law of Contract and R. 148, sub-r (3), Second Presumption, in Deceys Conflict of Laws. Seventh Edn., p. 738, on which the statement of the law in Pollock and Mulla is based.29. Whether the proper law is the lex loci contractus or lex loci solutionis is a matter of presumption; but there are accepted rules for determining which of them is applicable. Where the parties have expressed themselves, the intention so expressed overrides any presumption. Where there is no expressed intention, then the rule to apply is to infer the intention from the terms and nature of the contract and from the general circumstances of the case. In the present case, two such circumstances are decisive. The first is that the parties have agreed that in case of dispute the Bombay High Court would have jurisdiction, and an old legal proverb says, " Qui eligit judicem eligit jus." If Courts of a particular country are chosen, it is expected, unless there be either expressed intention or evidence, that they would apply their won law to the case. See N. V. Kwik Hoo Tong Handel v. James Finlay and Co., 1927 AC 604. The second circumstance is that the arbitration clause indicated an arbitration in India. Of such arbitration clauses in agreements, it has been said on more than one occasion that they lead to an inference that the parties have adopted the law of the country in which arbitration is to be made. See Hamlyn and Co. v. Tallisker Distillery, 1894 AC 202 and Spurrier v. La Cloche, 1902 AC 446. This inference, it was said in the last case, can be drawn even in a case where the arbitration clause is void according to the law of the country, where the contract is made and to be performed. In our opinion, in this case, the circumstances clearly establish that the proper law to be applied is the Indian law.
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enactment or any rules made thereunder to prevail over the Arbitration Act, if inconsistent with the latter. In view of these several provisions, it is clear that the Arbitration Act applies to all arbitrations and Chap. III makes it applicable also to arbitrations, in which the arbitration agreement is asked to be filed in Court under S, 20, subject, however, to this that the provisions of any other enactment or rules made thereunder, if inconsistent with the Arbitration Act, are tois not correct. To begin with, questions as to the existence or validity of the agreement are saved from decisions by arbitrators or umpires, however appointed. Since such a plea can only be raised in bar of an application by person seeking a reference to arbitration, at least that portion of the Act still applies, and that power can only be exercised by the Court. Other provisions of Chap. II, like Ss. 15 and 16, still remain applicable. We need not give a list of all the provisions which may be saved, because that will involve an examination side by side, of the sections of the Act and the provisions of theSo long as something is saved, it cannot be said that the Court after receiving the agreement and ordering that it be filed, becomes completely functus officio.26. But the crux of the argument is that the provisions of(4) of S. 20 read with(1) , ibid., cannot apply, and the Court, after filing the agreement, will have to do nothing more with it, and this shows that S. 20 is not applicable. This argument overlooks the fact that this is a statutory arbitration governed by its own rules, and that the powers and duties of the Court in(4) of S. 20 are of two distinct kinds. The first is the judicial function to consider whether the arbitration agreement should be filed in Court or not. That may involve dealing with objections to the existence and validity of the agreement itself. Once that is done, and the Court has decided that the agreement must be filed, the first part of its powers and duties is over. It is significant that an appeal under S. 39 lies only against the decision on this part of(4). Then follows a ministerial act of reference to arbitrator or arbitrators appointed by the parties. That also was perfectly possible in this case, if the parties appointed the arbitrator or arbitrators. If the parties do not agree, the Court may be required to make a decision as to who should be selected as an arbitrator, and that may be a function either judicial, or procedural, or even ministerial; but it is unnecessary to decide which it is. In the present case the parties by their agreement have placed the power of selecting an arbitrator or arbitrators (in which we include also the umpire) in the hands of the Chairman of the Board of Directors of the East India Cotton Association, Ltd., and the Court can certainly perform the ministerial act of sending the agreement to him to be dealt with by him. Once the agreement filed in Court is sent to the Chairman, thelay down the procedure for the Chairman and the appointed arbitrator or arbitrators to follow, and that procedure, if inconsistent with the Arbitration Act prevails. In our opinion, there is no impediment to action being taken under S. 20(4) of the Arbitration Act.27. We may dispose of here a supplementary argument that the dispute till now is about the legal existence of the agreement including the arbitration clause, and that this is not a dispute arising out of, or in relation to a cotton transaction. Reference was made to certain observations in Heyman v. Darwins Ltd., 1942 AC 356. In our opinion, the words of the"arising out of or in relation to contracts" are sufficiently wide to comprehend matters, which can legitimately arise under S. 20. The argument is that, when a party questions the very existence of a contract, no dispute can be said to arise out of it. We think that this is not correct, and even if it were, the further words "in relation to" are sufficiently wide to comprehend even such a case. In our opinion, this argument must also fail.Whether the proper law is the lex loci contractus or lex loci solutionis is a matter of presumption; but there are accepted rules for determining which of them is applicable. Where the parties have expressed themselves, the intention so expressed overrides any presumption. Where there is no expressed intention, then the rule to apply is to infer the intention from the terms and nature of the contract and from the general circumstances of the case. In the present case, two such circumstances are decisive. The first is that the parties have agreed that in case of dispute the Bombay High Court would have jurisdiction, and an old legal proverb says, " Qui eligit judicem eligit jus." If Courts of a particular country are chosen, it is expected, unless there be either expressed intention or evidence, that they would apply their won law to the case. See N. V. Kwik Hoo Tong Handel v. James Finlay and Co., 1927 AC 604. The second circumstance is that the arbitration clause indicated an arbitration in India. Of such arbitration clauses in agreements, it has been said on more than one occasion that they lead to an inference that the parties have adopted the law of the country in which arbitration is to be made. See Hamlyn and Co. v. Tallisker Distillery, 1894 AC 202 and Spurrier v. La Cloche, 1902 AC 446. This inference, it was said in the last case, can be drawn even in a case where the arbitration clause is void according to the law of the country, where the contract is made and to be performed. In our opinion, in this case, the circumstances clearly establish that the proper law to be applied is the Indian law.
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Subramaniam Vs. State Of Tamil Nadu | that I will protect my child. Hence, as and after thought they had foisted the false case against me. I am innocent." 23. The finding of the High Court that appellant had to prove title of his land ex facie is incorrect. P.W. 1 categorically stated that appellant had three acres of land. P.W. 3 also accepted that land of the appellant is almost by the side of his land. In view of the admission made by the prosecution witnesses, the High Court, in our opinion, committed a serious error in arriving at a conclusion that he did not possess any land whatsoever. Mr. Kanagaraj, however, would submit that even if he had gone for irrigating his land, the same may not take much time. In any event, having regard to the evidence of P.W. 3, it is wholly unlikely that he was absent from his house. There are two aspects of the matter. One is that the reasoning of the High Court that he did not have any land whatsoever and, therefore, he must be presumed to have been in his house only appears to be wholly incorrect. But even assuming that he did not have any land and he in fact went to P.W. 3 for the purpose of taking his wife to hospital may not by itself be a ground for holding him guilty. Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt.24. Another aspect of the matter cannot be lost sight of. According to P.W. 2, police had already arrived when they reached at the place of occurrence on the next day morning. P.W. 2 in his evidence, stated:"While, ourselves along with the relatives reached the village of my son-in-law it would be 6.00 or 7.00 a.m. While we went there the police were present, who had enquired the villagers and ourselves. The Tahsildar had made the enquiry but I do not remember the date."The said statement was corroborated by P.W. 3 in his evidence, stating:"I went and conveyed the information to her mother and again returned where the wife of the accused was lying and he could be around 4 or 5 a.m. I am not aware as to who had conveyed the information to the police. Within a short time after I went there the police arrived and the father-in- law and mother-in-law of the accused arrived around 9o clock. Prior to the arrival of the father- in-law and mother-in-law of the accused the police enquired me, and also the neighbours. After the arrival of father-in-law and mother-in-law of the accused they were enquired by the police."P.W. 11 - Sivakumar, Sub-Inspector in his evidence could not say at what time he had arrived at the place of occurrence when a pointed question was put to him.25. The police must have received some information. Why the other information was suppressed by the prosecution has not been explained. In a situation of this nature particularly if an FIR was lodged after recording the statements of the witnesses, another FIR would not be admissible in evidence and ordinarily an investigation cannot be started without recording the FIR.26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654] , the same was held to be one of the circumstances against the prosecution, stating:"The High Court has also pointed out that no reliance could be placed on the FIR which contains the names of the assailants because PW 1 in his cross-examination has admitted that the FIR was taken down after the Inspector visited the site and they were then taken to the police station."27. Admittedly, a plastic bottle was found near the cot. It was seen by P.W. 3. However, his statement that he did not find any smell coming out from the mouth of the deceased is difficult to accept. He is not an expert. It is wholly unlikely that he having observed that death had already taken place, he would smell the mouth of the deceased. The possibility that having seen the bottle which admittedly at one point of time contained some poison, appellants assuming that she had consumed poison and rushing to the house of the P.W. 3 who might have been in a position to make arrangement for shifting her to hospital cannot be ruled out. In so assuming, he might have committed a mistake but it is also difficult to arrive at a definite conclusion that only because a plastic bottle was found, appellant must have deliberately kept it so as to raise a false plea. We do not think that any such conclusion can be arrived at. If such a conclusion was arrived at, the same would amount to surmise and conjecture. The High Court was considering a judgment of acquittal; it set aside a part of the finding of the learned Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the learned Sessions Judge, in our opinion, cannot be said to be wholly unreasonable or otherwise perverse. Circumstances brought on record by the prosecution, in our opinion, are not such which would lead to a definite conclusion that appellant and appellant alone had committed the offence. In the aforementioned situation, the High Court should have approached the case with some caution.28. In K. Prakashan vs. P.K. Surenderan [(2008) 1 SCC 258] , this Court held:"We, therefore, are of the opinion that keeping in view the peculiar fact situation obtaining in the present case it cannot be said that the judgment passed by the learned trial judge was perverse or suffered from any legal infirmity. It was not a case where the learned trial judge failed to consider the evidence brought on record and/or misappreciated the same." | 1[ds]24. We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. This is one such case where we find that there is a reasonable doubt in regard to the cause of death of Jabeena and we find it not safe to rely upon the evidence of PW-8, solely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.The finding of the High Court that appellant had to prove title of his land ex facie is incorrect. P.W. 1 categorically stated that appellant had three acres of land. P.W. 3 also accepted that land of the appellant is almost by the side of his land. In view of the admission made by the prosecution witnesses, the High Court, in our opinion, committed a serious error in arriving at a conclusion that he did not possess any land whatsoever. Mr. Kanagaraj, however, would submit that even if he had gone for irrigating his land, the same may not take much time. In any event, having regard to the evidence of P.W. 3, it is wholly unlikely that he was absent from his house. There are two aspects of the matter. One is that the reasoning of the High Court that he did not have any land whatsoever and, therefore, he must be presumed to have been in his house only appears to be wholly incorrect. But even assuming that he did not have any land and he in fact went to P.W. 3 for the purpose of taking his wife to hospital may not by itself be a ground for holding him guilty. Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt.24. Another aspect of the matter cannot be lost sight of. According to P.W. 2, police had already arrived when they reached at the place of occurrence on the next day morning. P.W. 2 in his evidence, stated:"While, ourselves along with the relatives reached the village of my son-in-law it would be 6.00 or 7.00 a.m. While we went there the police were present, who had enquired the villagers and ourselves. The Tahsildar had made the enquiry but I do not remember the date."The said statement was corroborated by P.W. 3 in his evidence, stating:"I went and conveyed the information to her mother and again returned where the wife of the accused was lying and he could be around 4 or 5 a.m. I am not aware as to who had conveyed the information to the police. Within a short time after I went there the police arrived and the father-in- law and mother-in-law of the accused arrived around 9o clock. Prior to the arrival of the father- in-law and mother-in-law of the accused the police enquired me, and also the neighbours. After the arrival of father-in-law and mother-in-law of the accused they were enquired by the police."P.W. 11 - Sivakumar, Sub-Inspector in his evidence could not say at what time he had arrived at the place of occurrence when a pointed question was put to him.25. The police must have received some information. Why the other information was suppressed by the prosecution has not been explained. In a situation of this nature particularly if an FIR was lodged after recording the statements of the witnesses, another FIR would not be admissible in evidence and ordinarily an investigation cannot be started without recording the FIR.26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654] , the same was held to be one of the circumstances against the prosecution, stating:"The High Court has also pointed out that no reliance could be placed on the FIR which contains the names of the assailants because PW 1 in his cross-examination has admitted that the FIR was taken down after the Inspector visited the site and they were then taken to the police station."27. Admittedly, a plastic bottle was found near the cot. It was seen by P.W. 3. However, his statement that he did not find any smell coming out from the mouth of the deceased is difficult to accept. He is not an expert. It is wholly unlikely that he having observed that death had already taken place, he would smell the mouth of the deceased. The possibility that having seen the bottle which admittedly at one point of time contained some poison, appellants assuming that she had consumed poison and rushing to the house of the P.W. 3 who might have been in a position to make arrangement for shifting her to hospital cannot be ruled out. In so assuming, he might have committed a mistake but it is also difficult to arrive at a definite conclusion that only because a plastic bottle was found, appellant must have deliberately kept it so as to raise a false plea. We do not think that any such conclusion can be arrived at. If such a conclusion was arrived at, the same would amount to surmise and conjecture. The High Court was considering a judgment of acquittal; it set aside a part of the finding of the learned Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the learned Sessions Judge, in our opinion, cannot be said to be wholly unreasonable or otherwise perverse. Circumstances brought on record by the prosecution, in our opinion, are not such which would lead to a definite conclusion that appellant and appellant alone had committed the offence. In the aforementioned situation, the High Court should have approached the case with some caution.28. In K. Prakashan vs. P.K. Surenderan [(2008) 1 SCC 258] , this Court held:"We, therefore, are of the opinion that keeping in view the peculiar fact situation obtaining in the present case it cannot be said that the judgment passed by the learned trial judge was perverse or suffered from any legal infirmity. It was not a case where the learned trial judge failed to consider the evidence brought on record and/or misappreciated the same." | 1 | 7,763 | 1,228 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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that I will protect my child. Hence, as and after thought they had foisted the false case against me. I am innocent." 23. The finding of the High Court that appellant had to prove title of his land ex facie is incorrect. P.W. 1 categorically stated that appellant had three acres of land. P.W. 3 also accepted that land of the appellant is almost by the side of his land. In view of the admission made by the prosecution witnesses, the High Court, in our opinion, committed a serious error in arriving at a conclusion that he did not possess any land whatsoever. Mr. Kanagaraj, however, would submit that even if he had gone for irrigating his land, the same may not take much time. In any event, having regard to the evidence of P.W. 3, it is wholly unlikely that he was absent from his house. There are two aspects of the matter. One is that the reasoning of the High Court that he did not have any land whatsoever and, therefore, he must be presumed to have been in his house only appears to be wholly incorrect. But even assuming that he did not have any land and he in fact went to P.W. 3 for the purpose of taking his wife to hospital may not by itself be a ground for holding him guilty. Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt.24. Another aspect of the matter cannot be lost sight of. According to P.W. 2, police had already arrived when they reached at the place of occurrence on the next day morning. P.W. 2 in his evidence, stated:"While, ourselves along with the relatives reached the village of my son-in-law it would be 6.00 or 7.00 a.m. While we went there the police were present, who had enquired the villagers and ourselves. The Tahsildar had made the enquiry but I do not remember the date."The said statement was corroborated by P.W. 3 in his evidence, stating:"I went and conveyed the information to her mother and again returned where the wife of the accused was lying and he could be around 4 or 5 a.m. I am not aware as to who had conveyed the information to the police. Within a short time after I went there the police arrived and the father-in- law and mother-in-law of the accused arrived around 9o clock. Prior to the arrival of the father- in-law and mother-in-law of the accused the police enquired me, and also the neighbours. After the arrival of father-in-law and mother-in-law of the accused they were enquired by the police."P.W. 11 - Sivakumar, Sub-Inspector in his evidence could not say at what time he had arrived at the place of occurrence when a pointed question was put to him.25. The police must have received some information. Why the other information was suppressed by the prosecution has not been explained. In a situation of this nature particularly if an FIR was lodged after recording the statements of the witnesses, another FIR would not be admissible in evidence and ordinarily an investigation cannot be started without recording the FIR.26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654] , the same was held to be one of the circumstances against the prosecution, stating:"The High Court has also pointed out that no reliance could be placed on the FIR which contains the names of the assailants because PW 1 in his cross-examination has admitted that the FIR was taken down after the Inspector visited the site and they were then taken to the police station."27. Admittedly, a plastic bottle was found near the cot. It was seen by P.W. 3. However, his statement that he did not find any smell coming out from the mouth of the deceased is difficult to accept. He is not an expert. It is wholly unlikely that he having observed that death had already taken place, he would smell the mouth of the deceased. The possibility that having seen the bottle which admittedly at one point of time contained some poison, appellants assuming that she had consumed poison and rushing to the house of the P.W. 3 who might have been in a position to make arrangement for shifting her to hospital cannot be ruled out. In so assuming, he might have committed a mistake but it is also difficult to arrive at a definite conclusion that only because a plastic bottle was found, appellant must have deliberately kept it so as to raise a false plea. We do not think that any such conclusion can be arrived at. If such a conclusion was arrived at, the same would amount to surmise and conjecture. The High Court was considering a judgment of acquittal; it set aside a part of the finding of the learned Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the learned Sessions Judge, in our opinion, cannot be said to be wholly unreasonable or otherwise perverse. Circumstances brought on record by the prosecution, in our opinion, are not such which would lead to a definite conclusion that appellant and appellant alone had committed the offence. In the aforementioned situation, the High Court should have approached the case with some caution.28. In K. Prakashan vs. P.K. Surenderan [(2008) 1 SCC 258] , this Court held:"We, therefore, are of the opinion that keeping in view the peculiar fact situation obtaining in the present case it cannot be said that the judgment passed by the learned trial judge was perverse or suffered from any legal infirmity. It was not a case where the learned trial judge failed to consider the evidence brought on record and/or misappreciated the same."
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the evidence of PW-8, solely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.The finding of the High Court that appellant had to prove title of his land ex facie is incorrect. P.W. 1 categorically stated that appellant had three acres of land. P.W. 3 also accepted that land of the appellant is almost by the side of his land. In view of the admission made by the prosecution witnesses, the High Court, in our opinion, committed a serious error in arriving at a conclusion that he did not possess any land whatsoever. Mr. Kanagaraj, however, would submit that even if he had gone for irrigating his land, the same may not take much time. In any event, having regard to the evidence of P.W. 3, it is wholly unlikely that he was absent from his house. There are two aspects of the matter. One is that the reasoning of the High Court that he did not have any land whatsoever and, therefore, he must be presumed to have been in his house only appears to be wholly incorrect. But even assuming that he did not have any land and he in fact went to P.W. 3 for the purpose of taking his wife to hospital may not by itself be a ground for holding him guilty. Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt.24. Another aspect of the matter cannot be lost sight of. According to P.W. 2, police had already arrived when they reached at the place of occurrence on the next day morning. P.W. 2 in his evidence, stated:"While, ourselves along with the relatives reached the village of my son-in-law it would be 6.00 or 7.00 a.m. While we went there the police were present, who had enquired the villagers and ourselves. The Tahsildar had made the enquiry but I do not remember the date."The said statement was corroborated by P.W. 3 in his evidence, stating:"I went and conveyed the information to her mother and again returned where the wife of the accused was lying and he could be around 4 or 5 a.m. I am not aware as to who had conveyed the information to the police. Within a short time after I went there the police arrived and the father-in- law and mother-in-law of the accused arrived around 9o clock. Prior to the arrival of the father- in-law and mother-in-law of the accused the police enquired me, and also the neighbours. After the arrival of father-in-law and mother-in-law of the accused they were enquired by the police."P.W. 11 - Sivakumar, Sub-Inspector in his evidence could not say at what time he had arrived at the place of occurrence when a pointed question was put to him.25. The police must have received some information. Why the other information was suppressed by the prosecution has not been explained. In a situation of this nature particularly if an FIR was lodged after recording the statements of the witnesses, another FIR would not be admissible in evidence and ordinarily an investigation cannot be started without recording the FIR.26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654] , the same was held to be one of the circumstances against the prosecution, stating:"The High Court has also pointed out that no reliance could be placed on the FIR which contains the names of the assailants because PW 1 in his cross-examination has admitted that the FIR was taken down after the Inspector visited the site and they were then taken to the police station."27. Admittedly, a plastic bottle was found near the cot. It was seen by P.W. 3. However, his statement that he did not find any smell coming out from the mouth of the deceased is difficult to accept. He is not an expert. It is wholly unlikely that he having observed that death had already taken place, he would smell the mouth of the deceased. The possibility that having seen the bottle which admittedly at one point of time contained some poison, appellants assuming that she had consumed poison and rushing to the house of the P.W. 3 who might have been in a position to make arrangement for shifting her to hospital cannot be ruled out. In so assuming, he might have committed a mistake but it is also difficult to arrive at a definite conclusion that only because a plastic bottle was found, appellant must have deliberately kept it so as to raise a false plea. We do not think that any such conclusion can be arrived at. If such a conclusion was arrived at, the same would amount to surmise and conjecture. The High Court was considering a judgment of acquittal; it set aside a part of the finding of the learned Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the learned Sessions Judge, in our opinion, cannot be said to be wholly unreasonable or otherwise perverse. Circumstances brought on record by the prosecution, in our opinion, are not such which would lead to a definite conclusion that appellant and appellant alone had committed the offence. In the aforementioned situation, the High Court should have approached the case with some caution.28. In K. Prakashan vs. P.K. Surenderan [(2008) 1 SCC 258] , this Court held:"We, therefore, are of the opinion that keeping in view the peculiar fact situation obtaining in the present case it cannot be said that the judgment passed by the learned trial judge was perverse or suffered from any legal infirmity. It was not a case where the learned trial judge failed to consider the evidence brought on record and/or misappreciated the same."
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Rajib Ranjan Vs. R.Vijaykumar | applicable in the present case. 18. Having regard to the circumstances narrated and explained above, we are also of the view that attempt is made by the respondent to convert a case with civil nature into criminal prosecution. In a case like this, High Court would have been justified in quashing the proceedings in exercise of its inherent powers under Section 482 of the Code. It would be of benefit to refer to the judgment in the case of Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC 736 , wherein the Court adversely commented upon this very tendency of filing criminal complaints even in cases relating to commercial transaction for which civil remedy is available is available or has been availed. The Court held that the following observations of the Court in this behalf are taken note of: “13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 , this Court observed: (SCC p. 643, para 8)“It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.”14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.” 19. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 , the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words: “23. This Court in a number of cases has laid down the scope and ambit of courts powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:(i) to give effect to an order under the Code;(ii) to prevent abuse of the process of court, and(iii) to otherwise secure the ends of justice.24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.Discussion of decided cases25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the courts power to prevent such abuse is of great constitutional importance and should be jealously preserved.46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.” 20. | 1[ds]Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connellyv. DPP, 1 1964 AC1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPPv. Humphrys, 1977 AC 1stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the courts power to prevent such abuse is of great constitutional importance and should be jealously preserved.46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be | 1 | 6,338 | 299 | ### Instruction:
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applicable in the present case. 18. Having regard to the circumstances narrated and explained above, we are also of the view that attempt is made by the respondent to convert a case with civil nature into criminal prosecution. In a case like this, High Court would have been justified in quashing the proceedings in exercise of its inherent powers under Section 482 of the Code. It would be of benefit to refer to the judgment in the case of Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC 736 , wherein the Court adversely commented upon this very tendency of filing criminal complaints even in cases relating to commercial transaction for which civil remedy is available is available or has been availed. The Court held that the following observations of the Court in this behalf are taken note of: “13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 , this Court observed: (SCC p. 643, para 8)“It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.”14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.” 19. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 , the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words: “23. This Court in a number of cases has laid down the scope and ambit of courts powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:(i) to give effect to an order under the Code;(ii) to prevent abuse of the process of court, and(iii) to otherwise secure the ends of justice.24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.Discussion of decided cases25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the courts power to prevent such abuse is of great constitutional importance and should be jealously preserved.46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.” 20.
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Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connellyv. DPP, 1 1964 AC1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPPv. Humphrys, 1977 AC 1stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the courts power to prevent such abuse is of great constitutional importance and should be jealously preserved.46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be
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Saghir Ahmad Vs. The State Of U. P. And Others.(With Connected Appeal) | commerce and intercourse provided for by Article 301 of the Constitution? Article 301 runs as follows :"Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free."Article 302 authorises the Parliament to impose such restrictions on the freedom of trade, commerce and intercourse between one State and another or within any part of the territory of India as may be required in the public interests. Under Article 304 (b) it is competent even for the Legislature of a State to impose reasonable restrictions upon freedom of trade, commerce and intercourse mentioned above in the interest of the public, but it is necessary that any bill or amendment for this purpose should first receive the sanction of the President before it is moved or introduced in the Legislature of a State. Article 301 corresponds to Section 92 of the Australian Constitution and is even wider than the latter inasmuch as the Australian Constitution provides for the freedom of inter-State trade only.The High Court has negatived the contention of the appellants on this points primarily on the ground that Article 301 of the Constitution has no application to the present case. What is said is, that the Article 301 provides safeguards for carrying on trade as a whole as distinguished from the rights of an individual to carry it on. In other words, this article is concerned with the passage of commodities or persons either within or outside the State frontiers but not directly with individuals carrying on the commerce or trade. The right of individuals, it is said, is dealt with under Article 19(1)(g) of the Constitution and the two articles have been framed in order to secure two different objects.30. The question is not quite free from difficulty and in view of the fact that we have declared the Act to be unconstitutional on the two grounds mentioned above, we do not consider it necessary to record our decision on the point. We would only desire to indicate the contentions that have been or could be raised upon this point and the different views that are possible to be taken in respect to them so that the Legislature might take these matters into consideration if and when they think of legislating on this subject.31. We desire to point out that in regard to section 92 of the Australian Constitution, which so far as inter-State trade is concerned adopts almost the same language as Article 301 of our Constitution, it has been difinitely held by the Judicial Committee in the case of 1950 AC 235 (J) that the rights of individuals do come within the purview of the section. It is true, as Lord Porter observed, that section 92 does not create any new juristic rights but it does give the citizens of the State or the Common-Wealth, as the case may be, the right to ignore and, if necessary, to call on the judicial power to help him to resist legislative or executive actions which offend against the section. It follows from this as His Lordship pointed out, that the application of section 92 does not involve calculations as to the actual present or possible future effect upon the total value of inter-State trade, the difficulty in applying such a criterion being too obvious. If this view is adopted in regard to Article 301 of our Constitution it can plausibly be argued that the legislation in the present case is invalid as contravening the terms of the article. The question of reasonable restrictions could not also arise in this case, as the bill was not introduced with the previous sanction of the President as required by the proviso to the Section 304 (b). It is true that the consent of the President was taken subsequently but the proviso expressly insists on the sanction being taken previous to the introduction of the bill.32. It may be argued that freedom of trade does not, as Lord Portor observed in the ---Australian Bank case, (J) referred to above, mean unrestricted or unrestrained freedom and that regulation of trade is quite compatible with its freedom. As against this it may be pointed out that the constitution itself has provided in Art.302 and 304 (b) how reasonable restrictions could be imposed upon freedom of trade and commerce and it would not be proper to hold that restrictions can be imposed aliunde these provisions in the Constitution. The question would also arise as to what interpretation should be put upon the expression "reasonable restrictions" and whether or not as would have to apply the same tests as we have applied in regard to Article 19(6) of the Constitution. One material thing to consider in this connection would be that although the constitution was amended in 1951 by insertion of an additional clause in Article 19(6) by which State monopoly in regard to trade or business was taken out of the purview of Article 19(1)(g) of the Constitution, yet no such addition was made in Article 301 or Article 304 of the Constitution and Article 301, as it stands, guarantees freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights.33. The Australian Constitution indeed has no provision like Article 19(1)(g) of the Indian Constitution and it is certainly an arguable point as to whether the rights of individuals alone are dealt with in Article 19(1)(g) of the Constitution leaving the freedom of trade and commerce, meaning by that expression only the free passage of persons and goods, within or without a State to be dealt with under Article 301 and the following articles.34. We have thus indicated only the points that could be raised and the possible views that could be taken but as we have said already, we do not desire to express any final opinion on these points as it is unnecessary for purposes of the present case. | 1[ds]Over the latter the State claims and exercises a plenary power of control. Ayyar, J. has, in our opinion, rightly pointed out that this doctrine of franchise has no place in our Constitution. Under the Indian Constitution the contract carriers as well as the common carriers would occupy the same position so far as the guaranteed right under Article 19(1)(g) is concerned and both are liable to be controlled by appropriate regulations under clause (6) of that Article.We are in entire agreement with the statement of law made in these passages. Within the limits imposed by State regulations any member of the public can ply motor vehicle on a public road. To the extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in Article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article.Article 19(6) of the Constitution as it stands after the amendment of 1951, makes a three-fold provision by way of exception to or limitation upon clause (1) (g) of the Article. In the first place it empowers the State to impose reasonable restriction upon the freedom of trade, business, occupation or profession in the interest of the general public. In the second place it empowers the State to prescribe the professional and technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. Thirdly,....and this is the result of the Constitution (First) Amendment Act of 1951 --- it enables the State to carry on any trade or business either by itself or through a corporation owned or controlled by the State to the exclusion of private citizens wholly or in part.Against this view it may be urged that the use of the words "deprivation" and "restrictions" as interchangeable expressions is not altogether unusual in ordinary language and the nature and extent of restrictions might in some cases amount to a negation of themay be mentioned here that the Excise Regulation is not a prohibitory statute which prohibits trading in liquor by private citizens altogether. It purports to regulate the trade in a particular way, namely, by putting up the right of trading in liquor in specified areas to the highest bidder in auction sale. The general observations occurring in the judgment cited above must therefore have to be taken with reference to the facts of that case.21. Be that as it may although in our opinion the normal use of the word "restriction" seems to be in the sense of limitation and not extinction, we would on this occasion prefer not to express any final opinion on this matter. If the word, restriction does not include total prohibition then the law under review cannot be justified under Article 19(6). In that case the law would be void unless it can be supported by Article 31. That point will be dealt with under the other point raised in the appeal. If however the word "restriction" in Article 19 (6) of the Constitution be taken in certain circumstances to include prohibition as well, the point for consideration then would be, whether prohibition of the right of all private citizens to carry on the business of motor transport on public roads within the State of Uttar Pradesh as laid down by the Act can be justified as reasonable restrictions imposed in the interests of the generalorder to judge whether State monopoly is reasonable or not, regard therefore must be had to the facts of each particular case in its own setting if time and circumstances . It is not enough to say as an efficient transport service is conducive to the interests of the people, a legislation which makes provision for such service must always be held valid irrespective of the fact as to what the effect of such legislation would be and irrespective of the particular conditions and circumstances under which the legislation was passed. It is not enough that the restrictions are for the benefit of the public, they must be reasonable as well and reasonableness could be decided only on a conspectus of all relevant facts andis undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19 (1)(g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article. If the respondents do not place any materials before the Court to establish that the legislation comes within the permissible limits of clause (6), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conductive to the welfare of thething, however, in our opinion, has a decided bearing on the question of reasonableness and that is the immediate effect which the legislation is likely to produce. Hundreds of citizens are earning their livelihood by carrying on this business on various routes within the State of Uttar Pradesh. Although they carry on the business only with the aid of permits, which are granted to them by the authorities under the Motor Vehicles Act, no compensation has been allowed to them under the statute. It goes without saying that as a result of the Act they will all be deprived of the means of supporting themselves and their families and they will be left with their buses which will be of no further use to them and which they may not be able to dispose of easily or at a reasonable price.It may be pointed out in this connection that in Part IV of the Constitution which enunciates the directive principles of State policy, Article 39(a) expressly lays down that the State shall direct its policy towards securing "that the citizens, men and women equally, have the right to an adequate means of livelihood."The new clause in Article 19(6) has no doubt been introduced with a view to provide that a State can create a monopoly in its own favour in respect of any trade or business but the amendment does not make the establishment of such monopoly a reasonable restriction within the meaning of the first clause of Art. 19(6). The result of the amendment is that the State would not have to justify such action as reasonable at all in a court of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under Article 19(1)(g) of theamendment of the constitution, which came later, cannot be involved to validate an earlier legislation which must be regarded as unconstitutional when it wasthink that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under Article 19(1)(g) of the Constitution and is not shown to be protected by the Clause (6) of the Article as it stood at the time of the enactment, must be held to be void under Article 13(2) of theview of that majority decision it must be taken to be settled now that Clause (1) and (2) of Article 31 are not mutually exclusive in scope but should be read together as dealing with the same subject, namely, the protection of the right to property by means of limitations on the States powers, the deprivation contemplated in Clause (1) being no other than acquisition or taking possession of the property referred to in Clausefact that the buses belonging to the appellants have not been acquired by the Government is also not material. The property of a business may be both tangible and intangible. Under the statute the Government may not deprive the appellants of their buses or any other tangible property but they are depriving them of the business of running buses on hire on public roads. We think therefore that in these circumstances the legislation does conflict with the provision of Article 31 (2) of the Constitution and as the requirements of that clause have not been complied with, it should be held to be invalid on thatis well settled that mere differentiation does not make a legislation obnoxious to the equal protection clause. The Legislature has always the power to make classification and all that is necessary is that the classification should not be arbitrary but must bear a reasonable relation to the object which the legislation has in view. There is no doubt that classification is inherent in the concept of a monopoly; and if the object of legislation is to create monopoly in favour of the State with regard to a particular business, obviously the State cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is concerned and this classification would have a perfectly rational relation to the object of the statute. No doubt if the creation of a monoply in favour of the State is itself bad on the ground of violating some constitutional provisions, the statute would be invalid for those reasons and the question of discrimination would not be material at all. In our opinion, the argument of Mr. Pathak that the State ceases to function as a State as soon as it engages itself in a trade like ordinary trader cannot be accepted as a sound proposition of law under the Constitution of India at the present3 of the Act authorises the State Government to declare that the road transport service in general or on particular routes should be run and operated by the State Government exclusively or by the State Government in conjunction with railway or partly by the State Government and partly by others in accordance with the provisions of the Act. The whole question is how is the last part of the section to be implemented and carried out ? If the State can choose any and every person it likes for the purpose of being associated with the transport service and there are no rules to guide its discretion, plainly the provision would offend against Article 14 of thedoes not appear to us to be an unreasonable construction to be put upon the relevant portion of Section 3 of the act and it receives support from what is laid down in Section 7(c) of the act. On this construction the discretion to be exercised by the State would be a regulated discretion guided by statuary rules. We hold therefore that the appellant cannot make any grievance on this score and that the statute does not offend against Article 14 of theagainst this it may be pointed out that the constitution itself has provided in Art.302 and 304 (b) how reasonable restrictions could be imposed upon freedom of trade and commerce and it would not be proper to hold that restrictions can be imposed aliunde these provisions in the Constitution. The question would also arise as to what interpretation should be put upon the expression "reasonable restrictions" and whether or not as would have to apply the same tests as we have applied in regard to Article 19(6) of the Constitution. One material thing to consider in this connection would be that although the constitution was amended in 1951 by insertion of an additional clause in Article 19(6) by which State monopoly in regard to trade or business was taken out of the purview of Article 19(1)(g) of the Constitution, yet no such addition was made in Article 301 or Article 304 of the Constitution and Article 301, as it stands, guarantees freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights. | 1 | 10,164 | 2,191 | ### Instruction:
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commerce and intercourse provided for by Article 301 of the Constitution? Article 301 runs as follows :"Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free."Article 302 authorises the Parliament to impose such restrictions on the freedom of trade, commerce and intercourse between one State and another or within any part of the territory of India as may be required in the public interests. Under Article 304 (b) it is competent even for the Legislature of a State to impose reasonable restrictions upon freedom of trade, commerce and intercourse mentioned above in the interest of the public, but it is necessary that any bill or amendment for this purpose should first receive the sanction of the President before it is moved or introduced in the Legislature of a State. Article 301 corresponds to Section 92 of the Australian Constitution and is even wider than the latter inasmuch as the Australian Constitution provides for the freedom of inter-State trade only.The High Court has negatived the contention of the appellants on this points primarily on the ground that Article 301 of the Constitution has no application to the present case. What is said is, that the Article 301 provides safeguards for carrying on trade as a whole as distinguished from the rights of an individual to carry it on. In other words, this article is concerned with the passage of commodities or persons either within or outside the State frontiers but not directly with individuals carrying on the commerce or trade. The right of individuals, it is said, is dealt with under Article 19(1)(g) of the Constitution and the two articles have been framed in order to secure two different objects.30. The question is not quite free from difficulty and in view of the fact that we have declared the Act to be unconstitutional on the two grounds mentioned above, we do not consider it necessary to record our decision on the point. We would only desire to indicate the contentions that have been or could be raised upon this point and the different views that are possible to be taken in respect to them so that the Legislature might take these matters into consideration if and when they think of legislating on this subject.31. We desire to point out that in regard to section 92 of the Australian Constitution, which so far as inter-State trade is concerned adopts almost the same language as Article 301 of our Constitution, it has been difinitely held by the Judicial Committee in the case of 1950 AC 235 (J) that the rights of individuals do come within the purview of the section. It is true, as Lord Porter observed, that section 92 does not create any new juristic rights but it does give the citizens of the State or the Common-Wealth, as the case may be, the right to ignore and, if necessary, to call on the judicial power to help him to resist legislative or executive actions which offend against the section. It follows from this as His Lordship pointed out, that the application of section 92 does not involve calculations as to the actual present or possible future effect upon the total value of inter-State trade, the difficulty in applying such a criterion being too obvious. If this view is adopted in regard to Article 301 of our Constitution it can plausibly be argued that the legislation in the present case is invalid as contravening the terms of the article. The question of reasonable restrictions could not also arise in this case, as the bill was not introduced with the previous sanction of the President as required by the proviso to the Section 304 (b). It is true that the consent of the President was taken subsequently but the proviso expressly insists on the sanction being taken previous to the introduction of the bill.32. It may be argued that freedom of trade does not, as Lord Portor observed in the ---Australian Bank case, (J) referred to above, mean unrestricted or unrestrained freedom and that regulation of trade is quite compatible with its freedom. As against this it may be pointed out that the constitution itself has provided in Art.302 and 304 (b) how reasonable restrictions could be imposed upon freedom of trade and commerce and it would not be proper to hold that restrictions can be imposed aliunde these provisions in the Constitution. The question would also arise as to what interpretation should be put upon the expression "reasonable restrictions" and whether or not as would have to apply the same tests as we have applied in regard to Article 19(6) of the Constitution. One material thing to consider in this connection would be that although the constitution was amended in 1951 by insertion of an additional clause in Article 19(6) by which State monopoly in regard to trade or business was taken out of the purview of Article 19(1)(g) of the Constitution, yet no such addition was made in Article 301 or Article 304 of the Constitution and Article 301, as it stands, guarantees freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights.33. The Australian Constitution indeed has no provision like Article 19(1)(g) of the Indian Constitution and it is certainly an arguable point as to whether the rights of individuals alone are dealt with in Article 19(1)(g) of the Constitution leaving the freedom of trade and commerce, meaning by that expression only the free passage of persons and goods, within or without a State to be dealt with under Article 301 and the following articles.34. We have thus indicated only the points that could be raised and the possible views that could be taken but as we have said already, we do not desire to express any final opinion on these points as it is unnecessary for purposes of the present case.
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that the State shall direct its policy towards securing "that the citizens, men and women equally, have the right to an adequate means of livelihood."The new clause in Article 19(6) has no doubt been introduced with a view to provide that a State can create a monopoly in its own favour in respect of any trade or business but the amendment does not make the establishment of such monopoly a reasonable restriction within the meaning of the first clause of Art. 19(6). The result of the amendment is that the State would not have to justify such action as reasonable at all in a court of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under Article 19(1)(g) of theamendment of the constitution, which came later, cannot be involved to validate an earlier legislation which must be regarded as unconstitutional when it wasthink that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under Article 19(1)(g) of the Constitution and is not shown to be protected by the Clause (6) of the Article as it stood at the time of the enactment, must be held to be void under Article 13(2) of theview of that majority decision it must be taken to be settled now that Clause (1) and (2) of Article 31 are not mutually exclusive in scope but should be read together as dealing with the same subject, namely, the protection of the right to property by means of limitations on the States powers, the deprivation contemplated in Clause (1) being no other than acquisition or taking possession of the property referred to in Clausefact that the buses belonging to the appellants have not been acquired by the Government is also not material. The property of a business may be both tangible and intangible. Under the statute the Government may not deprive the appellants of their buses or any other tangible property but they are depriving them of the business of running buses on hire on public roads. We think therefore that in these circumstances the legislation does conflict with the provision of Article 31 (2) of the Constitution and as the requirements of that clause have not been complied with, it should be held to be invalid on thatis well settled that mere differentiation does not make a legislation obnoxious to the equal protection clause. The Legislature has always the power to make classification and all that is necessary is that the classification should not be arbitrary but must bear a reasonable relation to the object which the legislation has in view. There is no doubt that classification is inherent in the concept of a monopoly; and if the object of legislation is to create monopoly in favour of the State with regard to a particular business, obviously the State cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is concerned and this classification would have a perfectly rational relation to the object of the statute. No doubt if the creation of a monoply in favour of the State is itself bad on the ground of violating some constitutional provisions, the statute would be invalid for those reasons and the question of discrimination would not be material at all. In our opinion, the argument of Mr. Pathak that the State ceases to function as a State as soon as it engages itself in a trade like ordinary trader cannot be accepted as a sound proposition of law under the Constitution of India at the present3 of the Act authorises the State Government to declare that the road transport service in general or on particular routes should be run and operated by the State Government exclusively or by the State Government in conjunction with railway or partly by the State Government and partly by others in accordance with the provisions of the Act. The whole question is how is the last part of the section to be implemented and carried out ? If the State can choose any and every person it likes for the purpose of being associated with the transport service and there are no rules to guide its discretion, plainly the provision would offend against Article 14 of thedoes not appear to us to be an unreasonable construction to be put upon the relevant portion of Section 3 of the act and it receives support from what is laid down in Section 7(c) of the act. On this construction the discretion to be exercised by the State would be a regulated discretion guided by statuary rules. We hold therefore that the appellant cannot make any grievance on this score and that the statute does not offend against Article 14 of theagainst this it may be pointed out that the constitution itself has provided in Art.302 and 304 (b) how reasonable restrictions could be imposed upon freedom of trade and commerce and it would not be proper to hold that restrictions can be imposed aliunde these provisions in the Constitution. The question would also arise as to what interpretation should be put upon the expression "reasonable restrictions" and whether or not as would have to apply the same tests as we have applied in regard to Article 19(6) of the Constitution. One material thing to consider in this connection would be that although the constitution was amended in 1951 by insertion of an additional clause in Article 19(6) by which State monopoly in regard to trade or business was taken out of the purview of Article 19(1)(g) of the Constitution, yet no such addition was made in Article 301 or Article 304 of the Constitution and Article 301, as it stands, guarantees freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights.
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Natinal Insurance Company Limited Vs. Bakul Rani Dutta and Anr | The petitioner is a nationalised insurance company. When a claim was made against them on the allegation that the vehicle involved in an accident had been insured with them the insurance company had chosen to contest the claim on many grounds except the ground that the vehicle was not insured with them. Till the award was passed by the Motor Accident Claims Tribunal the insurance company did not do even a wee bit to ascertain whether the particular vehicle was insured with them or not. Even after the award was passed they did not come to ..2/- :2: know whether the vehicle was insured with them or not for a very long time. After a long interval of 459 days elapsed the insurance company suddenly came to know that the vehicle was not insured with them. Then they preferred an appeal before the High Court. The application for condonation of delay was not granted by the High Court as per the impugned judgment. Learned Judges of the Division Bench of the High Court expressed surprise how a nationalised insurance company can be so negligent as what they have exhibited in this case. Even today the insurance company could not satisfy us whether they have evolved any machinery (with all the advancements in the computer engineering technology) for making an easy check up whether a particular vehicle is insured with them or not. We are aware that it is public money which the insurance company is called upon to pay as per the award. When a vehicle was not insured with them it is public money that goes out. But the inertia on the part of the officers of the insurance company is so woeful that no indulgence can be shown to the petitioner. It is open to the insurance company to take steps for realising the award amount from the officer/officers who are responsible for such gross negligence.For filing this Special Leave Petition also there is an inordinate delay of 329 days for which no satisfactory explanation has been offered. | 0[ds]Learned Judges of the Division Bench of the High Court expressed surprise how a nationalised insurance company can be so negligent as what they have exhibited in this case. Even today the insurance company could not satisfy us whether they have evolved any machinery (with all the advancements in the computer engineering technology) for making an easy check up whether a particular vehicle is insured with them or notWe are aware that it is public money which the insurance company is called upon to pay as per the award. When a vehicle was not insured with them it is public money that goes out. But the inertia on the part of the officers of the insurance company is so woeful that no indulgence can be shown to the petitionerIt is open to the insurance company to take steps for realising the award amount from the officer/officers who are responsible for such gross negligence.For filing this Special Leave Petition also there is an inordinate delay of 329 days for which no satisfactory explanation has been offered. | 0 | 357 | 185 | ### 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 petitioner is a nationalised insurance company. When a claim was made against them on the allegation that the vehicle involved in an accident had been insured with them the insurance company had chosen to contest the claim on many grounds except the ground that the vehicle was not insured with them. Till the award was passed by the Motor Accident Claims Tribunal the insurance company did not do even a wee bit to ascertain whether the particular vehicle was insured with them or not. Even after the award was passed they did not come to ..2/- :2: know whether the vehicle was insured with them or not for a very long time. After a long interval of 459 days elapsed the insurance company suddenly came to know that the vehicle was not insured with them. Then they preferred an appeal before the High Court. The application for condonation of delay was not granted by the High Court as per the impugned judgment. Learned Judges of the Division Bench of the High Court expressed surprise how a nationalised insurance company can be so negligent as what they have exhibited in this case. Even today the insurance company could not satisfy us whether they have evolved any machinery (with all the advancements in the computer engineering technology) for making an easy check up whether a particular vehicle is insured with them or not. We are aware that it is public money which the insurance company is called upon to pay as per the award. When a vehicle was not insured with them it is public money that goes out. But the inertia on the part of the officers of the insurance company is so woeful that no indulgence can be shown to the petitioner. It is open to the insurance company to take steps for realising the award amount from the officer/officers who are responsible for such gross negligence.For filing this Special Leave Petition also there is an inordinate delay of 329 days for which no satisfactory explanation has been offered.
### Response:
0
### Explanation:
Learned Judges of the Division Bench of the High Court expressed surprise how a nationalised insurance company can be so negligent as what they have exhibited in this case. Even today the insurance company could not satisfy us whether they have evolved any machinery (with all the advancements in the computer engineering technology) for making an easy check up whether a particular vehicle is insured with them or notWe are aware that it is public money which the insurance company is called upon to pay as per the award. When a vehicle was not insured with them it is public money that goes out. But the inertia on the part of the officers of the insurance company is so woeful that no indulgence can be shown to the petitionerIt is open to the insurance company to take steps for realising the award amount from the officer/officers who are responsible for such gross negligence.For filing this Special Leave Petition also there is an inordinate delay of 329 days for which no satisfactory explanation has been offered.
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Commissioner of Income Tax, West Bengal Ii Vs. Dinesh Chandra H. Shah & Others | was that the information on the record in respect of the share of profit assessable to tax had escaped the notice of the Income-tax Officer and therefore he was justified in taking action under Section 34 (1) (b). Two questions were referred for the opinion of the High Court but we are only concerned with the first question which is as follows:"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the action under Section 34 (1) (b) of the Income-tax Act, 1922 was legal and valid?"The High Court was of the opinion that there may be information existing on the record or brought to the notice which does not become informative at the first sight and requires further investigation or consideration. In such cases the realisation of the effect of the information subsequently may give to the Income-tax Officer the jurisdiction to start proceedings under Section 34 (1) (b) but the mere fact that the Income-tax Officer changes his opinion subsequently or the fact that he fails to notice a palpable or glaring matter earlier should not be treated as additional information coming to his notice subsequent to the assessment order. The question was, therefore, answered against the Revenue.3. It may be mentioned that the decisions relating to Sec. 34 (1) (b) are a legion and it may seem that divergent views have been expressed in some of the cases in the light of their peculiar facts. The Revenue has contended for the proposition which was accepted by the Madras High Court in Family of V. A. M. Sankaralinga Nadar .v Commissioner of Income-tax, Madras, (1963) 48 ITR 314 (Mad) that although a mere change of opinion regarding the chargeability of income on the part of the reassessing Officer different from his own previous opinion or that of his predecessor in Office might not justify action under Section 34 (1) (b) but Income which escapes assessment as a result of the lack of vigilance of the Income-tax Officer or due to inadvertence or negligence or due to perfunctory performance of his duties without due care and caution could well be within the ambit of Section 34 (1) (b) provided the requirements of that section are satisfied. In other words even if the assessee has placed the entire facts which would enable the Income-tax Officer to make a proper assessment of his income but he fails to do so for the various reasons stated earlier he can, as soon as he realizes his mistake, issue a notice under Section 34 (1) (b) after completing the assessment.4. We may refer at this stage to some of the decisions of this Court in which the principles applicable to the case of the present kind have been enunciated. In Kamal Singh v. Commr. of Income-tax, Bihar and Orissa, 35 ITR 1 = (AIR 1959 SC 257 ) it was laid down that two conditions must be satisfied before the Income-tax Officer could act under Section 34 (1) (b). He must have information in his possession which in the context meant that, that relevant information must have come into possession subsequent to the making of the assessment order in question and that information must lead to his belief that income chargeable to income-tax had escaped assessment for any year. According to the decision in Commr. of Income-tax, Gujarat v. A. Raman and Co., 67 ITR 11 = (AIR 1968 SC 49 ) jurisdiction of the Income-tax Officer to reassess income arises if he has, in consequence of information in his possession, reason to believe that income chargeable to tax has escaped assessment. That information must have come into possession after the previous assessment but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record or the facts disclosed thereby or from other inquiry or research into facts or law but was not in fact obtained, the jurisdiction of the Income-tax Officer was not affected.5. It is not disputed that the facts in the above case were altogether different from those of the present case. But on behalf of the Revenue assistance has been sought to support the contention that even if there has been an omission to include a particular item of income in an assessment by inadvertence it is open to the Income-tax Officer to invoke the provisions of Section 34 (1) (b) when he discovers subsequently that, that particular item of income has escaped assessment. In our judgment it is wholly unnecessary to go into the question whether an inadvertent omission can justify the reopening of the assessment on its subsequent discovery by the Income-tax Officer. No such position was adopted by the Income-tax Officer when he was called upon by the Appellate Assistant Commissioner to state the reason for not including the income of the Madras firm about the factum and existence of which full disclosure had been made in the return filed by the assessee and with regard to the income of which a note had been made on the file when the share allocation report was received from the Income-tax Officer, Madras on September 21, 1955. It appears that the Income-tax Officer clearly sought to justify the reopening of the assessment under Section 34 (1) (b) merely on the ground of change of opinion. It is well settled by now and Mr. Desai quite rightly does not dispute the proposition that mere change of opinion could not be a valid ground for reopening the assessment under Section 34 (1) (b) of the Act. We would accordingly uphold the answer returned by the High Court on the short ground that the reassessment for the year in question was sought to be reopened for the reason that the successor of the Income-tax Officer who had made the original assessment had changed his opinion which did not furnish a justifiable reason for taking action under Sec. 34 (1) (b). | 0[ds]5. It is not disputed that the facts in the above case were altogether different from those of the present case. But on behalf of the Revenue assistance has been sought to support the contention that even if there has been an omission to include a particular item of income in an assessment by inadvertence it is open to theOfficer to invoke the provisions of Section 34 (1) (b) when he discovers subsequently that, that particular item of income has escaped assessment. In our judgment it is wholly unnecessary to go into the question whether an inadvertent omission can justify the reopening of the assessment on its subsequent discovery by theOfficer. No such position was adopted by theOfficer when he was called upon by the Appellate Assistant Commissioner to state the reason for not including the income of the Madras firm about the factum and existence of which full disclosure had been made in the return filed by the assessee and with regard to the income of which a note had been made on the file when the share allocation report was received from theOfficer, Madras on September 21, 1955. It appears that theOfficer clearly sought to justify the reopening of the assessment under Section 34 (1) (b) merely on the ground of change of opinion. It is well settled by now and Mr. Desai quite rightly does not dispute the proposition that mere change of opinion could not be a valid ground for reopening the assessment under Section 34 (1) (b) of the Act. We would accordingly uphold the answer returned by the High Court on the short ground that the reassessment for the year in question was sought to be reopened for the reason that the successor of theOfficer who had made the original assessment had changed his opinion which did not furnish a justifiable reason for taking action under Sec. 34 (1) (b). | 0 | 1,651 | 348 | ### 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:
was that the information on the record in respect of the share of profit assessable to tax had escaped the notice of the Income-tax Officer and therefore he was justified in taking action under Section 34 (1) (b). Two questions were referred for the opinion of the High Court but we are only concerned with the first question which is as follows:"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the action under Section 34 (1) (b) of the Income-tax Act, 1922 was legal and valid?"The High Court was of the opinion that there may be information existing on the record or brought to the notice which does not become informative at the first sight and requires further investigation or consideration. In such cases the realisation of the effect of the information subsequently may give to the Income-tax Officer the jurisdiction to start proceedings under Section 34 (1) (b) but the mere fact that the Income-tax Officer changes his opinion subsequently or the fact that he fails to notice a palpable or glaring matter earlier should not be treated as additional information coming to his notice subsequent to the assessment order. The question was, therefore, answered against the Revenue.3. It may be mentioned that the decisions relating to Sec. 34 (1) (b) are a legion and it may seem that divergent views have been expressed in some of the cases in the light of their peculiar facts. The Revenue has contended for the proposition which was accepted by the Madras High Court in Family of V. A. M. Sankaralinga Nadar .v Commissioner of Income-tax, Madras, (1963) 48 ITR 314 (Mad) that although a mere change of opinion regarding the chargeability of income on the part of the reassessing Officer different from his own previous opinion or that of his predecessor in Office might not justify action under Section 34 (1) (b) but Income which escapes assessment as a result of the lack of vigilance of the Income-tax Officer or due to inadvertence or negligence or due to perfunctory performance of his duties without due care and caution could well be within the ambit of Section 34 (1) (b) provided the requirements of that section are satisfied. In other words even if the assessee has placed the entire facts which would enable the Income-tax Officer to make a proper assessment of his income but he fails to do so for the various reasons stated earlier he can, as soon as he realizes his mistake, issue a notice under Section 34 (1) (b) after completing the assessment.4. We may refer at this stage to some of the decisions of this Court in which the principles applicable to the case of the present kind have been enunciated. In Kamal Singh v. Commr. of Income-tax, Bihar and Orissa, 35 ITR 1 = (AIR 1959 SC 257 ) it was laid down that two conditions must be satisfied before the Income-tax Officer could act under Section 34 (1) (b). He must have information in his possession which in the context meant that, that relevant information must have come into possession subsequent to the making of the assessment order in question and that information must lead to his belief that income chargeable to income-tax had escaped assessment for any year. According to the decision in Commr. of Income-tax, Gujarat v. A. Raman and Co., 67 ITR 11 = (AIR 1968 SC 49 ) jurisdiction of the Income-tax Officer to reassess income arises if he has, in consequence of information in his possession, reason to believe that income chargeable to tax has escaped assessment. That information must have come into possession after the previous assessment but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record or the facts disclosed thereby or from other inquiry or research into facts or law but was not in fact obtained, the jurisdiction of the Income-tax Officer was not affected.5. It is not disputed that the facts in the above case were altogether different from those of the present case. But on behalf of the Revenue assistance has been sought to support the contention that even if there has been an omission to include a particular item of income in an assessment by inadvertence it is open to the Income-tax Officer to invoke the provisions of Section 34 (1) (b) when he discovers subsequently that, that particular item of income has escaped assessment. In our judgment it is wholly unnecessary to go into the question whether an inadvertent omission can justify the reopening of the assessment on its subsequent discovery by the Income-tax Officer. No such position was adopted by the Income-tax Officer when he was called upon by the Appellate Assistant Commissioner to state the reason for not including the income of the Madras firm about the factum and existence of which full disclosure had been made in the return filed by the assessee and with regard to the income of which a note had been made on the file when the share allocation report was received from the Income-tax Officer, Madras on September 21, 1955. It appears that the Income-tax Officer clearly sought to justify the reopening of the assessment under Section 34 (1) (b) merely on the ground of change of opinion. It is well settled by now and Mr. Desai quite rightly does not dispute the proposition that mere change of opinion could not be a valid ground for reopening the assessment under Section 34 (1) (b) of the Act. We would accordingly uphold the answer returned by the High Court on the short ground that the reassessment for the year in question was sought to be reopened for the reason that the successor of the Income-tax Officer who had made the original assessment had changed his opinion which did not furnish a justifiable reason for taking action under Sec. 34 (1) (b).
### Response:
0
### Explanation:
5. It is not disputed that the facts in the above case were altogether different from those of the present case. But on behalf of the Revenue assistance has been sought to support the contention that even if there has been an omission to include a particular item of income in an assessment by inadvertence it is open to theOfficer to invoke the provisions of Section 34 (1) (b) when he discovers subsequently that, that particular item of income has escaped assessment. In our judgment it is wholly unnecessary to go into the question whether an inadvertent omission can justify the reopening of the assessment on its subsequent discovery by theOfficer. No such position was adopted by theOfficer when he was called upon by the Appellate Assistant Commissioner to state the reason for not including the income of the Madras firm about the factum and existence of which full disclosure had been made in the return filed by the assessee and with regard to the income of which a note had been made on the file when the share allocation report was received from theOfficer, Madras on September 21, 1955. It appears that theOfficer clearly sought to justify the reopening of the assessment under Section 34 (1) (b) merely on the ground of change of opinion. It is well settled by now and Mr. Desai quite rightly does not dispute the proposition that mere change of opinion could not be a valid ground for reopening the assessment under Section 34 (1) (b) of the Act. We would accordingly uphold the answer returned by the High Court on the short ground that the reassessment for the year in question was sought to be reopened for the reason that the successor of theOfficer who had made the original assessment had changed his opinion which did not furnish a justifiable reason for taking action under Sec. 34 (1) (b).
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Employees State Insurance Corporation, Bhopal Vs. Central Press and Another | BEG, C.J. 1. This appeal by special leave arises out of the proceedings initiated on 12.7.1961 by the appellant Corporation, under section 75 of the Employees State Insurance Act 1948 (hereinafter referred to as the Act), claiming contribution from the respondents for various periods between. 27.9.1959 and 31.3.1965, which they are liable to pay under section 40 of the Act. 2. It appears that the respondents-employers failed to. maintain the registers or records and to submit returns of wages paid as required under section 44 of the Act. Hence, the Insurance Court, which was called upon to adjudicate under Section 75(1)(c) of the Act, on the matter in dispute, found itself under to decide, the question in issue. It dismissed the application on the "round that there was no provision for deciding such a dispute on an "ad hoc basis." We fail to understand what is precisely meant by "ad hoc bas is" Section 75(2) of the Act provides inter alia, that a claim for the respondent We find that recovery of contributions shall be decided by the Employees Insurance Court. Not only as the mandatory duty cast upon i t to decide such disputes, but it is armed with the powers of a Civil Court, including summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, under section 78 of the Act. 3. The powers of the Corporation are given in Section 45A of the Act, introduced by Act 44 of 1966, whereby the Corporation may, on the basis of the information available to it, determine the amount of contributions payable and make necessary demands. Apparently, the scheme of the Act, after the amendment, is that the Corporation itself should, in a case where there is omission on the part of the employer to maintain records in accordance with Section 44 of the Act, determine the amount of contributions on the strength of such information as it may collect. It can then make, the demand. If the employer re fuses to comply with the demand so made, the matter can come up before the Employees Insurance Court under Section 75 of the Act. The Court should give the Corporation a direction to perform its duty where it considers that this should be performed by the Corporation. It cannot decline to perform its own duty because the Corporation has failed to discharge its functions.The matter having Come up before that Court, the claim by the Corporation was rejected erroneously merely on the ground that there was difficulty in determining the basis of wages in a particular factory so as to enable a calculation of the amount of contributions to be made by the employer. It seems that the notification of the Central Government under section 99A of the Act, also, introduced by Act 44 of 1966, was intended to overcome such a difficulty in determining the wage s of the employees. After having considered the provisions of section 99A of the Act, we doubt whether this provision can be availed of for the purpose of supplying a defect or overcoming a difficulty in adjudication of a dispute. for which the Employees Insurance Court is given ample powers. Moreover, the Corporation has itself to collect the information initially and make a provisional demand on the basis of that information under section 45A in such a case. 4. The learned single Judge, before whom the matter went up in appeal, thought that the notification of the Central Government fixing wages, presumably on the strength of some notion as to what prevailing wages in such cases are, could be. used for this purpose. The Corporation itself should have gathered information under section 45A. The Employees Insurance Court should be apprised of this information. and is under a duty to determine the basis of calculation itself. It cannot expect the Central Government to overcome such a difficulty by an order or direction under section 99A of the Act. We think that the nature of the proceedings was not properly understood either by the Employees Insurance Court or by the High Court when the matter was taken before these authorities. | 1[ds]We fail to understand what is precisely meant by "ad hoc bas is" Section 75(2) of the Act provides inter alia, that a claim for the respondent We find that recovery of contributions shall be decided by the Employees Insurance Court. Not only as the mandatory duty cast upon i t to decide such disputes, but it is armed with the powers of a Civil Court, including summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, under section 78 of the ActThe powers of the Corporation are given in Section 45A of the Act, introduced by Act 44 of 1966, whereby the Corporation may, on the basis of the information available to it, determine the amount of contributions payable and make necessary demands. Apparently, the scheme of the Act, after the amendment, is that the Corporation itself should, in a case where there is omission on the part of the employer to maintain records in accordance with Section 44 of the Act, determine the amount of contributions on the strength of such information as it may collect. It can then make, the demand. If the employer re fuses to comply with the demand so made, the matter can come up before the Employees Insurance Court under Section 75 of the Act. The Court should give the Corporation a direction to perform its duty where it considers that this should be performed by the Corporation. It cannot decline to perform its own duty because the Corporation has failed to discharge its functions.The matter having Come up before that Court, the claim by the Corporation was rejected erroneously merely on the ground that there was difficulty in determining the basis of wages in a particular factory so as to enable a calculation of the amount of contributions to be made by the employer. It seems that the notification of the Central Government under section 99A of the Act, also, introduced by Act 44 of 1966, was intended to overcome such a difficulty in determining the wage s of the employees. After having considered the provisions of section 99A of the Act, we doubt whether this provision can be availed of for the purpose of supplying a defect or overcoming a difficulty in adjudication of a dispute. for which the Employees Insurance Court is given ample powers. Moreover, the Corporation has itself to collect the information initially and make a provisional demand on the basis of that information under section 45A in such a caseThe learned single Judge, before whom the matter went up in appeal, thought that the notification of the Central Government fixing wages, presumably on the strength of some notion as to what prevailing wages in such cases are, could be. used for this purpose. The Corporation itself should have gathered information under section 45A. The Employees Insurance Court should be apprised of this information. and is under a duty to determine the basis of calculation itself. It cannot expect the Central Government to overcome such a difficulty by an order or direction under section 99A of the Act. We think that the nature of the proceedings was not properly understood either by the Employees Insurance Court or by the High Court when the matter was taken before these authorities. | 1 | 775 | 602 | ### 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:
BEG, C.J. 1. This appeal by special leave arises out of the proceedings initiated on 12.7.1961 by the appellant Corporation, under section 75 of the Employees State Insurance Act 1948 (hereinafter referred to as the Act), claiming contribution from the respondents for various periods between. 27.9.1959 and 31.3.1965, which they are liable to pay under section 40 of the Act. 2. It appears that the respondents-employers failed to. maintain the registers or records and to submit returns of wages paid as required under section 44 of the Act. Hence, the Insurance Court, which was called upon to adjudicate under Section 75(1)(c) of the Act, on the matter in dispute, found itself under to decide, the question in issue. It dismissed the application on the "round that there was no provision for deciding such a dispute on an "ad hoc basis." We fail to understand what is precisely meant by "ad hoc bas is" Section 75(2) of the Act provides inter alia, that a claim for the respondent We find that recovery of contributions shall be decided by the Employees Insurance Court. Not only as the mandatory duty cast upon i t to decide such disputes, but it is armed with the powers of a Civil Court, including summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, under section 78 of the Act. 3. The powers of the Corporation are given in Section 45A of the Act, introduced by Act 44 of 1966, whereby the Corporation may, on the basis of the information available to it, determine the amount of contributions payable and make necessary demands. Apparently, the scheme of the Act, after the amendment, is that the Corporation itself should, in a case where there is omission on the part of the employer to maintain records in accordance with Section 44 of the Act, determine the amount of contributions on the strength of such information as it may collect. It can then make, the demand. If the employer re fuses to comply with the demand so made, the matter can come up before the Employees Insurance Court under Section 75 of the Act. The Court should give the Corporation a direction to perform its duty where it considers that this should be performed by the Corporation. It cannot decline to perform its own duty because the Corporation has failed to discharge its functions.The matter having Come up before that Court, the claim by the Corporation was rejected erroneously merely on the ground that there was difficulty in determining the basis of wages in a particular factory so as to enable a calculation of the amount of contributions to be made by the employer. It seems that the notification of the Central Government under section 99A of the Act, also, introduced by Act 44 of 1966, was intended to overcome such a difficulty in determining the wage s of the employees. After having considered the provisions of section 99A of the Act, we doubt whether this provision can be availed of for the purpose of supplying a defect or overcoming a difficulty in adjudication of a dispute. for which the Employees Insurance Court is given ample powers. Moreover, the Corporation has itself to collect the information initially and make a provisional demand on the basis of that information under section 45A in such a case. 4. The learned single Judge, before whom the matter went up in appeal, thought that the notification of the Central Government fixing wages, presumably on the strength of some notion as to what prevailing wages in such cases are, could be. used for this purpose. The Corporation itself should have gathered information under section 45A. The Employees Insurance Court should be apprised of this information. and is under a duty to determine the basis of calculation itself. It cannot expect the Central Government to overcome such a difficulty by an order or direction under section 99A of the Act. We think that the nature of the proceedings was not properly understood either by the Employees Insurance Court or by the High Court when the matter was taken before these authorities.
### Response:
1
### Explanation:
We fail to understand what is precisely meant by "ad hoc bas is" Section 75(2) of the Act provides inter alia, that a claim for the respondent We find that recovery of contributions shall be decided by the Employees Insurance Court. Not only as the mandatory duty cast upon i t to decide such disputes, but it is armed with the powers of a Civil Court, including summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, under section 78 of the ActThe powers of the Corporation are given in Section 45A of the Act, introduced by Act 44 of 1966, whereby the Corporation may, on the basis of the information available to it, determine the amount of contributions payable and make necessary demands. Apparently, the scheme of the Act, after the amendment, is that the Corporation itself should, in a case where there is omission on the part of the employer to maintain records in accordance with Section 44 of the Act, determine the amount of contributions on the strength of such information as it may collect. It can then make, the demand. If the employer re fuses to comply with the demand so made, the matter can come up before the Employees Insurance Court under Section 75 of the Act. The Court should give the Corporation a direction to perform its duty where it considers that this should be performed by the Corporation. It cannot decline to perform its own duty because the Corporation has failed to discharge its functions.The matter having Come up before that Court, the claim by the Corporation was rejected erroneously merely on the ground that there was difficulty in determining the basis of wages in a particular factory so as to enable a calculation of the amount of contributions to be made by the employer. It seems that the notification of the Central Government under section 99A of the Act, also, introduced by Act 44 of 1966, was intended to overcome such a difficulty in determining the wage s of the employees. After having considered the provisions of section 99A of the Act, we doubt whether this provision can be availed of for the purpose of supplying a defect or overcoming a difficulty in adjudication of a dispute. for which the Employees Insurance Court is given ample powers. Moreover, the Corporation has itself to collect the information initially and make a provisional demand on the basis of that information under section 45A in such a caseThe learned single Judge, before whom the matter went up in appeal, thought that the notification of the Central Government fixing wages, presumably on the strength of some notion as to what prevailing wages in such cases are, could be. used for this purpose. The Corporation itself should have gathered information under section 45A. The Employees Insurance Court should be apprised of this information. and is under a duty to determine the basis of calculation itself. It cannot expect the Central Government to overcome such a difficulty by an order or direction under section 99A of the Act. We think that the nature of the proceedings was not properly understood either by the Employees Insurance Court or by the High Court when the matter was taken before these authorities.
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National Insurance Co. Ltd Vs. Anjana Shyam | terms of the permit and against the terms of the condition of registration of the vehicle and in terms of violation of a statute. 14. It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the insurance company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the passengers to be carried in the vehicle can be understood only as passengers authorized or permitted to be carried in the vehicle. 15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading. 16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately. 17. In these cases, we find that this Court has not issued notices to the claimants. We are therefore not in a position to vary the decision of the High Court as regards the claimants. But, we have clarified the law on the question and we grant the insurance company a decree to recover the excess amount that it has deposited, from the owner, who has been issued notice and who has contested these appeals. Obviously, the principle indicated by us here will have to be applied by the Tribunal in the case from which the appeal against the interim award has been filed by the insurance company. | 1[ds]13. In this situation, the insurance taken out for the number of permitted passengers can alone determine the liability of the insurance company in respect of those passengers. In terms of Section 149 of the Act, the duty of the insurer is only to satisfy judgments and awards against persons insured in respect of the third party risk. Obviously, this is to the extent the third party risk is coverable and is covered. Section 149 of the Act speaks of judgment or award being obtained against any person insured by the policy and the liability of the insurer to pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder subject to any claim the insurer may have against the owner of the vehicle. Section 149 could not be understood as compelling an insurance company to make payment of amounts covered by decrees not only in respect of the number of persons covered by the policy itself but even in respect of those who are not covered by the policy and who have been loaded into the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and in terms of violation of a statute14. It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the insurance company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the passengers to be carried in the vehicle can be understood only as passengers authorized or permitted to be carried in the vehicle15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately17. In these cases, we find that this Court has not issued notices to the claimants. We are therefore not in a position to vary the decision of the High Court as regards the claimants. But, we have clarified the law on the question and we grant the insurance company a decree to recover the excess amount that it has deposited, from the owner, who has been issued notice and who has contested these appeals. Obviously, the principle indicated by us here will have to be applied by the Tribunal in the case from which the appeal against the interim award has been filed by the insurance company | 1 | 3,934 | 1,266 | ### 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:
terms of the permit and against the terms of the condition of registration of the vehicle and in terms of violation of a statute. 14. It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the insurance company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the passengers to be carried in the vehicle can be understood only as passengers authorized or permitted to be carried in the vehicle. 15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading. 16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately. 17. In these cases, we find that this Court has not issued notices to the claimants. We are therefore not in a position to vary the decision of the High Court as regards the claimants. But, we have clarified the law on the question and we grant the insurance company a decree to recover the excess amount that it has deposited, from the owner, who has been issued notice and who has contested these appeals. Obviously, the principle indicated by us here will have to be applied by the Tribunal in the case from which the appeal against the interim award has been filed by the insurance company.
### Response:
1
### Explanation:
the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and in terms of violation of a statute14. It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the insurance company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the passengers to be carried in the vehicle can be understood only as passengers authorized or permitted to be carried in the vehicle15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading16. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately17. In these cases, we find that this Court has not issued notices to the claimants. We are therefore not in a position to vary the decision of the High Court as regards the claimants. But, we have clarified the law on the question and we grant the insurance company a decree to recover the excess amount that it has deposited, from the owner, who has been issued notice and who has contested these appeals. Obviously, the principle indicated by us here will have to be applied by the Tribunal in the case from which the appeal against the interim award has been filed by the insurance company
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Kamta Prasad Upadhyaya Vs. Sarjoo Prasad Tiwari & Others | rules or orders made under the Act or rules relating to the election, or by any mistake in the use of any prescribed form. No distinction was made between the consequence arising out of improper acceptance and out of improper rejection of any nomination, provided the result .of the election was materially afftcted thereby. Under Section 100 as amended, the election is not to be set aside in its entirety; only the election of the returned candidate has to be declared void. If any nomination has been improperly rejected, irrespective of the question whether the election has been materially affected thereby, - the election of the returned candidate must be set aside. Where, however, there has been improper acceptance of any nomination the election of the returned candidate shall be declared void if the result of the election was materially affected by such improper acceptance. It is further provided that for non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act the election of the returned candidate shall be declared void if the result of the election in so far as it concerns the returned candidate had been materially affected thereby. If the result of the election had been materially affected by the improper acceptance of any nomination under the Act before amendment, the election was wholly void. Under the amended Act the election of the returned candidate is to be declared void. That is the only change made in declaring the consequences arising from improper acceptance of nomination. The onus of proof before the Amending Act lay upon the election petitioner to establish in case of improper acceptance of any nomination, that the result of the election had been materially affected thereby; even under the Act as amended, the burden remains upon the election petitioner. We are unable to hold that the re-arrangement of the provisions relating to setting aside of the election by the Amending Act of 1956, in cases where there has been improper acceptance of nomination any substantial modification in the law declared by this Court in Vashist Narain Sharmas case (supra) was intended. Whether in a given case the onus is discharged must depend upon facts of that case. We may observe that in a recent case decided by this Court Poakai Haokip v. Rishang and Others (CA 623 of 1968, decided on Aug. 12, 1968) this Court has affirmed the view expressed in Vashist Narain Sharmas case (supra).6. Counsel then contended that in this case there was evidence to show that if Heeralal Bahadurs nomination had not been accepted, the appellant would have been declared elected, because all the votes which were cast in favour of Heeralal Bahadur who was a Kachhi would have been cast in favour of the appellant. But the following observations in Vashist Narain Sharmas case (supra) at p. 516 clearly negative that plea :"The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand."It may be accepted that in the constituency there were 6, 000 Kachhi voters. But there is nothing to show that all Kachhi voters did vote at the election or that only Heeralal Bahadur obtained the votes of Kachhi or that if Heeralal Bahadur had not stood for the election, all those voters would have voted for the appellant.7. It was said that the Kachhi voters would have voted for the appellant who stood as a candidate of the Congress party, but for the fact that a member of their own community-Heeralal Bahadur - was standing as a candidate, and in a caste meeting held on February 5, 1967, at the village Amaha it was resolved that all the Kachhi numbering about 6, 000 should vote for Heeralal. We have read the evidence of the witnesses Dine Kachhi, P.W. 4 Mukundi Kachhi P.W. 5, Garibe Kachhi P.W. 7, Hiralal Kachhi P.W. 8, Gangadhar Kachhi P.W. 12, and Kamta Prasad P.W. 14 and we hold that there is no reliable evidence which supports the case that if the nomination of Heeralal Bahadur had not been accepted, 6, 000 voters belonging to the Kachhi community or a majority of those voters would have voted for the appellant. How the members of the community reacted to the resolution and how far they regarded the resolution as binding upon them is a matter of speculation, and it would be impossible to predicate that the votes cast in favour of Heeralal Bahadur or a majority of those votes would have gone to the appellant and to no other candidate. How voters at an election will vote in a given situation cannot be determined with any degree of certainty. It is, therefore impossible to accept the assertion made by the candidate and his supporters that on some supposed or imaginary ground of affinity-political or communal-all or some of the votes would have gone to him, but for the irregularity committed by the Returning Officer in accepting the nomination of Heeralal. We agree with the High Court that the evidence on the record on the point that the "wasted votes" would have been distributed in such a manner that it would have brought about the defeat of the returned candidate is scanty and unreliable, and even that scanty evidence is only of a speculative or conjectural nature. | 0[ds]7. It was said that the Kachhi voters would have voted for the appellant who stood as a candidate of the Congress party, but for the fact that a member of their own community-Heeralal Bahadur - was standing as a candidate, and in a caste meeting held on February 5, 1967, at the village Amaha it was resolved that all the Kachhi numbering about 6, 000 should vote for Heeralal. We have read the evidence of the witnesses Dine Kachhi, P.W. 4 Mukundi Kachhi P.W. 5, Garibe Kachhi P.W. 7, Hiralal Kachhi P.W. 8, Gangadhar Kachhi P.W. 12, and Kamta Prasad P.W. 14 and we hold that there is no reliable evidence which supports the case that if the nomination of Heeralal Bahadur had not been accepted, 6, 000 voters belonging to the Kachhi community or a majority of those voters would have voted for the appellant. How the members of the community reacted to the resolution and how far they regarded the resolution as binding upon them is a matter of speculation, and it would be impossible to predicate that the votes cast in favour of Heeralal Bahadur or a majority of those votes would have gone to the appellant and to no other candidate. How voters at an election will vote in a given situation cannot be determined with any degree of certainty. It is, therefore impossible to accept the assertion made by the candidate and his supporters that on some supposed or imaginary ground of affinity-political or communal-all or some of the votes would have gone to him, but for the irregularity committed by the Returning Officer in accepting the nomination of Heeralal. We agree with the High Court that the evidence on the record on the point that the "wasted votes" would have been distributed in such a manner that it would have brought about the defeat of the returned candidate is scanty and unreliable, and even that scanty evidence is only of a speculative or conjectural nature.the following observations in Vashist Narain Sharmas case (supra) at p. 516 clearly negative that pleacasting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to | 0 | 3,067 | 517 | ### 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:
rules or orders made under the Act or rules relating to the election, or by any mistake in the use of any prescribed form. No distinction was made between the consequence arising out of improper acceptance and out of improper rejection of any nomination, provided the result .of the election was materially afftcted thereby. Under Section 100 as amended, the election is not to be set aside in its entirety; only the election of the returned candidate has to be declared void. If any nomination has been improperly rejected, irrespective of the question whether the election has been materially affected thereby, - the election of the returned candidate must be set aside. Where, however, there has been improper acceptance of any nomination the election of the returned candidate shall be declared void if the result of the election was materially affected by such improper acceptance. It is further provided that for non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act the election of the returned candidate shall be declared void if the result of the election in so far as it concerns the returned candidate had been materially affected thereby. If the result of the election had been materially affected by the improper acceptance of any nomination under the Act before amendment, the election was wholly void. Under the amended Act the election of the returned candidate is to be declared void. That is the only change made in declaring the consequences arising from improper acceptance of nomination. The onus of proof before the Amending Act lay upon the election petitioner to establish in case of improper acceptance of any nomination, that the result of the election had been materially affected thereby; even under the Act as amended, the burden remains upon the election petitioner. We are unable to hold that the re-arrangement of the provisions relating to setting aside of the election by the Amending Act of 1956, in cases where there has been improper acceptance of nomination any substantial modification in the law declared by this Court in Vashist Narain Sharmas case (supra) was intended. Whether in a given case the onus is discharged must depend upon facts of that case. We may observe that in a recent case decided by this Court Poakai Haokip v. Rishang and Others (CA 623 of 1968, decided on Aug. 12, 1968) this Court has affirmed the view expressed in Vashist Narain Sharmas case (supra).6. Counsel then contended that in this case there was evidence to show that if Heeralal Bahadurs nomination had not been accepted, the appellant would have been declared elected, because all the votes which were cast in favour of Heeralal Bahadur who was a Kachhi would have been cast in favour of the appellant. But the following observations in Vashist Narain Sharmas case (supra) at p. 516 clearly negative that plea :"The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand."It may be accepted that in the constituency there were 6, 000 Kachhi voters. But there is nothing to show that all Kachhi voters did vote at the election or that only Heeralal Bahadur obtained the votes of Kachhi or that if Heeralal Bahadur had not stood for the election, all those voters would have voted for the appellant.7. It was said that the Kachhi voters would have voted for the appellant who stood as a candidate of the Congress party, but for the fact that a member of their own community-Heeralal Bahadur - was standing as a candidate, and in a caste meeting held on February 5, 1967, at the village Amaha it was resolved that all the Kachhi numbering about 6, 000 should vote for Heeralal. We have read the evidence of the witnesses Dine Kachhi, P.W. 4 Mukundi Kachhi P.W. 5, Garibe Kachhi P.W. 7, Hiralal Kachhi P.W. 8, Gangadhar Kachhi P.W. 12, and Kamta Prasad P.W. 14 and we hold that there is no reliable evidence which supports the case that if the nomination of Heeralal Bahadur had not been accepted, 6, 000 voters belonging to the Kachhi community or a majority of those voters would have voted for the appellant. How the members of the community reacted to the resolution and how far they regarded the resolution as binding upon them is a matter of speculation, and it would be impossible to predicate that the votes cast in favour of Heeralal Bahadur or a majority of those votes would have gone to the appellant and to no other candidate. How voters at an election will vote in a given situation cannot be determined with any degree of certainty. It is, therefore impossible to accept the assertion made by the candidate and his supporters that on some supposed or imaginary ground of affinity-political or communal-all or some of the votes would have gone to him, but for the irregularity committed by the Returning Officer in accepting the nomination of Heeralal. We agree with the High Court that the evidence on the record on the point that the "wasted votes" would have been distributed in such a manner that it would have brought about the defeat of the returned candidate is scanty and unreliable, and even that scanty evidence is only of a speculative or conjectural nature.
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7. It was said that the Kachhi voters would have voted for the appellant who stood as a candidate of the Congress party, but for the fact that a member of their own community-Heeralal Bahadur - was standing as a candidate, and in a caste meeting held on February 5, 1967, at the village Amaha it was resolved that all the Kachhi numbering about 6, 000 should vote for Heeralal. We have read the evidence of the witnesses Dine Kachhi, P.W. 4 Mukundi Kachhi P.W. 5, Garibe Kachhi P.W. 7, Hiralal Kachhi P.W. 8, Gangadhar Kachhi P.W. 12, and Kamta Prasad P.W. 14 and we hold that there is no reliable evidence which supports the case that if the nomination of Heeralal Bahadur had not been accepted, 6, 000 voters belonging to the Kachhi community or a majority of those voters would have voted for the appellant. How the members of the community reacted to the resolution and how far they regarded the resolution as binding upon them is a matter of speculation, and it would be impossible to predicate that the votes cast in favour of Heeralal Bahadur or a majority of those votes would have gone to the appellant and to no other candidate. How voters at an election will vote in a given situation cannot be determined with any degree of certainty. It is, therefore impossible to accept the assertion made by the candidate and his supporters that on some supposed or imaginary ground of affinity-political or communal-all or some of the votes would have gone to him, but for the irregularity committed by the Returning Officer in accepting the nomination of Heeralal. We agree with the High Court that the evidence on the record on the point that the "wasted votes" would have been distributed in such a manner that it would have brought about the defeat of the returned candidate is scanty and unreliable, and even that scanty evidence is only of a speculative or conjectural nature.the following observations in Vashist Narain Sharmas case (supra) at p. 516 clearly negative that pleacasting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to
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Firm And Illuri Subbayya Chetty And Sons Vs. The State Of Andhra Pradesh | for the purpose of the Act and then institutes a suit to set it aside or to modify it.12. The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions. We may in this connection refer to two decisions of the Privy Council. In Secy. of State v. Mask and Co., 67 Ind App 222 at p. 236: (AIR 1940 PC 105 at p. 110) the Privy Council was dealing with the effect of the provisions contained in S. 188 of the Sea Customs Act (VIII of 1878). The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power of revision conferred by S. 191, be final. Dealing with the question about the effect of this provision the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that "it is also well-settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with. Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles or judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject-matter of a suit because S. 18-A clearly bars such a claim in the civil Courts.13. The next decision to which reference may be made was pronounced by Privy Council in the case of Raleigh Investment Co. Ltd. v. Governor-General in Council, Ind App 50 at p.63 : (AIR 1947 PC 78 at p. 81). In this case the effect of S. 67 of the Indian Income-tax Act fell to be considered. The said section, inter alia, provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act. It would be noticed that the words used in this section are exactly similar to the words used in S. 18-A with which we are concerned. In determining the effect of S. 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income-tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery observed the judgment, though by no means conclusive, matches with a construction of the section which denies an alternative jurisdiction to enquire into the same subject-matter. It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income-tax Act ; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under S. 66 (1) of the Act. It is mot necessary for us to consider whether this assumption is well founded or not. But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal.14. The clause "assessment made under this Act" which occurs in S. 18-A also occurs in S. 67 with which the Privy Council was concerned, and in construing the said clause, the Privy Council observed that the phrase "made under this Act" describes the provenance of the assessment: it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test." These two Privy Councils decisions support the conclusion that having regard to the scheme of the Act, S. 18-A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present. | 0[ds]In dealing with the question whether Civil Courts jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said18-A provides that no suit or other proceeding shall, except as expressly provided in this Act, be instituted in any Court to set aside or modify any assessment made under this Act. It is common ground that there is no express provision made in the Act under which the present suit can be said to have been filed, and so, it falls under the prohibition contained in this section. The prohibition is express and unambiguous and there can be no doubt on a fair construction of the section that a suit cannot be entertained by a civil court if, by instituting the suit, the plaintiff wants to set aside or modify any assessment made under this Act. There is, therefore, no difficulty in holding that this section excludes the jurisdiction of the civil courts in respect of the suits covered by it.It would, however, be noticed that having regard to the subject-matter of the provisions contained in Ss. 17 (1) and 18 it was obviously necessary to refer not only to acts done, but also to acts purporting to be done under this Act. Section 17(1) is intended to bar certain proceedings and S. 18 is intended to afford an indemnity and that is the reason why the legislature had to adopt the usual formula by referring to acts done or purporting to be done. It was wholly unnecessary to refer to cases of assessment purporting to have been made under this Act while enacting S. 18-A, because all assessments made under this Act would attract the provisions of S. 18-A and that is all that the legislature intends S. 18-A to cover.9. The expression "any assessment made under this Act" is, in our opinion, wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments are correct or not. It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment that clearly falls within the scope of S. 18-A. The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law, the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act. Whether or not an assessment has been made under this Act will not depend on the correctness or the accuracy of the order passed by the assessing authority. In determining the applicability of S. 18-A, the only question to consider is: "Is the assessment sought to be set aside or modified by the suit instituted an assessment made under this Act or not?" It would be extremely anomalous to hold that it is only an accurate and correct order of assessment which falls under S. 18-A Therefore, it seems to us that the orders of assessment challenged by the appellant in its suit fall under S. 18-A.10. In this connection, it is necessary to emphasise that while providing for a bar to suits in ordinary civil courts in respect of maters covered by S. 18-A, the legislature has taken the precaution of safeguarding the citizens rights by providing for adequate alternative remedies. Section 11 of the Act provides for appeals to such authority as may be prescribed; S. 12 confers revisional jurisdiction on the authorities specified by it; S. 12-A allows an appeal to the appellate Tribunal; S. 12-B provides for a revision by the High Court under the cases specified in it; S. 12-C provides for an appeal to the High Court ; and S. 12-D lays down that petitions, applications and appeals to High Court should be heard by a Bench of not less than two Judges. The matter can even be brought to this Court by way of a petition under Art. 136 of the Constitution. It would thus be seen that any dealer who is aggrieved by an order of assessment passed in respect of his transactions, can avail himself of the remedies provided in that behalf by these sections of the Act. It is in the light of these elaborate alternative remedies provided by the Act that the scope and effect of S. 18-A must be judged. Thus considered, there can be no doubt that where an order of assessment has been made by an appropriate authority under the provisions of this Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or the revisional forum prescribed by the relevant provisions of the Act. A suit instituted for that purpose would be barred under S. 18-A.The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions. We may in this connection refer to two decisions of the Privy Council. In Secy. of State v. Mask and Co., 67 Ind App 222 at p. 236: (AIR 1940 PC 105 at p. 110) the Privy Council was dealing with the effect of the provisions contained in S. 188 of the Sea Customs Act (VIII of 1878). The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power of revision conferred by S. 191, be final. Dealing with the question about the effect of this provision the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that "it is also well-settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with. Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles or judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject-matter of a suit because S. 18-A clearly bars such a claim in the civil Courts.It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income-tax Act ; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under S. 66 (1) of the Act. It is mot necessary for us to consider whether this assumption is well founded or not. But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal.14. The clause "assessment made under this Act" which occurs in S. 18-A also occurs in S. 67 with which the Privy Council was concerned, and in construing the said clause, the Privy Council observed that the phrase "made under this Act" describes the provenance of the assessment: it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test." These two Privy Councils decisions support the conclusion that having regard to the scheme of the Act, S. 18-A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present. | 0 | 3,605 | 1,865 | ### Instruction:
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for the purpose of the Act and then institutes a suit to set it aside or to modify it.12. The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions. We may in this connection refer to two decisions of the Privy Council. In Secy. of State v. Mask and Co., 67 Ind App 222 at p. 236: (AIR 1940 PC 105 at p. 110) the Privy Council was dealing with the effect of the provisions contained in S. 188 of the Sea Customs Act (VIII of 1878). The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power of revision conferred by S. 191, be final. Dealing with the question about the effect of this provision the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that "it is also well-settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with. Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles or judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject-matter of a suit because S. 18-A clearly bars such a claim in the civil Courts.13. The next decision to which reference may be made was pronounced by Privy Council in the case of Raleigh Investment Co. Ltd. v. Governor-General in Council, Ind App 50 at p.63 : (AIR 1947 PC 78 at p. 81). In this case the effect of S. 67 of the Indian Income-tax Act fell to be considered. The said section, inter alia, provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act. It would be noticed that the words used in this section are exactly similar to the words used in S. 18-A with which we are concerned. In determining the effect of S. 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income-tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery observed the judgment, though by no means conclusive, matches with a construction of the section which denies an alternative jurisdiction to enquire into the same subject-matter. It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income-tax Act ; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under S. 66 (1) of the Act. It is mot necessary for us to consider whether this assumption is well founded or not. But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal.14. The clause "assessment made under this Act" which occurs in S. 18-A also occurs in S. 67 with which the Privy Council was concerned, and in construing the said clause, the Privy Council observed that the phrase "made under this Act" describes the provenance of the assessment: it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test." These two Privy Councils decisions support the conclusion that having regard to the scheme of the Act, S. 18-A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present.
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12-A allows an appeal to the appellate Tribunal; S. 12-B provides for a revision by the High Court under the cases specified in it; S. 12-C provides for an appeal to the High Court ; and S. 12-D lays down that petitions, applications and appeals to High Court should be heard by a Bench of not less than two Judges. The matter can even be brought to this Court by way of a petition under Art. 136 of the Constitution. It would thus be seen that any dealer who is aggrieved by an order of assessment passed in respect of his transactions, can avail himself of the remedies provided in that behalf by these sections of the Act. It is in the light of these elaborate alternative remedies provided by the Act that the scope and effect of S. 18-A must be judged. Thus considered, there can be no doubt that where an order of assessment has been made by an appropriate authority under the provisions of this Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or the revisional forum prescribed by the relevant provisions of the Act. A suit instituted for that purpose would be barred under S. 18-A.The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions. We may in this connection refer to two decisions of the Privy Council. In Secy. of State v. Mask and Co., 67 Ind App 222 at p. 236: (AIR 1940 PC 105 at p. 110) the Privy Council was dealing with the effect of the provisions contained in S. 188 of the Sea Customs Act (VIII of 1878). The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power of revision conferred by S. 191, be final. Dealing with the question about the effect of this provision the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that "it is also well-settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with. Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles or judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject-matter of a suit because S. 18-A clearly bars such a claim in the civil Courts.It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income-tax Act ; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under S. 66 (1) of the Act. It is mot necessary for us to consider whether this assumption is well founded or not. But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal.14. The clause "assessment made under this Act" which occurs in S. 18-A also occurs in S. 67 with which the Privy Council was concerned, and in construing the said clause, the Privy Council observed that the phrase "made under this Act" describes the provenance of the assessment: it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test." These two Privy Councils decisions support the conclusion that having regard to the scheme of the Act, S. 18-A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present.
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Patneedi Rudrayya Vs. Velugubantla Venkayya & Others | common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court has relied deal with the rights of riparian owners and are thus not strictly appropriate.13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usual occurrence. Where a right is based upon the illustration (i) to S. 7 of the Indian Easements Act, 1882 (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and Forbes on Waters and Land Drainage, 6th Ed., p. 191 and a passage from the judgment in Nield v. London and North Western Railway, (1874) 10 Ex 4 in support of its conclusions. In the passage in Coulson and Forbes it is stated that the owner of land must not take active steps to turn the floods water on to his neighbours property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendants land and so the passage does not support the conclusion of the High Court. The decision in Nields case, (1874) 10 Ex 4 is further based on the "common enemy" doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court. For instance :"Where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to anyone who is injured by his act, no matter where the water which does the mischief came into the water course."Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create an impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.14. In England the early extension of the common drains all over the country under the supervision of the Commissioners of Sewers has rendered a discussion on the rights of flow of surface water needless and, therefore, there are no modern decisions upon the question. But old precedents show that the common law rule appears to be the same as that under civil law. In a case arising in Guernsey, Gibbons v. Lenfestey, AIR 1915 P. C. 165 the Privy Council has applied the rule of civil law to that island. That this is adopted by the common law would appear from the decision in Nelson v. Walker, (1910) 10 C L R 560.15. The rule of civil law according to Domat is quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham"If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title, or by an ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds........."The learned author, after a discussion of old English cases on the point, has stated that the common law regarded the flow of rain water along natural courses as one of its doctrines and that there is no general right thereunder to fight surface water as a common enemy. The author has then observed :"All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading." (P. 2590).After discussing a number of precedents from the American State Courts he has pointed out that the common enemy doctrine is of very recent origin; he has observed at p. 2591"That surface water is not a common enemy, and that there is no right to fight it according to the pleasure of the landowner, clearly appear from the principles which have already been stated."16. We must, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Nields case, (1874) 10 EX 4 the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course. Menzies v. Breadalbane, (1828) 3 Bli. (N.S.) 414. We may repeat that the finding here is that the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type.In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him. | 1[ds]6. We may mention here that the High Court had actually called for certain additional findings from the appellate Court and one of the questions raised was whether there was an immemorial user as contended by the plaintiff to let out Vakada drainage water beyond certain points. In coming to the conclusion that the plaintiff has not been able to establish immemorial user in respect of the right claimed by him of draining of flood waters from his field on to the defendants the High Court has ignored the clear finding of the lower appellate court on this point. We find that there is no justification for the course adopted by the High Court.It would thus be clear that even in the revised finding the appellate court has not been able to fix the precise year of commencement of the phenomenon. It would therefore, follow that upon the evidence available in this case the proper inference to be drawn would be that this phenomenon has been known from time immemorial. A phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity.No doubt the lower appellate court has referred to the years 1920 and 1924 in its finding but it has not said that the phenomenon was observed for the first time in 1924 or even in 1920. It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that.11. The basis of the plaintiffs claim is not the natural right of the owner of higher land to drain off water falling on his land on to lower lands but the basis is that this right was being exercised with respect to the land of the defendants 1 and 2 from time immemorial. The finding of fact of the lower appellate court being in his favour on this point his suit must succeed.12. The High Court, following certain English decisions, came to the conclusion that water being the common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court has relied deal with the rights of riparian owners and are thus not strictly appropriate.13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usualmust, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Nields case, (1874) 10 EX 4 the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course. Menziesv. Breadalbane, (1828) 3 Bli. (N.S.)414. We may repeat that the finding here is that the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type.In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him. | 1 | 2,849 | 631 | ### Instruction:
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common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court has relied deal with the rights of riparian owners and are thus not strictly appropriate.13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usual occurrence. Where a right is based upon the illustration (i) to S. 7 of the Indian Easements Act, 1882 (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and Forbes on Waters and Land Drainage, 6th Ed., p. 191 and a passage from the judgment in Nield v. London and North Western Railway, (1874) 10 Ex 4 in support of its conclusions. In the passage in Coulson and Forbes it is stated that the owner of land must not take active steps to turn the floods water on to his neighbours property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendants land and so the passage does not support the conclusion of the High Court. The decision in Nields case, (1874) 10 Ex 4 is further based on the "common enemy" doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court. For instance :"Where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to anyone who is injured by his act, no matter where the water which does the mischief came into the water course."Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create an impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.14. In England the early extension of the common drains all over the country under the supervision of the Commissioners of Sewers has rendered a discussion on the rights of flow of surface water needless and, therefore, there are no modern decisions upon the question. But old precedents show that the common law rule appears to be the same as that under civil law. In a case arising in Guernsey, Gibbons v. Lenfestey, AIR 1915 P. C. 165 the Privy Council has applied the rule of civil law to that island. That this is adopted by the common law would appear from the decision in Nelson v. Walker, (1910) 10 C L R 560.15. The rule of civil law according to Domat is quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham"If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title, or by an ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds........."The learned author, after a discussion of old English cases on the point, has stated that the common law regarded the flow of rain water along natural courses as one of its doctrines and that there is no general right thereunder to fight surface water as a common enemy. The author has then observed :"All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading." (P. 2590).After discussing a number of precedents from the American State Courts he has pointed out that the common enemy doctrine is of very recent origin; he has observed at p. 2591"That surface water is not a common enemy, and that there is no right to fight it according to the pleasure of the landowner, clearly appear from the principles which have already been stated."16. We must, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Nields case, (1874) 10 EX 4 the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course. Menzies v. Breadalbane, (1828) 3 Bli. (N.S.) 414. We may repeat that the finding here is that the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type.In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him.
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6. We may mention here that the High Court had actually called for certain additional findings from the appellate Court and one of the questions raised was whether there was an immemorial user as contended by the plaintiff to let out Vakada drainage water beyond certain points. In coming to the conclusion that the plaintiff has not been able to establish immemorial user in respect of the right claimed by him of draining of flood waters from his field on to the defendants the High Court has ignored the clear finding of the lower appellate court on this point. We find that there is no justification for the course adopted by the High Court.It would thus be clear that even in the revised finding the appellate court has not been able to fix the precise year of commencement of the phenomenon. It would therefore, follow that upon the evidence available in this case the proper inference to be drawn would be that this phenomenon has been known from time immemorial. A phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity.No doubt the lower appellate court has referred to the years 1920 and 1924 in its finding but it has not said that the phenomenon was observed for the first time in 1924 or even in 1920. It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that.11. The basis of the plaintiffs claim is not the natural right of the owner of higher land to drain off water falling on his land on to lower lands but the basis is that this right was being exercised with respect to the land of the defendants 1 and 2 from time immemorial. The finding of fact of the lower appellate court being in his favour on this point his suit must succeed.12. The High Court, following certain English decisions, came to the conclusion that water being the common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court has relied deal with the rights of riparian owners and are thus not strictly appropriate.13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usualmust, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Nields case, (1874) 10 EX 4 the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course. Menziesv. Breadalbane, (1828) 3 Bli. (N.S.)414. We may repeat that the finding here is that the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type.In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him.
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Patel Bhuder Mavji Etc Vs. Jat Mamdaji Kalaji (Deceased) Through L. Rs. Etc | only the liability for the full assessment of the lands was indicated without any disturbance to the rights inter se between the mortgagors and the mortgagees. Dealing with the question of the advances made and the amounts still due to the creditors, it was ordered that the debtors should pay Rs. 1,698/- in twelve yearly instalments and the award was directed to be modified accordingly.9. The matter was then taken up by way of Civil Revision to the High Court of Gujarat. The High Court arrived at the following conclusions:-(a) The decision of the Bhayati Court merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees. There was no decision that the lands in possession of the mortgagees were confiscated to the State.(b) The Special Mamlatdar rejected the application of the debtor and directed the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati Court amounted to a forfeiture of the lands by the Bajana State.(c) It was not necessary to test the correctness of the decision of the Special Mamlatdar as in view of the provisions in the Debtors Relief Act which was an Act subsequent to the Land Reforms Act the provisions of the latter Act were to prevail.10. In the result the High Court affirmed the order of the Assistant Judge in appeal directing possession to be handed over to the debtors.11. Before us great stress was laid on the decision of the Special Mamlatdar and it was argued that subject to any appeal from his order his decision was binding on the parties and not having gone up in appeal from the order of the Special Mamlatdar the debtors could not be allowed to agitate their rights to the land ignoring the said order. We have not before us the full text of the order of the Special Mamlatdar relied on by the appellants nor are we satisfied from copies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se.In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.In order to get such occupancy rights the creditors had to show that they had become tenants which obviously they could not be under the provisions of Section 6 of the Land Reforms Act.The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants.Under Sec. 76 (c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession. We do not know whether there was a contract in the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgages were only entitled under Section 72 (b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.12. That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in mortgage to the appellants.The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors.Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider. The right of the mortgagors not being extinguished under any provision of law to which our attention was drawn, no fault can be found with the award as finally modified by the judgment of the Assistant Judge and effect must be given thereto. In our view, it is not necessary to consider the point canvassed at length before the High Court and dealt with in the judgment of the said Court as to whether the provisions of the Debtors Relief Act override those in the Land Reforms Act. The objects of the two Acts are different. The object of the Land Reforms Act, as already noted is the improvement of the land revenue administration and putting an end to the Girasdari system an granting of occupancy rights to the Girasadars and/or their tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debts and providing for restoration of their property to debtors.In our view, the rights of the debtors in this case were not extinguished under Land Reforms Act and it was open to Court exercising jurisdiction under Debtors Relief Act to scale down the debt and provide for restoration of the land possession of the mortgagees to the mortgagors on taking fresh accounts the parties and directing payments by party to the other as as been done this case. | 0[ds]We have not before us the full text of the order of the Special Mamlatdar relied on by the appellants nor are we satisfied from copies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se.In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.In order to get such occupancy rights the creditors had to show that they had become tenants which obviously they could not be under the provisions of Section 6 of the Land Reforms Act.The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants.Under Sec. 76 (c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession. We do not know whether there was a contract in the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgages were only entitled under Section 72 (b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.12. That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in mortgage to the appellants.The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors.Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider. The right of the mortgagors not being extinguished under any provision of law to which our attention was drawn, no fault can be found with the award as finally modified by the judgment of the Assistant Judge and effect must be given thereto. In our view, it is not necessary to consider the point canvassed at length before the High Court and dealt with in the judgment of the said Court as to whether the provisions of the Debtors Relief Act override those in the Land Reforms Act. The objects of the two Acts are different. The object of the Land Reforms Act, as already noted is the improvement of the land revenue administration and putting an end to the Girasdari system an granting of occupancy rights to the Girasadars and/or their tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debts and providing for restoration of their property to debtors.In our view, the rights of the debtors in this case were not extinguished under Land Reforms Act and it was open to Court exercising jurisdiction under Debtors Relief Act to scale down the debt and provide for restoration of the land possession of the mortgagees to the mortgagors on taking fresh accounts the parties and directing payments by party to the other as as been done this case. | 0 | 2,999 | 724 | ### Instruction:
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only the liability for the full assessment of the lands was indicated without any disturbance to the rights inter se between the mortgagors and the mortgagees. Dealing with the question of the advances made and the amounts still due to the creditors, it was ordered that the debtors should pay Rs. 1,698/- in twelve yearly instalments and the award was directed to be modified accordingly.9. The matter was then taken up by way of Civil Revision to the High Court of Gujarat. The High Court arrived at the following conclusions:-(a) The decision of the Bhayati Court merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees. There was no decision that the lands in possession of the mortgagees were confiscated to the State.(b) The Special Mamlatdar rejected the application of the debtor and directed the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati Court amounted to a forfeiture of the lands by the Bajana State.(c) It was not necessary to test the correctness of the decision of the Special Mamlatdar as in view of the provisions in the Debtors Relief Act which was an Act subsequent to the Land Reforms Act the provisions of the latter Act were to prevail.10. In the result the High Court affirmed the order of the Assistant Judge in appeal directing possession to be handed over to the debtors.11. Before us great stress was laid on the decision of the Special Mamlatdar and it was argued that subject to any appeal from his order his decision was binding on the parties and not having gone up in appeal from the order of the Special Mamlatdar the debtors could not be allowed to agitate their rights to the land ignoring the said order. We have not before us the full text of the order of the Special Mamlatdar relied on by the appellants nor are we satisfied from copies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se.In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.In order to get such occupancy rights the creditors had to show that they had become tenants which obviously they could not be under the provisions of Section 6 of the Land Reforms Act.The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants.Under Sec. 76 (c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession. We do not know whether there was a contract in the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgages were only entitled under Section 72 (b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.12. That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in mortgage to the appellants.The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors.Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider. The right of the mortgagors not being extinguished under any provision of law to which our attention was drawn, no fault can be found with the award as finally modified by the judgment of the Assistant Judge and effect must be given thereto. In our view, it is not necessary to consider the point canvassed at length before the High Court and dealt with in the judgment of the said Court as to whether the provisions of the Debtors Relief Act override those in the Land Reforms Act. The objects of the two Acts are different. The object of the Land Reforms Act, as already noted is the improvement of the land revenue administration and putting an end to the Girasdari system an granting of occupancy rights to the Girasadars and/or their tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debts and providing for restoration of their property to debtors.In our view, the rights of the debtors in this case were not extinguished under Land Reforms Act and it was open to Court exercising jurisdiction under Debtors Relief Act to scale down the debt and provide for restoration of the land possession of the mortgagees to the mortgagors on taking fresh accounts the parties and directing payments by party to the other as as been done this case.
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We have not before us the full text of the order of the Special Mamlatdar relied on by the appellants nor are we satisfied from copies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se.In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.In order to get such occupancy rights the creditors had to show that they had become tenants which obviously they could not be under the provisions of Section 6 of the Land Reforms Act.The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants.Under Sec. 76 (c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession. We do not know whether there was a contract in the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgages were only entitled under Section 72 (b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.12. That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in mortgage to the appellants.The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors.Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider. The right of the mortgagors not being extinguished under any provision of law to which our attention was drawn, no fault can be found with the award as finally modified by the judgment of the Assistant Judge and effect must be given thereto. In our view, it is not necessary to consider the point canvassed at length before the High Court and dealt with in the judgment of the said Court as to whether the provisions of the Debtors Relief Act override those in the Land Reforms Act. The objects of the two Acts are different. The object of the Land Reforms Act, as already noted is the improvement of the land revenue administration and putting an end to the Girasdari system an granting of occupancy rights to the Girasadars and/or their tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debts and providing for restoration of their property to debtors.In our view, the rights of the debtors in this case were not extinguished under Land Reforms Act and it was open to Court exercising jurisdiction under Debtors Relief Act to scale down the debt and provide for restoration of the land possession of the mortgagees to the mortgagors on taking fresh accounts the parties and directing payments by party to the other as as been done this case.
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Valjibhai Muljibhai Soneji & Anr Vs. State Of Bombay (Now Gujarat) & Ors | set out above clearly show that the State Transport Corporation having been incorporated by an Indian law is a Company. Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, could it be said that the terms of the proviso to sub-s. (1) of s. 6 have been satisfied ? It is contended by the learned Attorney-General on behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay. Even assuming the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue. No doubt, the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by it as its own property. They cannot, therefore, be regarded as public revenue in any sense. It was then said by reference to several provisions of the Act that the Government is entitled to exercise control over the Corporation, that the profits earned by the Corporation would go to the Government, that if the Corporation was wound up all its assets would also go to the Government and that, therefore, the Corporation could be regarded as nothing more than a limb of the Government. Even though that may be so the Corporation is certainly not a department of Government but is a separate legal entity and, therefore, moneys coming out of public revenues whether invested, loaned or granted to it would change their original character and become the funds or assets of the Corporation when they are invested in or transferred or loaned to it. While, therefore, the terms of the proviso could be said to have been satisfied because compensation is to be paid by the Corporation, the acquisition will be bad because the provisions of Part VII of the Land Acquisition Act have not been complied with. In order to get out of this difficulty the learned Attorney-General argued that the State Transport Corporation is a local authority.The expression "local authority" is not defined in the Land Acquisition Act but is defined in s. 3(31) of the General Clauses Act, 1897, as follows :"local authority shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund :"9. The definitions given in the General Clauses Act, 1897, govern all Central Acts and Regulations made after the commencement of the Act. No doubt, this Act was enacted later in point of time than the Land Acquisition Act; but this Act was a consolidating and amending Act and a definition given therein of the expression "local authority" is the same as that contained in the earlier Acts of 1868 and 1887. The definition given in s. 3(31) will, therefore, hold good for construing the expression "local authority" occurring in the Land Acquisition Act. We have already quoted the definition.10. It will be clear from the definition that unless it is shown that the State Transport Corporation is an authority and is legally entitled to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority. No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds. It was no doubt submitted by the learned Attorney-General that the Corporation was furnished with funds by the Government for commencing its business; bus even if that were so, it is difficult to appreciate how that would make the funds of the Corporation local funds.11. Learned Attorney-General then relied upon the provisions of s. 29 of the Bombay State Road Transport Act, 1950, which provides that the Corporation shall for all purposes be deemed to be a local authority. No doubt, that is so. But the definition contained in this Act cannot override the definition contained in the General Clauses Act of 1897 which alone must apply for construing the expression occurring in a Central Act like the Land Acquisition Act unless there is something repugnant in the subject or context. Thought land acquisition is now in the concurrent list and, therefore, the State can legislate, the Bombay Act not having received the Presidents assent, cannot prevail against the meaning of the expression local authority in that Act. No repugnancy is pointed out.Then again, the Act of 1948 had empowered the Province of Bombay, among other provinces, to appoint Road Transport Corporations and conferred power on the Provincial Governments under ss. 5 and 6 to deal with compensation and winding up of Corporations so appointed. In pursuance of this power and after the commencement of the Constitution the Bombay Act of 1950 had been enacted by the State Legislature of Bombay. But by the repeal of the Act of 1948 by the Central Act of 1950 the foundation for the continuance and existence of the Bombay Act of 1950 disappeared. Moreover, since s. 41 of the Central Act provided that a Corporation shall be deemed to be a local authority within the meaning Motor Vehicles Act, 1939, and not within the meaning of any other law, the provisions of s. 29 of the Bombay Act could in no circumstances be said to survive. In view of all this the learned Attorney-General did not press his argument on the point further.12. In our view the acquisition impugned in this case having been made for the benefit of a Corporation, though for a public purpose, is bad because no part of the compensation is to come out of public revenues and the provisions of Part VII of the Land Acquisition Act have not been complied with. | 1[ds].Taking up the last point first, we may point out that no such plea was taken on behalf of the respondents in the trial court. This point was apparently not taken because even before the written statement was filed a notification under s. 6 was in fact made by the State Government. The suits proceeded throughout on the footing that there was no formal defect in regard to their maintainability. In the circumstances we do not think that it would be fair to allow the suits to be defeated merely on such a technical ground.4. Coming to the first point raised on behalf of the appellants it is sufficient to point out that the notification under s. 4 of the Act clearly states that the acquisition is for a public purpose, namely, for State Transport. The notification under s. 6 reiterates this fact and in addition says that the land was needed to be acquired for the purposes of and at the expense of the State Transport Corporation. There is thus a clear declaration of the Government that the purpose of acquisition was a public purpose and as has been consistently held by this Court in a number of cases, including the most recent one, Smt. Somawanti v. The State of Punjab [[1963] 2 S.C.R. 774.], the declaration as to public purpose by the Government is final except where it is a colourable exercise of power. Unless, therefore, it is shown that there was collusion as alleged by the appellants, between the respondents 1 and 3 on the one hand and respondent No. 2 on the other, the notification will have to be regarded as conclusive on the question that the land was required for a public purpose. Thus, even though the land was being acquired for a corporation and not for the State the acquisition must nonetheless be said to be for a public purpose, as has been held in Somawantis case [[1963] 2 S.C.R. 774.], provided that it is not found to be a colourable exercise of power by thequestion whether the acquisition was collusive or mala fide is one of fact and on this point the High Court and the two courts below have come to the conclusion that the appellants have not been able to substantiate their pleas. It is not for this Court to review the evidence in a case where there are concurrent findings of fact, unless there be exceptional reasons, and we find none here. It must, therefore, be held that the notifications of the Government issued under ss. 4 and 6 are conclusive on the question that the land was required for a public purpose.We must, however, point out that before effect can be given to a notification under sub-s. (1) of s. 6 of the Land Acquisition Act the terms of the proviso to that section should be satisfied.The Proviso clearly precludes the Government from making a notification under sub-s. (1) of s. 6 unless the compensation to be awarded for such property (a) is to be paid by a company, or (b) is to come wholly or partly our of (i) public revenues or (ii) some fund controlled or managed by a local authority.It is no doubt true that it has been the appellants case throughout that the State Transport Corporation is a company. It is also a fact that the entire compensation is to come out of the funds of the State Transport Corporation. If, therefore, we accept the contention of the appellants on this point the terms of the proviso will be said to have been satisfied. On the other hand it has been the case of the respondents that the State Transport Corporation is not a company but a local authority. The reason why this contention is raised on behalf of the respondents is that the provisions of Part VII of the Act have not been complied with here and, therefore, if in fact the acquisition is on behalf of a company it will have to be said to be bad on the ground of non-compliance with the provisions of Part VII.It will be clear from these provisions that the old Corporation was recognised as having always had valid legal status and deemed to have been properly incorporated. On the establishment of a Corporation under s. 3 of the Act of 1950 the old Corporation was dissolved. But all action by and transaction with the old Corporation including any action or transaction by which any property or asset etc., was acquired by or for the old Corporation was deemed to have been validly or lawfully taken or done. It is common ground that in consequence of the passing of the Act of 1950 the Bombay Act of 1950 stood impliedly repealed and was in fact expressly repealed by the Bombay Act 29 of 1955. The provisions which we have set out above clearly show that the State Transport Corporation having been incorporated by an Indian law is a Company. Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, could it be said that the terms of the proviso to sub-s. (1) of s. 6 have been satisfied ? It is contended by the learned Attorney-General on behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay. Even assuming the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue. No doubt, the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by it as its own property. They cannot, therefore, be regarded as public revenue in any sense. It was then said by reference to several provisions of the Act that the Government is entitled to exercise control over the Corporation, that the profits earned by the Corporation would go to the Government, that if the Corporation was wound up all its assets would also go to the Government and that, therefore, the Corporation could be regarded as nothing more than a limb of the Government. Even though that may be so the Corporation is certainly not a department of Government but is a separate legal entity and, therefore, moneys coming out of public revenues whether invested, loaned or granted to it would change their original character and become the funds or assets of the Corporation when they are invested in or transferred or loaned to it. While, therefore, the terms of the proviso could be said to have been satisfied because compensation is to be paid by the Corporation, the acquisition will be bad because the provisions of Part VII of the Land Acquisition Act have not been complied with.It will be clear from the definition that unless it is shown that the State Transport Corporation is an authority and is legally entitled to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority. No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds. It was no doubt submitted by the learned Attorney-General that the Corporation was furnished with funds by the Government for commencing its business; bus even if that were so, it is difficult to appreciate how that would make the funds of the Corporation localdoubt, that is so. But the definition contained in this Act cannot override the definition contained in the General Clauses Act of 1897 which alone must apply for construing the expression occurring in a Central Act like the Land Acquisition Act unless there is something repugnant in the subject or context. Thought land acquisition is now in the concurrent list and, therefore, the State can legislate, the Bombay Act not having received the Presidents assent, cannot prevail against the meaning of the expression local authority in that Act. No repugnancy is pointed out.In our view the acquisition impugned in this case having been made for the benefit of a Corporation, though for a public purpose, is bad because no part of the compensation is to come out of public revenues and the provisions of Part VII of the Land Acquisition Act have not been complied with. | 1 | 3,552 | 1,543 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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set out above clearly show that the State Transport Corporation having been incorporated by an Indian law is a Company. Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, could it be said that the terms of the proviso to sub-s. (1) of s. 6 have been satisfied ? It is contended by the learned Attorney-General on behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay. Even assuming the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue. No doubt, the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by it as its own property. They cannot, therefore, be regarded as public revenue in any sense. It was then said by reference to several provisions of the Act that the Government is entitled to exercise control over the Corporation, that the profits earned by the Corporation would go to the Government, that if the Corporation was wound up all its assets would also go to the Government and that, therefore, the Corporation could be regarded as nothing more than a limb of the Government. Even though that may be so the Corporation is certainly not a department of Government but is a separate legal entity and, therefore, moneys coming out of public revenues whether invested, loaned or granted to it would change their original character and become the funds or assets of the Corporation when they are invested in or transferred or loaned to it. While, therefore, the terms of the proviso could be said to have been satisfied because compensation is to be paid by the Corporation, the acquisition will be bad because the provisions of Part VII of the Land Acquisition Act have not been complied with. In order to get out of this difficulty the learned Attorney-General argued that the State Transport Corporation is a local authority.The expression "local authority" is not defined in the Land Acquisition Act but is defined in s. 3(31) of the General Clauses Act, 1897, as follows :"local authority shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund :"9. The definitions given in the General Clauses Act, 1897, govern all Central Acts and Regulations made after the commencement of the Act. No doubt, this Act was enacted later in point of time than the Land Acquisition Act; but this Act was a consolidating and amending Act and a definition given therein of the expression "local authority" is the same as that contained in the earlier Acts of 1868 and 1887. The definition given in s. 3(31) will, therefore, hold good for construing the expression "local authority" occurring in the Land Acquisition Act. We have already quoted the definition.10. It will be clear from the definition that unless it is shown that the State Transport Corporation is an authority and is legally entitled to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority. No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds. It was no doubt submitted by the learned Attorney-General that the Corporation was furnished with funds by the Government for commencing its business; bus even if that were so, it is difficult to appreciate how that would make the funds of the Corporation local funds.11. Learned Attorney-General then relied upon the provisions of s. 29 of the Bombay State Road Transport Act, 1950, which provides that the Corporation shall for all purposes be deemed to be a local authority. No doubt, that is so. But the definition contained in this Act cannot override the definition contained in the General Clauses Act of 1897 which alone must apply for construing the expression occurring in a Central Act like the Land Acquisition Act unless there is something repugnant in the subject or context. Thought land acquisition is now in the concurrent list and, therefore, the State can legislate, the Bombay Act not having received the Presidents assent, cannot prevail against the meaning of the expression local authority in that Act. No repugnancy is pointed out.Then again, the Act of 1948 had empowered the Province of Bombay, among other provinces, to appoint Road Transport Corporations and conferred power on the Provincial Governments under ss. 5 and 6 to deal with compensation and winding up of Corporations so appointed. In pursuance of this power and after the commencement of the Constitution the Bombay Act of 1950 had been enacted by the State Legislature of Bombay. But by the repeal of the Act of 1948 by the Central Act of 1950 the foundation for the continuance and existence of the Bombay Act of 1950 disappeared. Moreover, since s. 41 of the Central Act provided that a Corporation shall be deemed to be a local authority within the meaning Motor Vehicles Act, 1939, and not within the meaning of any other law, the provisions of s. 29 of the Bombay Act could in no circumstances be said to survive. In view of all this the learned Attorney-General did not press his argument on the point further.12. In our view the acquisition impugned in this case having been made for the benefit of a Corporation, though for a public purpose, is bad because no part of the compensation is to come out of public revenues and the provisions of Part VII of the Land Acquisition Act have not been complied with.
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ss. 4 and 6 are conclusive on the question that the land was required for a public purpose.We must, however, point out that before effect can be given to a notification under sub-s. (1) of s. 6 of the Land Acquisition Act the terms of the proviso to that section should be satisfied.The Proviso clearly precludes the Government from making a notification under sub-s. (1) of s. 6 unless the compensation to be awarded for such property (a) is to be paid by a company, or (b) is to come wholly or partly our of (i) public revenues or (ii) some fund controlled or managed by a local authority.It is no doubt true that it has been the appellants case throughout that the State Transport Corporation is a company. It is also a fact that the entire compensation is to come out of the funds of the State Transport Corporation. If, therefore, we accept the contention of the appellants on this point the terms of the proviso will be said to have been satisfied. On the other hand it has been the case of the respondents that the State Transport Corporation is not a company but a local authority. The reason why this contention is raised on behalf of the respondents is that the provisions of Part VII of the Act have not been complied with here and, therefore, if in fact the acquisition is on behalf of a company it will have to be said to be bad on the ground of non-compliance with the provisions of Part VII.It will be clear from these provisions that the old Corporation was recognised as having always had valid legal status and deemed to have been properly incorporated. On the establishment of a Corporation under s. 3 of the Act of 1950 the old Corporation was dissolved. But all action by and transaction with the old Corporation including any action or transaction by which any property or asset etc., was acquired by or for the old Corporation was deemed to have been validly or lawfully taken or done. It is common ground that in consequence of the passing of the Act of 1950 the Bombay Act of 1950 stood impliedly repealed and was in fact expressly repealed by the Bombay Act 29 of 1955. The provisions which we have set out above clearly show that the State Transport Corporation having been incorporated by an Indian law is a Company. Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, could it be said that the terms of the proviso to sub-s. (1) of s. 6 have been satisfied ? It is contended by the learned Attorney-General on behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay. Even assuming the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue. No doubt, the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by it as its own property. They cannot, therefore, be regarded as public revenue in any sense. It was then said by reference to several provisions of the Act that the Government is entitled to exercise control over the Corporation, that the profits earned by the Corporation would go to the Government, that if the Corporation was wound up all its assets would also go to the Government and that, therefore, the Corporation could be regarded as nothing more than a limb of the Government. Even though that may be so the Corporation is certainly not a department of Government but is a separate legal entity and, therefore, moneys coming out of public revenues whether invested, loaned or granted to it would change their original character and become the funds or assets of the Corporation when they are invested in or transferred or loaned to it. While, therefore, the terms of the proviso could be said to have been satisfied because compensation is to be paid by the Corporation, the acquisition will be bad because the provisions of Part VII of the Land Acquisition Act have not been complied with.It will be clear from the definition that unless it is shown that the State Transport Corporation is an authority and is legally entitled to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority. No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds. It was no doubt submitted by the learned Attorney-General that the Corporation was furnished with funds by the Government for commencing its business; bus even if that were so, it is difficult to appreciate how that would make the funds of the Corporation localdoubt, that is so. But the definition contained in this Act cannot override the definition contained in the General Clauses Act of 1897 which alone must apply for construing the expression occurring in a Central Act like the Land Acquisition Act unless there is something repugnant in the subject or context. Thought land acquisition is now in the concurrent list and, therefore, the State can legislate, the Bombay Act not having received the Presidents assent, cannot prevail against the meaning of the expression local authority in that Act. No repugnancy is pointed out.In our view the acquisition impugned in this case having been made for the benefit of a Corporation, though for a public purpose, is bad because no part of the compensation is to come out of public revenues and the provisions of Part VII of the Land Acquisition Act have not been complied with.
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M/s. J.K. Cotton Spinning & Weaving Mills Co. Ltd Vs. The Labour Appellate Tribunal of India, IIIrd Branch, Lucknow & Others | the purpose of manufacturing process carried on by the factory. In coming to this conclusion, the Labour Appellate Tribunal noticed the fact that the expression "industrial employees had not been defined, but it was disposed to derive assistance from the definition of the word "worker in the Factories Act in determining the scope of the expression "industrial employees. No doubt, it was urged before the Tribunal that expression "industrial employees should be understood in the same comprehensive sense as the word "industry as defined in the Industrial Disputes Act, but this contention was rejected by the Tribunal. It seems to us that the Tribunal was in error in limiting the scope of the expression "industrial employees by reference to the definition to the word "worker prescribed by the Factories Act. Indeed, it would be relevant and appropriate to refer to the definition of the word "workman under S. 2(s) of the Industrial Disputes Act, because the G. O. in question has been issued under the Act and the definition of a "workmen prescribed by S. 2 of the Act as S. 2(s) of the Industrial Disputes Act would determine the true denotation of the expression "industrial employees. We must accordingly hold that the Labour Appellate Tribunal was in error in accepting the very narrow construction of the expression "industrial employees used in the Government Order.18. The next point which has been urged before us by Mr. Pathak is in regard to the decision of the Labour Appellate Tribunal awarding the benefit of leave to the respondents on the same lines as S. 79 of the Factories Act. Mr. Pathak attempted to argue that the claim for leave had been made specifically on the basis of provisions of the Factories Act and the U. P. Shops and Commercial Establishments Act, and he suggested that as soon as it was found that these two Acts were inapplicable to the Malis, the said claim should have been rejected. The Labour Appellate Tribunal has, however, held that though the said two Acts do not apply, a claim for leave can be justified on the ground of social justice. Mr. Pathak objects to this decision on the technical ground that the claim itself was based on the provisions of the said two Acts and no other. This contention is not well founded. It does appear that in paragraph 10 of the written statement filed on behalf of the respondents reference is made to the said two Acts, but in the prayer clause the claim is made in general terms without reference to the Acts, and the reference itself is in general terms and makes no mention of the said two Acts. Therefore, the technical ground urged by Mr. Pathak that the relevant claim was made on the provisions of the two specified Acts and should be rejected solely on the ground that the said Acts do not apply, cannot be sustained, It was a general reference which the Adjudicator was called upon the decide and the fact that the said two Acts did not apply, cannot be said to rule out the said claim as to leave in limine.19. Then Mr. Pathak was driven to contend that the ground of social justice given by the Labour Appellate Tribunal in support of its award is really not sound in law, and he referred us to the observations made by this Court on some occasions that the considerations of social justice were "not only irrelevant but untenable vide J. K. Iron and Steel Co. Ltd., Kanpur v. Iron and Steel Mazdoor Union, Kanpur, 1955-2 SCR 1315 : (AIR 1956 SC 231 ) and Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur , 1955-1 SCR 991 : ( (S) AIR 1955 SC 170 ). In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice: vide Messrs. Crown Aluminium Works v. Their Workmen, 1958 SCR 651 : (AIR 1958 SC 30 ) and State of Mysore v. Workers of Gold Mines, 1959 SCR 895 : (AIR 1958 SC 923 ).Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idel for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal to socio-economic equality and its aim is to assist the removal of socio-economic disparties and inequalities; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and labour, and good relationship. The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view that industrial disputes are settled by industrial adjudication on principle of fair-play and justice. That is the reason why on several occasions, industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act. We are, therefore, satisfied that there is no substance in the grievance made by Mr. Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair play and social justice. | 0[ds]We would, therefore, deal with Civil Appeal No. 481/1962In this appeal Mr. Pathak has not disputed the correctness or propriety of the decision of the Labour Appellate Tribunal in regard to the claim made by the respondents in respect of Badris dismissal. So, that part of the dispute need not detain us in the presentpresented, the argument is no doubt prima facie attractive; but as soon as we begin to examine it more carefully, it breaks down. If the construction for which Mr. Pathak contends is accepted without any modification, clerks employed in the factory would not be workmen, because on the test suggested by Mr. Pathak, they are not employed in the spinning or weaving operation carried on by the appellant and yet, there is no doubt that clerks employed by the appellant to do clerical work are workmen under S. 2(s),and so, the literal construction of the clause "employed in any industry cannot be accepted and that means that "employed in any industry must take in employees who are employed in connection with operations incidental to the main industry, and once we are compelled to introduce this concept of incidental connection with the main industry, the literal construction for which the appellant contends has to bewould be noticed that the incidental connection in the present illustration is one degree removed from the main industry; the workmen who work in the industry are intended to be brought to the factory by the buses and it is the these buses that the drivers run. Even so, it would not be easy to exclude drivers of buses engaged by the factory solely for the purpose of transporting its employees to the Mills from their respective homes and back, on the basis that they are not workmen under S. 2(s). Mr. Pathak was unable to resist the extension of the definition to such cases; but nevertheless, he attempted to argue that though sweepers who sweep the premises of the factory may be called workmen, sweepers who sweep the area around the factory may not be included under S. 2(s). Sweeping the area outside the factory, it is argued, may be incidentally connected with the main industry, but the incidental connection is indirect and remote, and so, this class of employees must be excluded from the definition. We are not prepared to accept this argument. In our opinion, an employee who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be a workman provided the other requirements of S. 2(s) are satisfied.12. In this connection, it is hardly necessary to emphasise that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole. Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry. Reverting to the illustration of the buses owned by the factory for the purposes of transporting its workmen if the bus-drivers can legitimately be held to assist operation incidental to the main work of the industry, we do not see why a Mali should not claim that he is also engaged in an operation which is incidental to the main industry.It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and far-fetched. We are not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect or far-fetched. That is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act.14. Before we part with this point; we would like to add that industrial adjudication appears consistently to have taken the view that Malis looking after the gardens attached to the bungalows occupied by officers of any industrial concern are workmen under S.is remarkable that both these decisions which are directly in point, were under S. 2 of the Act with which we are concerned. In dealing with industrial dispute we are reluctant to interfere with the well established and consistent course of decisions pronounced by the Labour Appellate Court unless, of course, it is shown that the said decisions are plainlywill be noticed that the first paragraph makes it perfectly clear that the order binds all the industries affected by it and the workmen employed therein; so that as soon as it is held that the Malis are workmen under S. 2 of the Act, it would follow that the order would apply to the Malis. In considering the present point, it is necessary to bear in mind that this order has been issued in exercise of the powers conferred by cls. (b) and (g) of S. 3 of the Act and that clearly means that persons who are workmen under S. 2 of the Act are referred to by paragraph 1 and there would be no escape from the conclusion that the order would apply to such workmen and industries that employedour opinion, this argument is wholly fallacious. It is clear that the second paragraph refers to industrial or clerical employees, because the table prescribing the minimum basic wages divides the employees into two categories, industrial and clerical. It is only because this division is made by the table that for the purpose of clarification, paragraph 2 mentions industrial or clerical in bracket after referring to the employees. Besides, it would be unreasonable to assume that when the order prescribed minimum basic wages for workmen to whom paragraph 1 expressly refers, it could have been intended that the said minimum basic wages should not be extended to some workmen falling under paragraph 1 because they do not fall under the category of industrial employees or clerical employees. The scheme of the order is plain and unambiguous, to all workmen falling under S. 2 the benefits of the order are intended to be extended. That is the view taken by the Labour Appellate Tribunal and, in our opinion, that view is obviously right. If that be so, the validity of the order passed by the Labour Appellate Tribunal awarding the respondents claim for dear food allowance under paragraph 3 of the G. O. cannot be questioned.No doubt, it was urged before the Tribunal that expression "industrial employees should be understood in the same comprehensive sense as the word "industry as defined in the Industrial Disputes Act, but this contention was rejected by the Tribunal. It seems to us that the Tribunal was in error in limiting the scope of the expression "industrial employees by reference to the definition to the word "worker prescribed by the Factories Act. Indeed, it would be relevant and appropriate to refer to the definition of the word "workman under S. 2(s) of the Industrial Disputes Act, because the G. O. in question has been issued under the Act and the definition of a "workmen prescribed by S. 2 of the Act as S. 2(s) of the Industrial Disputes Act would determine the true denotation of the expression "industrial employees. We must accordingly hold that the Labour Appellate Tribunal was in error in accepting the very narrow construction of the expression "industrial employees used in the Governmentcontention is not well founded. It does appear that in paragraph 10 of the written statement filed on behalf of the respondents reference is made to the said two Acts, but in the prayer clause the claim is made in general terms without reference to the Acts, and the reference itself is in general terms and makes no mention of the said two Acts. Therefore, the technical ground urged by Mr. Pathak that the relevant claim was made on the provisions of the two specified Acts and should be rejected solely on the ground that the said Acts do not apply, cannot be sustained, It was a general reference which the Adjudicator was called upon the decide and the fact that the said two Acts did not apply, cannot be said to rule out the said claim as to leave inour opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice: vide Messrs. Crown Aluminium Works v. Their Workmen, 1958 SCR 651 : (AIR 1958 SC 30 ) and State of Mysore v. Workers of Gold Mines, 1959 SCR 895 : (AIR 1958 SC 923 ).Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idel for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal to socio-economic equality and its aim is to assist the removal of socio-economic disparties and inequalities; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and labour, and good relationship. The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view that industrial disputes are settled by industrial adjudication on principle of fair-play and justice. That is the reason why on several occasions, industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act. We are, therefore, satisfied that there is no substance in the grievance made by Mr. Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair play and social justice. | 0 | 5,206 | 1,990 | ### 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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the purpose of manufacturing process carried on by the factory. In coming to this conclusion, the Labour Appellate Tribunal noticed the fact that the expression "industrial employees had not been defined, but it was disposed to derive assistance from the definition of the word "worker in the Factories Act in determining the scope of the expression "industrial employees. No doubt, it was urged before the Tribunal that expression "industrial employees should be understood in the same comprehensive sense as the word "industry as defined in the Industrial Disputes Act, but this contention was rejected by the Tribunal. It seems to us that the Tribunal was in error in limiting the scope of the expression "industrial employees by reference to the definition to the word "worker prescribed by the Factories Act. Indeed, it would be relevant and appropriate to refer to the definition of the word "workman under S. 2(s) of the Industrial Disputes Act, because the G. O. in question has been issued under the Act and the definition of a "workmen prescribed by S. 2 of the Act as S. 2(s) of the Industrial Disputes Act would determine the true denotation of the expression "industrial employees. We must accordingly hold that the Labour Appellate Tribunal was in error in accepting the very narrow construction of the expression "industrial employees used in the Government Order.18. The next point which has been urged before us by Mr. Pathak is in regard to the decision of the Labour Appellate Tribunal awarding the benefit of leave to the respondents on the same lines as S. 79 of the Factories Act. Mr. Pathak attempted to argue that the claim for leave had been made specifically on the basis of provisions of the Factories Act and the U. P. Shops and Commercial Establishments Act, and he suggested that as soon as it was found that these two Acts were inapplicable to the Malis, the said claim should have been rejected. The Labour Appellate Tribunal has, however, held that though the said two Acts do not apply, a claim for leave can be justified on the ground of social justice. Mr. Pathak objects to this decision on the technical ground that the claim itself was based on the provisions of the said two Acts and no other. This contention is not well founded. It does appear that in paragraph 10 of the written statement filed on behalf of the respondents reference is made to the said two Acts, but in the prayer clause the claim is made in general terms without reference to the Acts, and the reference itself is in general terms and makes no mention of the said two Acts. Therefore, the technical ground urged by Mr. Pathak that the relevant claim was made on the provisions of the two specified Acts and should be rejected solely on the ground that the said Acts do not apply, cannot be sustained, It was a general reference which the Adjudicator was called upon the decide and the fact that the said two Acts did not apply, cannot be said to rule out the said claim as to leave in limine.19. Then Mr. Pathak was driven to contend that the ground of social justice given by the Labour Appellate Tribunal in support of its award is really not sound in law, and he referred us to the observations made by this Court on some occasions that the considerations of social justice were "not only irrelevant but untenable vide J. K. Iron and Steel Co. Ltd., Kanpur v. Iron and Steel Mazdoor Union, Kanpur, 1955-2 SCR 1315 : (AIR 1956 SC 231 ) and Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur , 1955-1 SCR 991 : ( (S) AIR 1955 SC 170 ). In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice: vide Messrs. Crown Aluminium Works v. Their Workmen, 1958 SCR 651 : (AIR 1958 SC 30 ) and State of Mysore v. Workers of Gold Mines, 1959 SCR 895 : (AIR 1958 SC 923 ).Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idel for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal to socio-economic equality and its aim is to assist the removal of socio-economic disparties and inequalities; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and labour, and good relationship. The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view that industrial disputes are settled by industrial adjudication on principle of fair-play and justice. That is the reason why on several occasions, industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act. We are, therefore, satisfied that there is no substance in the grievance made by Mr. Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair play and social justice.
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all the industries affected by it and the workmen employed therein; so that as soon as it is held that the Malis are workmen under S. 2 of the Act, it would follow that the order would apply to the Malis. In considering the present point, it is necessary to bear in mind that this order has been issued in exercise of the powers conferred by cls. (b) and (g) of S. 3 of the Act and that clearly means that persons who are workmen under S. 2 of the Act are referred to by paragraph 1 and there would be no escape from the conclusion that the order would apply to such workmen and industries that employedour opinion, this argument is wholly fallacious. It is clear that the second paragraph refers to industrial or clerical employees, because the table prescribing the minimum basic wages divides the employees into two categories, industrial and clerical. It is only because this division is made by the table that for the purpose of clarification, paragraph 2 mentions industrial or clerical in bracket after referring to the employees. Besides, it would be unreasonable to assume that when the order prescribed minimum basic wages for workmen to whom paragraph 1 expressly refers, it could have been intended that the said minimum basic wages should not be extended to some workmen falling under paragraph 1 because they do not fall under the category of industrial employees or clerical employees. The scheme of the order is plain and unambiguous, to all workmen falling under S. 2 the benefits of the order are intended to be extended. That is the view taken by the Labour Appellate Tribunal and, in our opinion, that view is obviously right. If that be so, the validity of the order passed by the Labour Appellate Tribunal awarding the respondents claim for dear food allowance under paragraph 3 of the G. O. cannot be questioned.No doubt, it was urged before the Tribunal that expression "industrial employees should be understood in the same comprehensive sense as the word "industry as defined in the Industrial Disputes Act, but this contention was rejected by the Tribunal. It seems to us that the Tribunal was in error in limiting the scope of the expression "industrial employees by reference to the definition to the word "worker prescribed by the Factories Act. Indeed, it would be relevant and appropriate to refer to the definition of the word "workman under S. 2(s) of the Industrial Disputes Act, because the G. O. in question has been issued under the Act and the definition of a "workmen prescribed by S. 2 of the Act as S. 2(s) of the Industrial Disputes Act would determine the true denotation of the expression "industrial employees. We must accordingly hold that the Labour Appellate Tribunal was in error in accepting the very narrow construction of the expression "industrial employees used in the Governmentcontention is not well founded. It does appear that in paragraph 10 of the written statement filed on behalf of the respondents reference is made to the said two Acts, but in the prayer clause the claim is made in general terms without reference to the Acts, and the reference itself is in general terms and makes no mention of the said two Acts. Therefore, the technical ground urged by Mr. Pathak that the relevant claim was made on the provisions of the two specified Acts and should be rejected solely on the ground that the said Acts do not apply, cannot be sustained, It was a general reference which the Adjudicator was called upon the decide and the fact that the said two Acts did not apply, cannot be said to rule out the said claim as to leave inour opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice: vide Messrs. Crown Aluminium Works v. Their Workmen, 1958 SCR 651 : (AIR 1958 SC 30 ) and State of Mysore v. Workers of Gold Mines, 1959 SCR 895 : (AIR 1958 SC 923 ).Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idel for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal to socio-economic equality and its aim is to assist the removal of socio-economic disparties and inequalities; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and labour, and good relationship. The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view that industrial disputes are settled by industrial adjudication on principle of fair-play and justice. That is the reason why on several occasions, industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act. We are, therefore, satisfied that there is no substance in the grievance made by Mr. Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair play and social justice.
|
Bhikuse Yamasa Kshatriya Private Limited & Another Vs. Union of India & Another | or otherwise is not bound to attend at times fixed by the owner of the factory does not mean that he can never fulfil the conditions relating to attendance for earning leave with wages. If a deemed worker attends the factory for the full duration fixed as factory hours and works for 240 days or more during a calendar year, he would be entitled to the benefits of ss. 79 and 80 of the Act.The observations made in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], that Pandurang was not bound to work for the period of work displayed in the factory and therefore "his days of work for the purpose of s. 79 could not be calculated" is not inconsistent with the view expressed by us. In Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], no Notification under s. 85 was issued by the State Government, and the Court was considering, whether having regard to the conditions governing his attendance, he could be regarded as a worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued and the workers concerned had worked for the full period of work displayed in the factory for more than 240 days in the preceding year, he would still not have been entitled to annual leave with wages. In our judgment the right to leave with wages arises in favour of a worker or deemed worker under s. 79 only if he has worker or deemed worker under s. 79 only if he was worked during the full period of factory employment for the prescribed number of days in the previous year because by the use of the expression days in s. 79, working for the full period of work displayed in the factory under the appropriate section of the Factories Act is contemplated. Work for a period less than the period displayed will not, in computing the number of days, be taken into account as a day within the meaning of s. 79.11. We may also observe that in Bridhichand Sharma v. First Civil Judge, Nagpur [(1961) 3 S.C.R. 161.], this Court in dealing with the question whether rollers in a bidi factory who were obliged to work within the factory hours, but not for the entire period were entitled to the benefit of s. 79, held on a consideration of all the circumstances, that the bidi rollers being employed in the factory were workers within the meaning of s. 2(1) of the Factories Act, and entitled to that benefit. It was also observed that the leave provided under s. 79 arises as a matter of right when the worker has attended for the minimum number of working days and he is entitled to it, and absence of the worker from attendance for a longer period than that provided by s. 79 had no bearing on his right to leave under that section. That was again a case not covered by a Notification under s. 85. On the facts proved the Court held that the workers in the factory were employed and would if they fulfilled the requirements of s. 79 - viz, the total number of days of work - be entitled to the benefit of leave with pay. The attendance to qualify for leave in that case had obviously to be for the appropriate full period fixed by the owner of the factory.As we have already observed the Act primarily applies to workers strictly so called who are employed in any manufacturing process in a factory, but it is open to the State Government by a Notification to apply all or any of the provisions of the Act to any place wherein any manufacturing process is carried on and if such a Notification is issued the place so declared is to be deemed a factory under the Act, the owner to be deemed an occupier and the person working therein a worker notwithstanding the fact that the number of persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with such owner. If by imposing liability to afford to workers strictly so-called under the Act, there is no infringement of the fundamental right of the owner of the factory to carry on his business, a similar obligation in favour of deemed workers, who satisfy the requirements of s. 79, cannot, having regard to the object of the statute, be regarded as infringing that fundamental right. Therefore by imposing liability to afford to "deemed worker" annual leave with wages under s. 79 and s. 80 in the same manner and to the same extent as is afforded to workers strictly so-called under s. 2(1) of the Factories Act, no unreasonable restriction has been imposed upon the occupier or the owner of the factory.12. To conclude : in our judgment s. 85 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on, and which involves the consequence that the place is deemed a factory and the persons working therein are deemed workers is not by itself discriminatory so as to infringe Art. 14 of the Constitution; nor does the provision amount to authorising imposition of unreasonable restriction upon the fundamental right of the owner of the factory to carry on his business. The impugned Notification issued under s. 85(1) is also not open to attack on the ground that the State has issued the Notification by selecting for application of the provisions of the Act, some out of the places in which bidi manufacturing processes are carried on. Nor does the Notification in so far as it seeks to apply the provisions of the Act imposing upon the owner or an occupier of the factory obligation to grant annual leave with wages impose any unreasonable restriction. | 0[ds]3. Premises in which a manufacturing process is carried on where the number of workers is less than the minimum prescribed do not fall within the definition of factory. Again a person to be a worker must be employed in a manufacturing process or in cleansing machinery used for the process, or in any work incidental to or connected with the manufacturing process. To attract the provisions of the Factories Act which confer certain benefits and privileges upon workers and impose obligations upon owners of factories qua those workers, there must, therefore, be a manufacturing process carried on in any premises, the number of persons working in the manufacturing process or cleansing machinery used for the process or in work incidental to or connected therewith be not less than the number specified in the definition in s. 2(m) and that the persons so working must be employed (under a contract of service) for wages or not and directly or indirectly. A person working in a factory, but not under a contract of service cannot be regarded as a worker within the meaning of that expression in s. 2(1) of the Act.Section 85 of the Factories Act which occurs in Ch.The policy underlying s. 85 authorising the State Government to extend the benefit of the Act is apparent on its face. The section aims at making provision for securing the health and safety of persons engaged in hazardous employments, and for that purpose the Legislature has entrusted to the State Governments, in the case of establishments not falling expressly within the regulatory provisions of the Act, authority to extend those provisions, where the necessity to regulate, having regard to the circumstances, is felt. The power to extend the regulatory provisions of the Act is therefore not intended to confer an arbitrary power to pick and choose between establishments similarly situate : it is granted with a view to secure the protection of persons engaged in industrial occupations in the light of special circumstances of a particular industry, a locality or an establishment, where circumstances justifying the extension of the protection exist. The conditions of small establishments in different parts of the country may and do widely vary. Control in respect of some industries or establishments not governed by the Factories Act may not be necessary, whereas necessity in that behalf may be acutely felt in others. It is to carry out effectively the object underlying the Act that power has been given to the State Government to decide with reference to local conditions whether it is desirable that the provisions of the Act or any of them should be made applicable to any establishment which is not covered by the definition of "factory" or to workers in a factory who are not entitled to the benefits of the Act, because of the definition of "employment.It is true that even if a statute which permits executive action to be taken is not ultra vires, but the executive action taken under the statute in the matter of selection may be ultra vires if it infringes any fundamental right. In the present case, however, the affidavit of Mr. V. N. Pimenta, Under Secretary to Government of Maharashtra in the Industries and, Labour Department, discloses clearly the basis on which the factories mentioned in the Schedule were selected by the Notification under s. 85(1). In paragraph 7 of his affidavit it is stated"On careful consideration of the facts of this (Shankar Balaji Wajes) case the Government of Maharashtra was of the view that for the purpose of protecting the bidi rollers against any arbitrary treatment by the bidi manufacturers, and to maintain the protection given to them under the Factories Act which they had hitherto obtained prior to the decision of this Honble Court in the case of Shankar Balaji Waje a Notification under s. 85 of the Factories Act, 1948 should be issued. Accordingly, the Government of Maharashtra issued the impugned Notification including therein those factories which were on the register of Factories maintained by the Chief Inspector of Factories."He further stated that probably there were other bidi manufacturing establishments to which the provisions of the Factories Act were applicable, but these factories were not within the purview of the impugned Notification because they were not on the register of factories maintained under the Factories Act and on the basis of which the impugned Notification was issued. But such establishments were not included in that register because of the failure of the owners to register them. Mr. Pimenta said that the Government was making enquiries about such other factories and that they would or would not be brought under the purview of the Act, as circumstances demanded, by amendment of the impugned notification under s. 85 of the Factories Act when the enquiries were over. He further stated that the impugned Notification was issued to maintain industrial peace and harmony. There is nothing on the record to discredit these statements. Before the impugned Notification was issued, the Bombay and other High Courts had held that bidi workers who though not servants of the owners of the bidi factories in which they were working, were still employed in a manufacturing process to whom the benefits of the Factories Act were admissible. As a result of the clarification of the legal position by the decision of this Court in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], there was grave unrest among bidi rollers and the State Government felt obliged to intervene for the protection of bidi rollers against deprivation of benefits previously accorded to them for an appreciable length of time, and with that object in view in the first instance applied the provisions of the Factories Act by Notification issued under s. 85(1) to all such establishments as were included in the list maintained by the Chief Inspector of Factories and commenced an enquiry for including others which were not included in that list. In the situation which arose inclusion of bidi manufactories registered as factories with the Chief Inspector of Factories in which bidis were rolled by workers must be deemed to be a rational basis for classification. The fact that to other factories carrying on the same business but not included in the list of the Chief Inspector of Factories, the provisions of the Act were not extended immediately does not expose the Notification to a charge of absence of rational classification. Selective application of a law by an authority such as a State based on an objective test such as entry in the list maintained by the Chief Inspector of Factories in the exercise of statutory authority, would in the light of the emergency, be deemed to be a rational basis for classification. It also appears from the affidavit of Mr. Pimenta that the Government of Maharashtra is holding enquiries about other factories which may properly be, but are not, included, because of absence of adequate information. The exclusion of owners of bidi establishments, not on the list of the Chief Inspector of Factories, is ex facie not due to any differentiation made with "an evil eye or uneven hand" but on account of the felt necessity of a situation which caused great hardship to a large number of workers, and rectification of which in the interest of maintaining industrial peace brooked no delay.It was urged, however, that the application of all the provisions of the Factories Act without considering the appropriateness of extending the individual provisions, infringed Art. 19 of the Constitution. It was submitted that provisions like ss. 79 and 80 which only apply to factories employing persons who work under contracts of service with the owner would be wholly inapplicable to persons who work under contracts not of service with the owner of the factory and who are under no obligation to attend the factory for any fixed duration during working hours or for any fixed number of days during the year, and providing benefits for such persons by extending those provisions amounts to imposing unreasonable restrictions upon the right of the owner of the factory. Section 79(1) provides for grant of annual leave with wages for the number of days calculated at certain rates to every worker who has worked for a period of 240 days or more in a factory during a calendar year. Section 80 is consequential upon s. 79 : it provides that a worker shall be paid for the leave allowed to him at the rate equal to the daily average wage of his total full time earnings for the days on which he worked during the month immediately preceding his leave exclusive of any over-time and bonus but inclusive of dearness allowance and cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles. Section 79 clearly applies to workers who work for the full period of employment during factory hours and for the prescribed number of days and it may appear at first sight somewhat inappropriate that the benefit of annual leave with wages should be extended by Notification under s. 85(1) to persons who do not work for the hours fixed for the establishment. But it is in our judgment clear that s. 79 if it is made applicable by notification under s. 85 would apply to those workers only who work in the factory for the full period prescribed under ss. 61, 71 and 66(1) of the Factories Act by the employer for not less than the number of qualifying days. A "deemed worker" who is paid only for work done by him and who is under no obligation to attend at any fixed time may be entitled to benefit of annual leave with wages only if he fulfils the working conditions applicable to workers as defined in s. 2(1) of the Act. The privilege of working for a period less than the period prescribed for regular workers in a factory will not, if he works for less than the prescribed hours, come to the aid of a deemed worker so as to enable him to claim the benefits of s. 79; but that privilege will not deprive him, if he fulfils the conditions relating to the duration of work, of the benefit of s. 79. The fact that a deemed worker in a factory, to which s. 79 is extended by a Notification, by virtue of his contract or otherwise is not bound to attend at times fixed by the owner of the factory does not mean that he can never fulfil the conditions relating to attendance for earning leave with wages. If a deemed worker attends the factory for the full duration fixed as factory hours and works for 240 days or more during a calendar year, he would be entitled to the benefits of ss. 79 and 80 of the Act.The observations made in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], that Pandurang was not bound to work for the period of work displayed in the factory and therefore "his days of work for the purpose of s. 79 could not be calculated" is not inconsistent with the view expressed by us. In Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], no Notification under s. 85 was issued by the State Government, and the Court was considering, whether having regard to the conditions governing his attendance, he could be regarded as a worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued and the workers concerned had worked for the full period of work displayed in the factory for more than 240 days in the preceding year, he would still not have been entitled to annual leave with wages. In our judgment the right to leave with wages arises in favour of a worker or deemed worker under s. 79 only if he has worker or deemed worker under s. 79 only if he was worked during the full period of factory employment for the prescribed number of days in the previous year because by the use of the expression days in s. 79, working for the full period of work displayed in the factory under the appropriate section of the Factories Act is contemplated. Work for a period less than the period displayed will not, in computing the number of days, be taken into account as a day within the meaning of s. 79.11. We may also observe that in Bridhichand Sharma v. First Civil Judge, Nagpur [(1961) 3 S.C.R. 161.], this Court in dealing with the question whether rollers in a bidi factory who were obliged to work within the factory hours, but not for the entire period were entitled to the benefit of s. 79, held on a consideration of all the circumstances, that the bidi rollers being employed in the factory were workers within the meaning of s. 2(1) of the Factories Act, and entitled to that benefit. It was also observed that the leave provided under s. 79 arises as a matter of right when the worker has attended for the minimum number of working days and he is entitled to it, and absence of the worker from attendance for a longer period than that provided by s. 79 had no bearing on his right to leave under that section. That was again a case not covered by a Notification under s. 85. On the facts proved the Court held that the workers in the factory were employed and would if they fulfilled the requirements of s. 79 - viz, the total number of days of work - be entitled to the benefit of leave with pay. The attendance to qualify for leave in that case had obviously to be for the appropriate full period fixed by the owner of the factory.As we have already observed the Act primarily applies to workers strictly so called who are employed in any manufacturing process in a factory, but it is open to the State Government by a Notification to apply all or any of the provisions of the Act to any place wherein any manufacturing process is carried on and if such a Notification is issued the place so declared is to be deemed a factory under the Act, the owner to be deemed an occupier and the person working therein a worker notwithstanding the fact that the number of persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with such owner. If by imposing liability to afford to workers strictly so-called under the Act, there is no infringement of the fundamental right of the owner of the factory to carry on his business, a similar obligation in favour of deemed workers, who satisfy the requirements of s. 79, cannot, having regard to the object of the statute, be regarded as infringing that fundamental right. Therefore by imposing liability to afford to "deemed worker" annual leave with wages under s. 79 and s. 80 in the same manner and to the same extent as is afforded to workers strictly so-called under s. 2(1) of the Factories Act, no unreasonable restriction has been imposed upon the occupier or the owner of the factory.12. To conclude : in our judgment s. 85 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on, and which involves the consequence that the place is deemed a factory and the persons working therein are deemed workers is not by itself discriminatory so as to infringe Art. 14 of the Constitution; nor does the provision amount to authorising imposition of unreasonable restriction upon the fundamental right of the owner of the factory to carry on his business. The impugned Notification issued under s. 85(1) is also not open to attack on the ground that the State has issued the Notification by selecting for application of the provisions of the Act, some out of the places in which bidi manufacturing processes are carried on. Nor does the Notification in so far as it seeks to apply the provisions of the Act imposing upon the owner or an occupier of the factory obligation to grant annual leave with wages impose any unreasonable restriction. | 0 | 7,579 | 2,959 | ### 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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or otherwise is not bound to attend at times fixed by the owner of the factory does not mean that he can never fulfil the conditions relating to attendance for earning leave with wages. If a deemed worker attends the factory for the full duration fixed as factory hours and works for 240 days or more during a calendar year, he would be entitled to the benefits of ss. 79 and 80 of the Act.The observations made in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], that Pandurang was not bound to work for the period of work displayed in the factory and therefore "his days of work for the purpose of s. 79 could not be calculated" is not inconsistent with the view expressed by us. In Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], no Notification under s. 85 was issued by the State Government, and the Court was considering, whether having regard to the conditions governing his attendance, he could be regarded as a worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued and the workers concerned had worked for the full period of work displayed in the factory for more than 240 days in the preceding year, he would still not have been entitled to annual leave with wages. In our judgment the right to leave with wages arises in favour of a worker or deemed worker under s. 79 only if he has worker or deemed worker under s. 79 only if he was worked during the full period of factory employment for the prescribed number of days in the previous year because by the use of the expression days in s. 79, working for the full period of work displayed in the factory under the appropriate section of the Factories Act is contemplated. Work for a period less than the period displayed will not, in computing the number of days, be taken into account as a day within the meaning of s. 79.11. We may also observe that in Bridhichand Sharma v. First Civil Judge, Nagpur [(1961) 3 S.C.R. 161.], this Court in dealing with the question whether rollers in a bidi factory who were obliged to work within the factory hours, but not for the entire period were entitled to the benefit of s. 79, held on a consideration of all the circumstances, that the bidi rollers being employed in the factory were workers within the meaning of s. 2(1) of the Factories Act, and entitled to that benefit. It was also observed that the leave provided under s. 79 arises as a matter of right when the worker has attended for the minimum number of working days and he is entitled to it, and absence of the worker from attendance for a longer period than that provided by s. 79 had no bearing on his right to leave under that section. That was again a case not covered by a Notification under s. 85. On the facts proved the Court held that the workers in the factory were employed and would if they fulfilled the requirements of s. 79 - viz, the total number of days of work - be entitled to the benefit of leave with pay. The attendance to qualify for leave in that case had obviously to be for the appropriate full period fixed by the owner of the factory.As we have already observed the Act primarily applies to workers strictly so called who are employed in any manufacturing process in a factory, but it is open to the State Government by a Notification to apply all or any of the provisions of the Act to any place wherein any manufacturing process is carried on and if such a Notification is issued the place so declared is to be deemed a factory under the Act, the owner to be deemed an occupier and the person working therein a worker notwithstanding the fact that the number of persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with such owner. If by imposing liability to afford to workers strictly so-called under the Act, there is no infringement of the fundamental right of the owner of the factory to carry on his business, a similar obligation in favour of deemed workers, who satisfy the requirements of s. 79, cannot, having regard to the object of the statute, be regarded as infringing that fundamental right. Therefore by imposing liability to afford to "deemed worker" annual leave with wages under s. 79 and s. 80 in the same manner and to the same extent as is afforded to workers strictly so-called under s. 2(1) of the Factories Act, no unreasonable restriction has been imposed upon the occupier or the owner of the factory.12. To conclude : in our judgment s. 85 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on, and which involves the consequence that the place is deemed a factory and the persons working therein are deemed workers is not by itself discriminatory so as to infringe Art. 14 of the Constitution; nor does the provision amount to authorising imposition of unreasonable restriction upon the fundamental right of the owner of the factory to carry on his business. The impugned Notification issued under s. 85(1) is also not open to attack on the ground that the State has issued the Notification by selecting for application of the provisions of the Act, some out of the places in which bidi manufacturing processes are carried on. Nor does the Notification in so far as it seeks to apply the provisions of the Act imposing upon the owner or an occupier of the factory obligation to grant annual leave with wages impose any unreasonable restriction.
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or otherwise is not bound to attend at times fixed by the owner of the factory does not mean that he can never fulfil the conditions relating to attendance for earning leave with wages. If a deemed worker attends the factory for the full duration fixed as factory hours and works for 240 days or more during a calendar year, he would be entitled to the benefits of ss. 79 and 80 of the Act.The observations made in Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], that Pandurang was not bound to work for the period of work displayed in the factory and therefore "his days of work for the purpose of s. 79 could not be calculated" is not inconsistent with the view expressed by us. In Shankar Balaji Wajes case [(1962) Supp. 1 S.C.R. 249.], no Notification under s. 85 was issued by the State Government, and the Court was considering, whether having regard to the conditions governing his attendance, he could be regarded as a worker. The observation relied upon does not mean and could not have intended to mean that if a Notification under s. 85 had been issued and the workers concerned had worked for the full period of work displayed in the factory for more than 240 days in the preceding year, he would still not have been entitled to annual leave with wages. In our judgment the right to leave with wages arises in favour of a worker or deemed worker under s. 79 only if he has worker or deemed worker under s. 79 only if he was worked during the full period of factory employment for the prescribed number of days in the previous year because by the use of the expression days in s. 79, working for the full period of work displayed in the factory under the appropriate section of the Factories Act is contemplated. Work for a period less than the period displayed will not, in computing the number of days, be taken into account as a day within the meaning of s. 79.11. We may also observe that in Bridhichand Sharma v. First Civil Judge, Nagpur [(1961) 3 S.C.R. 161.], this Court in dealing with the question whether rollers in a bidi factory who were obliged to work within the factory hours, but not for the entire period were entitled to the benefit of s. 79, held on a consideration of all the circumstances, that the bidi rollers being employed in the factory were workers within the meaning of s. 2(1) of the Factories Act, and entitled to that benefit. It was also observed that the leave provided under s. 79 arises as a matter of right when the worker has attended for the minimum number of working days and he is entitled to it, and absence of the worker from attendance for a longer period than that provided by s. 79 had no bearing on his right to leave under that section. That was again a case not covered by a Notification under s. 85. On the facts proved the Court held that the workers in the factory were employed and would if they fulfilled the requirements of s. 79 - viz, the total number of days of work - be entitled to the benefit of leave with pay. The attendance to qualify for leave in that case had obviously to be for the appropriate full period fixed by the owner of the factory.As we have already observed the Act primarily applies to workers strictly so called who are employed in any manufacturing process in a factory, but it is open to the State Government by a Notification to apply all or any of the provisions of the Act to any place wherein any manufacturing process is carried on and if such a Notification is issued the place so declared is to be deemed a factory under the Act, the owner to be deemed an occupier and the person working therein a worker notwithstanding the fact that the number of persons working therein are not employed by the owner thereof but are working with the permission of or under agreement with such owner. If by imposing liability to afford to workers strictly so-called under the Act, there is no infringement of the fundamental right of the owner of the factory to carry on his business, a similar obligation in favour of deemed workers, who satisfy the requirements of s. 79, cannot, having regard to the object of the statute, be regarded as infringing that fundamental right. Therefore by imposing liability to afford to "deemed worker" annual leave with wages under s. 79 and s. 80 in the same manner and to the same extent as is afforded to workers strictly so-called under s. 2(1) of the Factories Act, no unreasonable restriction has been imposed upon the occupier or the owner of the factory.12. To conclude : in our judgment s. 85 which authorises the State Government to issue a Notification applying all or any of the provisions of the Act to any place in which a manufacturing process is carried on, and which involves the consequence that the place is deemed a factory and the persons working therein are deemed workers is not by itself discriminatory so as to infringe Art. 14 of the Constitution; nor does the provision amount to authorising imposition of unreasonable restriction upon the fundamental right of the owner of the factory to carry on his business. The impugned Notification issued under s. 85(1) is also not open to attack on the ground that the State has issued the Notification by selecting for application of the provisions of the Act, some out of the places in which bidi manufacturing processes are carried on. Nor does the Notification in so far as it seeks to apply the provisions of the Act imposing upon the owner or an occupier of the factory obligation to grant annual leave with wages impose any unreasonable restriction.
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Alembic Chemicals Works Company Limited Vs. Commissioner of Income Tax, Gujarat | totally new and different type of plant and machinery. Shri Ramachandran is again right in the submission that the mere improvement in or updating of the fermentation process would not necessarily be inconsistent with the relevance and continuing utility of the existing infrastructure, machinery and plant of the assessee. 27. It would, in our opinion, be unrealistic to ignore the rapid advances in researches in antibiotic medical microbiology and to attribute a degree of endurability and permanence to the technical know how at any particular stage in this fast changing area of medical science. The state of the art in some of these areas of high priority research is constantly updated so that the know-how cannot be said to be the element of the requisite degree of durability and non-ephemerality to share the requirements and qualifications of an enduring capital asset. The rapid strides in science and technology in the field should make us a little slow and circumspect in too readily pigeon-holing an outlay, such as this as capital. The circumstance that the agreement insofar as it placed limitations on the right of the assessee in dealing with the know-how and the conditions as to non-partiability, confidentiality and secrecy of the know-how incline towards the inference that the right pertained more to the use of the know-how than to its exclusive acquisition. 28. In the present case, the principal reason that influenced the option of the High Court was that the initiation and exploitation of the new process brought in their wake a new venture requiring an altogether new plant. We are afraid, this view may not be justified. Clause (2), (4) and (6) of the agreement provide: (2) For and in consideration of the sub-cultures, design, flow sheet and written description to be furnished by Meiji to Alembic pursuant to paragraph (1) hereof, Alembic shall pay to Meiji in advance and in lump sum, such an amount as Meiji is able to collect Fifty thousand U. S. Dollars ($ 50, 000) net in Tokyo after deducting any taxes and charges to be imposed in Indian upon Meiji with respect to the said payment to Meiji. (4) Meiji will give advice, to the extent considered necessary by Meiji, on any difficulty Alembic may encounter in applying the sub-cultures and informations obtained by Alembic from Meiji to the large scale manufacture. The above provision shall be in force after Meijis receipt of the amount set forth in paragraph (2) hereof until the end of two (2) years from the effective date of this agreement. (6) Any of the sub-cultures and informations obtained by Alembic from Meiji shall be regarded as strictly confidential by Alembic and its personal and shall be used by Alembic only in its Penicillin G plant in India, and shall not be disclosed to any other person, firm or agency, governmental or private. Alembic shall take all reasonable steps to ensure that such sub-cultures and information will not be communicated. Alembic shall take all possible precautions against the escape from its premises of the strain obtained from Meiji or propagated therefrom. Alembic shall not apply for any patent to any country in relation to any of the sub-cultures and information obtained by Alembic from Meiji. 29. As notified earlier the Tribunal in the course of its order, held: Meiji agreed to give the designs etc., not only for a pilot plant but for the manufacture of penicillin according to Meijis process on commercial scale. The assessee has to put in a larger plant modelled on the pilot plant. 30. Having regard to the terms of clause (4) of the agreement, this conclusion is non-sequitur. 31. The improvisation in the process and technology in some areas of the enterprise was supplemental to the existing business and there was no material to hold that it amounted to a new or fresh venture. The further circumstance that the agreement pertained to a product already in the line of the assessees established business and not to a new product indicates that what was stipulated was an improvement in the operations of the existing business and its efficiency and profitability not removed from the area of the day to day business of the assessees established enterprise. 32. It appears to us that the answer to the questions referred should be on the basis that the financial outlay under the agreement was for the better conduct and improvement of the existing business and should, therefore, be held to be revenue expenditure. Reference may also be made to the observations of this Court in CIT v. CIBA of India Ltd ((1968) 2 SCR 696 , 705 : AIR 1968 SC 1131 : 69 ITR 692) . 33. There is also no single definitive criterion which, by itself, is determinative whether a particular outlay is capital or revenue. The `once for all payment test is also inconclusive. What is relevant is the purpose of the outlay and its intended object and effect, considered in a commonsense way having regard to the business realities. In a given case, the test of `enduring benefit might break down. In CIT v. Associated Cement Companies Ltd. (1988 Supp SCC 378 : 1988 SCC (Tax) 358), this Court said : (SCC p. 382, para 10)As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 4 SCC 25 : 1980 SCC (Tax) 335 : (1980) 124 ITR 1 ), that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. | 1[ds]It would, in our opinion, be unrealistic to ignore the rapid advances in researches in antibiotic medical microbiology and to attribute a degree of endurability and permanence to the technical know how at any particular stage in this fast changing area of medical science. The state of the art in some of these areas of high priority research is constantly updated so that the know-how cannot be said to be the element of the requisite degree of durability and non-ephemerality to share the requirements and qualifications of an enduring capital asset. The rapid strides in science and technology in the field should make us a little slow and circumspect in too readily pigeon-holing an outlay, such as this as capital. The circumstance that the agreement insofar as it placed limitations on the right of the assessee in dealing with the know-how and the conditions as to non-partiability, confidentiality and secrecy of the know-how incline towards the inference that the right pertained more to the use of the know-how than to its exclusive acquisition31. The improvisation in the process and technology in some areas of the enterprise was supplemental to the existing business and there was no material to hold that it amounted to a new or fresh venture. The further circumstance that the agreement pertained to a product already in the line of the assessees established business and not to a new product indicates that what was stipulated was an improvement in the operations of the existing business and its efficiency and profitability not removed from the area of the day to day business of the assessees established enterprise32. It appears to us that the answer to the questions referred should be on the basis that the financial outlay under the agreement was for the better conduct and improvement of the existing business and should, therefore, be held to be revenue expenditure. Reference may also be made to the observations of this Court in CIT v. CIBA of India Ltd ((1968) 2 SCR 696 , 705 : AIR 1968 SC 1131 : 69 ITR 692) 33. There is also no single definitive criterion which, by itself, is determinative whether a particular outlay is capital or revenue. The `once for all payment test is also inconclusive. What is relevant is the purpose of the outlay and its intended object and effect, considered in a commonsense way having regard to the business realities. In a given case, the test of `enduring benefit might break down. In CIT v. Associated Cement Companies Ltd. (1988 Supp SCC 378 : 1988 SCC (Tax) 358), this Court said : (SCC p. 382, para 10)As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 4 SCC 25 : 1980 SCC (Tax) 335 : (1980) 124 ITR 1 ), that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test34. In the result, for the forgoing reasons the appeal succeed and is allowed and the question of law referred to the High Court for its opinion in Income Tax Reference No. 78 of 1970 is answered in the affirmative and against the revenue. The judgment under appeal is set aside35. Likewise, the supplementary question of law raised in ITA No. 24 of 1971 before the High Court and now constituting the subject matter of the supplementary reference made by the Tribunal to this Court is answered in the negative and against revenue | 1 | 5,857 | 718 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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totally new and different type of plant and machinery. Shri Ramachandran is again right in the submission that the mere improvement in or updating of the fermentation process would not necessarily be inconsistent with the relevance and continuing utility of the existing infrastructure, machinery and plant of the assessee. 27. It would, in our opinion, be unrealistic to ignore the rapid advances in researches in antibiotic medical microbiology and to attribute a degree of endurability and permanence to the technical know how at any particular stage in this fast changing area of medical science. The state of the art in some of these areas of high priority research is constantly updated so that the know-how cannot be said to be the element of the requisite degree of durability and non-ephemerality to share the requirements and qualifications of an enduring capital asset. The rapid strides in science and technology in the field should make us a little slow and circumspect in too readily pigeon-holing an outlay, such as this as capital. The circumstance that the agreement insofar as it placed limitations on the right of the assessee in dealing with the know-how and the conditions as to non-partiability, confidentiality and secrecy of the know-how incline towards the inference that the right pertained more to the use of the know-how than to its exclusive acquisition. 28. In the present case, the principal reason that influenced the option of the High Court was that the initiation and exploitation of the new process brought in their wake a new venture requiring an altogether new plant. We are afraid, this view may not be justified. Clause (2), (4) and (6) of the agreement provide: (2) For and in consideration of the sub-cultures, design, flow sheet and written description to be furnished by Meiji to Alembic pursuant to paragraph (1) hereof, Alembic shall pay to Meiji in advance and in lump sum, such an amount as Meiji is able to collect Fifty thousand U. S. Dollars ($ 50, 000) net in Tokyo after deducting any taxes and charges to be imposed in Indian upon Meiji with respect to the said payment to Meiji. (4) Meiji will give advice, to the extent considered necessary by Meiji, on any difficulty Alembic may encounter in applying the sub-cultures and informations obtained by Alembic from Meiji to the large scale manufacture. The above provision shall be in force after Meijis receipt of the amount set forth in paragraph (2) hereof until the end of two (2) years from the effective date of this agreement. (6) Any of the sub-cultures and informations obtained by Alembic from Meiji shall be regarded as strictly confidential by Alembic and its personal and shall be used by Alembic only in its Penicillin G plant in India, and shall not be disclosed to any other person, firm or agency, governmental or private. Alembic shall take all reasonable steps to ensure that such sub-cultures and information will not be communicated. Alembic shall take all possible precautions against the escape from its premises of the strain obtained from Meiji or propagated therefrom. Alembic shall not apply for any patent to any country in relation to any of the sub-cultures and information obtained by Alembic from Meiji. 29. As notified earlier the Tribunal in the course of its order, held: Meiji agreed to give the designs etc., not only for a pilot plant but for the manufacture of penicillin according to Meijis process on commercial scale. The assessee has to put in a larger plant modelled on the pilot plant. 30. Having regard to the terms of clause (4) of the agreement, this conclusion is non-sequitur. 31. The improvisation in the process and technology in some areas of the enterprise was supplemental to the existing business and there was no material to hold that it amounted to a new or fresh venture. The further circumstance that the agreement pertained to a product already in the line of the assessees established business and not to a new product indicates that what was stipulated was an improvement in the operations of the existing business and its efficiency and profitability not removed from the area of the day to day business of the assessees established enterprise. 32. It appears to us that the answer to the questions referred should be on the basis that the financial outlay under the agreement was for the better conduct and improvement of the existing business and should, therefore, be held to be revenue expenditure. Reference may also be made to the observations of this Court in CIT v. CIBA of India Ltd ((1968) 2 SCR 696 , 705 : AIR 1968 SC 1131 : 69 ITR 692) . 33. There is also no single definitive criterion which, by itself, is determinative whether a particular outlay is capital or revenue. The `once for all payment test is also inconclusive. What is relevant is the purpose of the outlay and its intended object and effect, considered in a commonsense way having regard to the business realities. In a given case, the test of `enduring benefit might break down. In CIT v. Associated Cement Companies Ltd. (1988 Supp SCC 378 : 1988 SCC (Tax) 358), this Court said : (SCC p. 382, para 10)As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 4 SCC 25 : 1980 SCC (Tax) 335 : (1980) 124 ITR 1 ), that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test.
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It would, in our opinion, be unrealistic to ignore the rapid advances in researches in antibiotic medical microbiology and to attribute a degree of endurability and permanence to the technical know how at any particular stage in this fast changing area of medical science. The state of the art in some of these areas of high priority research is constantly updated so that the know-how cannot be said to be the element of the requisite degree of durability and non-ephemerality to share the requirements and qualifications of an enduring capital asset. The rapid strides in science and technology in the field should make us a little slow and circumspect in too readily pigeon-holing an outlay, such as this as capital. The circumstance that the agreement insofar as it placed limitations on the right of the assessee in dealing with the know-how and the conditions as to non-partiability, confidentiality and secrecy of the know-how incline towards the inference that the right pertained more to the use of the know-how than to its exclusive acquisition31. The improvisation in the process and technology in some areas of the enterprise was supplemental to the existing business and there was no material to hold that it amounted to a new or fresh venture. The further circumstance that the agreement pertained to a product already in the line of the assessees established business and not to a new product indicates that what was stipulated was an improvement in the operations of the existing business and its efficiency and profitability not removed from the area of the day to day business of the assessees established enterprise32. It appears to us that the answer to the questions referred should be on the basis that the financial outlay under the agreement was for the better conduct and improvement of the existing business and should, therefore, be held to be revenue expenditure. Reference may also be made to the observations of this Court in CIT v. CIBA of India Ltd ((1968) 2 SCR 696 , 705 : AIR 1968 SC 1131 : 69 ITR 692) 33. There is also no single definitive criterion which, by itself, is determinative whether a particular outlay is capital or revenue. The `once for all payment test is also inconclusive. What is relevant is the purpose of the outlay and its intended object and effect, considered in a commonsense way having regard to the business realities. In a given case, the test of `enduring benefit might break down. In CIT v. Associated Cement Companies Ltd. (1988 Supp SCC 378 : 1988 SCC (Tax) 358), this Court said : (SCC p. 382, para 10)As observed by the Supreme Court in the decision in Empire Jute Co. Ltd. v. CIT ((1980) 4 SCC 25 : 1980 SCC (Tax) 335 : (1980) 124 ITR 1 ), that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principles laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test34. In the result, for the forgoing reasons the appeal succeed and is allowed and the question of law referred to the High Court for its opinion in Income Tax Reference No. 78 of 1970 is answered in the affirmative and against the revenue. The judgment under appeal is set aside35. Likewise, the supplementary question of law raised in ITA No. 24 of 1971 before the High Court and now constituting the subject matter of the supplementary reference made by the Tribunal to this Court is answered in the negative and against revenue
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Vijayalaxmi Cashew Company and Others Vs. Deputy Commercial Tax Officer and Anr | was not an essential characteristic of a vegetable oil. If the oil is not liquid, it did not cease to be oil. The groundnut oil assumed semi-solid condition if kept for long enough time in a refrigerator. There was no use to which the groundnut oil could be put for which hydrogenated oil was not put.12. As has been noted in the judgment in Shanmugha Vilas Case, raw cashew nut cannot be used as edible nut at all. Moreover, there is no dispute that it can be used for more than one purpose. Therefore, in our judgment, it will not be right to say that the decision in Tungabhadras Case has in any way whittled down the principles laid down in Shanmugha Vilas Case. 13. In the case of Deputy Commissioner of Sales Tax (Law) v. Pio Food Packers 1981 ECR 47D (SC) = ECR C 575 SC = 1980 (46) STC 63 SC], it was held that when pineapple fruit was processed into pineapple slices for the purpose of being sold in sealed cans, there was no consumption of the original pineapple fruit for the purpose of manufacturing and the case did not fall within Section 5A(1)(a) of the Kerala General Sales Tax Act, 1963. The language of Clause (a) of Section 5A(1) of the Kerala General Sales Tax Act was "consumes such goods in the manufacture of other goods for sale or otherwise". All that this Court laid down was that when pineapple was sliced and canned for sale, the slices did not cease to be pineapple. It was pointed out in that case that there was no essential difference between pineapple fruit and canned slices. It was held that Clause (a) of Section 5A(1) truly spoke of goods consumed in the manufacture of other goods for sale. This Court merely held that if pineapple is sliced and made ready for sale in the market, the slices did not lose the character of being pineapple. There again it was a case of a fruit which was merely sliced and made ready for sale by adding preservatives and by canning. This case also does not in any away affect the principles laid down in the case of Shanmugha Vilas. Furthermore, in that case, the problem was construction of the word consume in Section 5A(1)(a) of Kerala General Sales Tax Act. 14. In the case of Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan, 1981 ECR 51D (SC) = ECR C 520 SC = 1980 (46) STC 256 (SC), it was held by this Court that "rayon tyre-cord fabric" was "rayon fabric". It was observed by Pathak, J. (as his Lordship then was) that "it was fairly well-settled that the words or expressions must be construed in the sense in which they are understood in the trade by the dealer and the consumer. It is they who are concerned with it and it is the sense in which they understand it that constitutes the definitive index of the legislative intention when the statute was enacted." * 15. In the instant case also, if the common parlance test is applied, cashew nuts and cashew kernels have different markets altogether. It is true that in the case of Shanmugha Vilas, it was noted that the finding of the High Court was not disputed seriously before this Court. But nothing has been brought on record to contradict the finding of the High Court in that case in any one of the cases now before us. 16. Sterling Foods v. State of Karnataka 1986 (63) STC 239 ) was a case of export of lobsters. In that case the appellants purchased shrimps, prawns and lobsters locally for complying with orders for export and they cut the heads and tails of the shrimps, prawns and lobsters and then they were subjected to peeling, deveining and cleaning and freezing before being exported in cartons. The appellants claimed that no local sale-tax was payable by them in view of Section 5(3) of the Central Sales Tax Act, 1956 which precluded levy of sales-tax on local purchase if they were made pursuant to export orders and the sale was of those goods purchased. It was held by this Court that by reason of processing of the goods after their purchase, there was no change in their identity and that, in fact, commercially they were to be regarded as the original goods. 17. This case does not help the appellants. Even if a purchaser goes to the retail market to buy lobsters, the seller may, if so required by the buyer, peel the shell and cut the head and tail of the lobsters according to the direction of the customer. But the sale will, nonetheless, be of lobsters. If this is done on a big scale by a trader, the character of the goods sold will not change. The goods that were purchased were those goods which were exported.18. In the cases under appeal, it has been noted in the order dated 15th April, 1982 by the Deputy Commercial Tax Officer that cashew nut was commercially a different commodity from raw cashew nut as oil was extracted and thereafter kernels were exported under separate contracts. It also appears from the said order of 15th April, 1982 that an amount of Rs. 18, 419/- has been added back to the turnover on account of sale of cashew nut. Therefore, a purchaser of raw cashew nut can extract oil and sell it in the domestic market; he can also sell the husk locally; he can also extract the kernels after going through an elaborate process and sell them with or without further processing to the exporter for fulfilling his export commitments. Since raw cashew nuts can be used for so many purposes and the process of extracting the kernels so elaborate, it cannot be said that the goods (raw cashew nuts) purchased in the penultimate sale were the same goods (cashew nut kernels) which were sold for export. | 0[ds]3. In our view, the distinction sought to be drawn between the provisions of sub-section (3) of Section 5 of the Act and Article 286(1) of the Constitution is misconceived. Under Article 286(1), the Court has to examine whether any tax is being imposed by the State Legislature on the sale or purchase of goods "in the course of the import of the goods into or export of the goods out of the territory of India". In order to resist imposition of sales tax by the State, the assessee will have to establish the identity of the goods purchased with the goods to be exported out of the territory of India. In order to fulfil an export obligation, if an exporter purchases goods and as a result of some processing, the identity and character of the goods change then it will not be a case of export of the same goods. There is no dispute that every change does not bring into existence new goods nor can it be said that however small the change may be due to the processing, the identity of the goods will be completely lost. It is a question of fact and degree. But the point to note is that the issue before the Supreme Court in Shanmugha Vilas Case (supra) and the issue that has been raised in the present case are the same. Therefore, it will be wrong to distinguish the judgment of the Supreme Court in Shanmugha Vilas Case (supra) as confined to Article 286 of the Constitution. We are unable to uphold the argument that this judgment does not throw any light on the interpretation of sub-section (3) of Section 5 of the Act. The controversy raised in both the cases is about the identity of the goods purchased and the identity of the goods sold. In the case before us, the penultimate sale is in question. The Supreme Court considered only the case of the actual export sale or the last sale in course of export under Article 286 of the Constitution. But here, we have a case of a sale which took place immediately before the actual sale for export. In the case of Mohd. Serajuddin v. State of Orissa 1975 (36) STC 136 (SC), it was held that under Article 286, the sale which was not liable to tax under the State Sales Tax Act was only the actual sale by the exporter, but the benefit of export sale did not extend to the penultimate sale to the Indian exporter for the purpose of export. This led to insertion of sub-section (3) of Section 5 of the Central Sales Tax Act with effect from 1st April, 1976 whereby the last sale or purchase of any goods preceding the sale or purchase occasioning the export of the goods were also granted exemption from the State levy. But in order to claim protection of sub-section (3) of Section 5, the assessee will have to establish that the last sale or purchase before the sale or purchase occasioning export were of those goods which were exported. The deeming section expands the concept of export sales to include the penultimate sale or purchase of goods preceding sale or purchase occasioning the export. But the penultimate sale or purchase of goods must be of those goods which were actuallyno distinction can be drawn between the cases now under appeal and the decision of this Court in Shanmugha Vilass Case on the plea that the scope of sub-section (3) of Section 5 of the Central Sales Tax Act was wider than Article 286 of the Constitution. It is true that sub-section (3) by a legal fiction has widened the scope of export sale, but the basic concept remains the same. In order to get immunity from taxation by the State legislature the goods exported must be the same goods which wereaspect of the matter was gone into in-depth in Shanmugha Vilas Case (supra) by S. R. Das, J. (as he then was). It has been recorded in the judgment of Das, J. that the case was heard at great lengths and over several days and ultimately the High Court was directed to investigate into the disputed facts and send a report. On the basis of the report given by the High Court, the appeals were heard and finally disposed of. It will be wrong to distinguish this case on the ground of any special facts. It does not appear from the judgment that any special feature of cashew trade peculiar to Shanmugha Vilas was considered by this Court. The appellants have also not been able to show any special fact in this case which is contrary to what has been found in the judgment of Das, J. In fact, no endeavour has at all been made to show how cashew kernels are extracted and in what way the kernels are basically nothing but the fruits originally plucked. The facts noted in the remand report sent by the High Court have not been shown to be contrary to the facts found in the case of the appellants.It was argued, and some of the High Courts have also taken the view, that this judgment is confined to the facts of this case. But this, in our opinion, will be a wrong view to take. By that judgment as many as eight appeals were disposed of. The High Court on remand had made a report on how the edible kernels are extracted from raw cashew nuts and having examined minutely the whole process, the Court came to the conclusion that the kernels were not the same goods as raw cashew nuts purchased by the dealers. What was exported were the edible kernels and what was purchased for the purpose of export were raw cashew nuts. This Court has taken the view that after examining the facts in detail the final products were not the same goods as raw cashew nuts.We are also unable to uphold the contention that perception of this Court, as will appear from the later judgments has changed in this regard. A judgment of a Five-Judge Bench, which has not been doubted by any later judgment of this Court, cannot be treated as overruled by implication. The judgments on which the reliance was placed on behalf of the appellants do not support this contention in any manner. In the case of M/s. Tungabhadra Industries Ltd. v. The Commercial Tax Officer, Kurnool, 1961 (2) SCR 14 , a Bench of five Judges had to decide the question whether refined oil continues to be groundnut oil within the meaning of Rules 5(1)(k) and 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. It was argued that such oil did not possess the characteristic colour or taste or odour, etc. of raw groundnut oil. The Tribunal as well as the High Court had taken the view that hydrogenated oil (Vanaspati) ceased to be groundnut oil by reason of the chemical changes which resulted in the acquisition of new properties including the loss of its fluidity. The Tribunal as well as the High Court had taken the view that Vanaspati was not groundnut oil, but a product of groundnut oil, manufactured out of groundnut oil and therefore not entitled to the benefit of the deduction under Rule 18(2). This Court upheld the contention made on behalf of the appellant that hydrogenated groundnut oil was no lesser groundnut oil than either refined or even unrefined oil. The fact that the quality of the oil had been improved did not negative its continuing to be oil and the materials before the Departmental authorities and the Court held that it continued to be oil and was nothing more.We fail to see how the principles laid down in the case of Tungabhadra (supra) runs counter to the ratio of the judgment of this Court in the case of Shanmugha Vilas (supra). This Court in the Tungabhadra case (supra) laid down that liquid state was not an essential characteristic of a vegetable oil. If the oil is not liquid, it did not cease to be oil. The groundnut oil assumed semi-solid condition if kept for long enough time in a refrigerator. There was no use to which the groundnut oil could be put for which hydrogenated oil was not put.12. As has been noted in the judgment in Shanmugha Vilas Case, raw cashew nut cannot be used as edible nut at all. Moreover, there is no dispute that it can be used for more than one purpose. Therefore, in our judgment, it will not be right to say that the decision in Tungabhadras Case has in any way whittled down the principles laid down in Shanmugha Vilas Case.This case does not help the appellants. Even if a purchaser goes to the retail market to buy lobsters, the seller may, if so required by the buyer, peel the shell and cut the head and tail of the lobsters according to the direction of the customer. But the sale will, nonetheless, be of lobsters. If this is done on a big scale by a trader, the character of the goods sold will not change. The goods that were purchased were those goods which were exported.18. In the cases under appeal, it has been noted in the order dated 15th April, 1982 by the Deputy Commercial Tax Officer that cashew nut was commercially a different commodity from raw cashew nut as oil was extracted and thereafter kernels were exported under separate contracts. It also appears from the said order of 15th April, 1982 that an amount of Rs. 18, 419/- has been added back to the turnover on account of sale of cashew nut. Therefore, a purchaser of raw cashew nut can extract oil and sell it in the domestic market; he can also sell the husk locally; he can also extract the kernels after going through an elaborate process and sell them with or without further processing to the exporter for fulfilling his export commitments. Since raw cashew nuts can be used for so many purposes and the process of extracting the kernels so elaborate, it cannot be said that the goods (raw cashew nuts) purchased in the penultimate sale were the same goods (cashew nut kernels) which were sold for export. | 0 | 4,108 | 1,901 | ### 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:
was not an essential characteristic of a vegetable oil. If the oil is not liquid, it did not cease to be oil. The groundnut oil assumed semi-solid condition if kept for long enough time in a refrigerator. There was no use to which the groundnut oil could be put for which hydrogenated oil was not put.12. As has been noted in the judgment in Shanmugha Vilas Case, raw cashew nut cannot be used as edible nut at all. Moreover, there is no dispute that it can be used for more than one purpose. Therefore, in our judgment, it will not be right to say that the decision in Tungabhadras Case has in any way whittled down the principles laid down in Shanmugha Vilas Case. 13. In the case of Deputy Commissioner of Sales Tax (Law) v. Pio Food Packers 1981 ECR 47D (SC) = ECR C 575 SC = 1980 (46) STC 63 SC], it was held that when pineapple fruit was processed into pineapple slices for the purpose of being sold in sealed cans, there was no consumption of the original pineapple fruit for the purpose of manufacturing and the case did not fall within Section 5A(1)(a) of the Kerala General Sales Tax Act, 1963. The language of Clause (a) of Section 5A(1) of the Kerala General Sales Tax Act was "consumes such goods in the manufacture of other goods for sale or otherwise". All that this Court laid down was that when pineapple was sliced and canned for sale, the slices did not cease to be pineapple. It was pointed out in that case that there was no essential difference between pineapple fruit and canned slices. It was held that Clause (a) of Section 5A(1) truly spoke of goods consumed in the manufacture of other goods for sale. This Court merely held that if pineapple is sliced and made ready for sale in the market, the slices did not lose the character of being pineapple. There again it was a case of a fruit which was merely sliced and made ready for sale by adding preservatives and by canning. This case also does not in any away affect the principles laid down in the case of Shanmugha Vilas. Furthermore, in that case, the problem was construction of the word consume in Section 5A(1)(a) of Kerala General Sales Tax Act. 14. In the case of Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan, 1981 ECR 51D (SC) = ECR C 520 SC = 1980 (46) STC 256 (SC), it was held by this Court that "rayon tyre-cord fabric" was "rayon fabric". It was observed by Pathak, J. (as his Lordship then was) that "it was fairly well-settled that the words or expressions must be construed in the sense in which they are understood in the trade by the dealer and the consumer. It is they who are concerned with it and it is the sense in which they understand it that constitutes the definitive index of the legislative intention when the statute was enacted." * 15. In the instant case also, if the common parlance test is applied, cashew nuts and cashew kernels have different markets altogether. It is true that in the case of Shanmugha Vilas, it was noted that the finding of the High Court was not disputed seriously before this Court. But nothing has been brought on record to contradict the finding of the High Court in that case in any one of the cases now before us. 16. Sterling Foods v. State of Karnataka 1986 (63) STC 239 ) was a case of export of lobsters. In that case the appellants purchased shrimps, prawns and lobsters locally for complying with orders for export and they cut the heads and tails of the shrimps, prawns and lobsters and then they were subjected to peeling, deveining and cleaning and freezing before being exported in cartons. The appellants claimed that no local sale-tax was payable by them in view of Section 5(3) of the Central Sales Tax Act, 1956 which precluded levy of sales-tax on local purchase if they were made pursuant to export orders and the sale was of those goods purchased. It was held by this Court that by reason of processing of the goods after their purchase, there was no change in their identity and that, in fact, commercially they were to be regarded as the original goods. 17. This case does not help the appellants. Even if a purchaser goes to the retail market to buy lobsters, the seller may, if so required by the buyer, peel the shell and cut the head and tail of the lobsters according to the direction of the customer. But the sale will, nonetheless, be of lobsters. If this is done on a big scale by a trader, the character of the goods sold will not change. The goods that were purchased were those goods which were exported.18. In the cases under appeal, it has been noted in the order dated 15th April, 1982 by the Deputy Commercial Tax Officer that cashew nut was commercially a different commodity from raw cashew nut as oil was extracted and thereafter kernels were exported under separate contracts. It also appears from the said order of 15th April, 1982 that an amount of Rs. 18, 419/- has been added back to the turnover on account of sale of cashew nut. Therefore, a purchaser of raw cashew nut can extract oil and sell it in the domestic market; he can also sell the husk locally; he can also extract the kernels after going through an elaborate process and sell them with or without further processing to the exporter for fulfilling his export commitments. Since raw cashew nuts can be used for so many purposes and the process of extracting the kernels so elaborate, it cannot be said that the goods (raw cashew nuts) purchased in the penultimate sale were the same goods (cashew nut kernels) which were sold for export.
### Response:
0
### Explanation:
were heard and finally disposed of. It will be wrong to distinguish this case on the ground of any special facts. It does not appear from the judgment that any special feature of cashew trade peculiar to Shanmugha Vilas was considered by this Court. The appellants have also not been able to show any special fact in this case which is contrary to what has been found in the judgment of Das, J. In fact, no endeavour has at all been made to show how cashew kernels are extracted and in what way the kernels are basically nothing but the fruits originally plucked. The facts noted in the remand report sent by the High Court have not been shown to be contrary to the facts found in the case of the appellants.It was argued, and some of the High Courts have also taken the view, that this judgment is confined to the facts of this case. But this, in our opinion, will be a wrong view to take. By that judgment as many as eight appeals were disposed of. The High Court on remand had made a report on how the edible kernels are extracted from raw cashew nuts and having examined minutely the whole process, the Court came to the conclusion that the kernels were not the same goods as raw cashew nuts purchased by the dealers. What was exported were the edible kernels and what was purchased for the purpose of export were raw cashew nuts. This Court has taken the view that after examining the facts in detail the final products were not the same goods as raw cashew nuts.We are also unable to uphold the contention that perception of this Court, as will appear from the later judgments has changed in this regard. A judgment of a Five-Judge Bench, which has not been doubted by any later judgment of this Court, cannot be treated as overruled by implication. The judgments on which the reliance was placed on behalf of the appellants do not support this contention in any manner. In the case of M/s. Tungabhadra Industries Ltd. v. The Commercial Tax Officer, Kurnool, 1961 (2) SCR 14 , a Bench of five Judges had to decide the question whether refined oil continues to be groundnut oil within the meaning of Rules 5(1)(k) and 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. It was argued that such oil did not possess the characteristic colour or taste or odour, etc. of raw groundnut oil. The Tribunal as well as the High Court had taken the view that hydrogenated oil (Vanaspati) ceased to be groundnut oil by reason of the chemical changes which resulted in the acquisition of new properties including the loss of its fluidity. The Tribunal as well as the High Court had taken the view that Vanaspati was not groundnut oil, but a product of groundnut oil, manufactured out of groundnut oil and therefore not entitled to the benefit of the deduction under Rule 18(2). This Court upheld the contention made on behalf of the appellant that hydrogenated groundnut oil was no lesser groundnut oil than either refined or even unrefined oil. The fact that the quality of the oil had been improved did not negative its continuing to be oil and the materials before the Departmental authorities and the Court held that it continued to be oil and was nothing more.We fail to see how the principles laid down in the case of Tungabhadra (supra) runs counter to the ratio of the judgment of this Court in the case of Shanmugha Vilas (supra). This Court in the Tungabhadra case (supra) laid down that liquid state was not an essential characteristic of a vegetable oil. If the oil is not liquid, it did not cease to be oil. The groundnut oil assumed semi-solid condition if kept for long enough time in a refrigerator. There was no use to which the groundnut oil could be put for which hydrogenated oil was not put.12. As has been noted in the judgment in Shanmugha Vilas Case, raw cashew nut cannot be used as edible nut at all. Moreover, there is no dispute that it can be used for more than one purpose. Therefore, in our judgment, it will not be right to say that the decision in Tungabhadras Case has in any way whittled down the principles laid down in Shanmugha Vilas Case.This case does not help the appellants. Even if a purchaser goes to the retail market to buy lobsters, the seller may, if so required by the buyer, peel the shell and cut the head and tail of the lobsters according to the direction of the customer. But the sale will, nonetheless, be of lobsters. If this is done on a big scale by a trader, the character of the goods sold will not change. The goods that were purchased were those goods which were exported.18. In the cases under appeal, it has been noted in the order dated 15th April, 1982 by the Deputy Commercial Tax Officer that cashew nut was commercially a different commodity from raw cashew nut as oil was extracted and thereafter kernels were exported under separate contracts. It also appears from the said order of 15th April, 1982 that an amount of Rs. 18, 419/- has been added back to the turnover on account of sale of cashew nut. Therefore, a purchaser of raw cashew nut can extract oil and sell it in the domestic market; he can also sell the husk locally; he can also extract the kernels after going through an elaborate process and sell them with or without further processing to the exporter for fulfilling his export commitments. Since raw cashew nuts can be used for so many purposes and the process of extracting the kernels so elaborate, it cannot be said that the goods (raw cashew nuts) purchased in the penultimate sale were the same goods (cashew nut kernels) which were sold for export.
|
V. Sukumaran Vs. State of Kerala and Ors | grounds set out hereinabove for the claim of the Appellant in para 8 were, once again, repeated before us. 15. Learned Counsel for the Appellant also sought to emphasise that pension is a right vested in a Government servant and is not a bounty payable at the will and pleasure of the Government as also that pension is a social welfare measure and a post retirement entitlement; something with which we began our order. (D.S. Nakara and Ors. v. Union of India (1983) 1 SCC 305 U.P. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. (2006) 9 SCC 630 ; Deokinandan Prasad v. The State of Bihar and Ors. 1971(2) SCC 330). 16. On the other hand, it was contended on behalf of the Respondents, once again, that the Appellant could not be treated at par with those CLR workers, who were absorbed as SLR workers vide G.O. dated 20.8.1993 as the concept of regularisation of long and continuous service giving benefit to casual employees could not be equated with a casual employee getting a permanent job through KPSC. The Appellant had been enjoying the benefits as a direct recruit to a higher post since 1983, which were not available to his other original co-workers till 2001 when they were regularised by the G.O. dated 31.3.2001. Had the inter-departmental transfer to the Fisheries Department not have taken place, the Appellant in any case would not have been in a position to lay a claim. Conclusion: 17. We have given our thoughtful consideration to the controversy before us, albeit in a limited contour. Leave was granted in this matter on 23.4.2010 but the matter has seen its fate of hearing only after a decade despite hearing being expedited when leave was granted! 18. We are unable to accept the rationale and reasoning of the learned Single Judge and the Division Bench of the High Court in the given facts and circumstances of the case. 19. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind, i.e., to facilitate a retired Government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities. 20. While looking into the facts and circumstances of the case, there is no dispute about the time period spent by the Appellant as a CLR worker and his being at serial No. 2 for grant of pensionary benefits in the list of details of CLR workers had he continued as one. The Appellant was able to advance his career by going through a process of direct recruitment by the KPSC successfully. It is not a case of some unreasonable or improper benefit being extended to the Appellant but that he competed against others and was successfully recruited. 21. It is also not in dispute that he was transferred to the Fisheries Department albeit at his own request and demitted office from there after earning promotion. To say that the Appellant would be denied the benefit of the period spent as CLR worker for his pensionary benefit would be to treat his case as inferior one to the case of other CLR workers, who never went through a system of recruitment for regularisation but were regularised in the Fisheries Department to provide better working conditions and monetary benefits to the employees. Can it really be said that a regularly recruited person like the Appellant should not get the benefit which the other people who were CLR workers would get, having spent more than 7 years in that capacity? The answer, in our view, is in the negative, as it would amount to whittling away long years of service as a CLR worker of 1678 days (7 years 4 months and 23 days). 22. Had the Respondents not issued the G.O.s, no doubt the Appellant would have no claim. The claim of the Appellant arises from the G.O.s, which are beneficial efforts for the CLR workers to improve the conditions of working along with monetary benefits. The Appellant did work for the aforesaid long period of time as a CLR worker and should, thus, be entitled to the same on parity vis-à-vis other CLR workers. The Appellant was at serial No. 2 in the aforementioned list and would have been so absorbed when 29 posts were created. In fact, only 27 posts out of these were filled in. It is thus not even a case where no post existed or that it would affect anybody else, or that the Government would be compelled to create a post for the Appellant. In fact, in terms of the G.O. dated 21.8.2006 an equalisation has been given of 200 days of work as a CLR worker to one years regular service for the purposes of pension. While one would commend such effort by the State Government, it would be very unreasonable to deny this to the Appellant in view of the aforesaid facts. 23. What also weighs with us is that the Appellant is being deprived of the maximum pensionable service which would be permissible to him if his period of CLR service is recognised as qualifying service and there is no reason to deny the same to him when other CLR workers have got this benefit at the time of their absorption and subsequent regularisation as SLR workers and who would have, by virtue of joining at a later point of time, rendered less service. We also feel that Rule 13 of the Service Rules would possibly come to the aid of the rationale we seek to adopt as on absorption in the establishment, such persons are given the benefit of counting 50 per cent of their earlier work service prior to absorption for the purposes of pension. | 1[ds]. Leave was granted in this matter on 23.4.2010 but the matter has seen its fate of hearing only after a decade despite hearing being expedited when leave was granted!18. We are unable to accept the rationale and reasoning of the learned Single Judge and the Division Bench of the High Court in the given facts and circumstances of the case.19. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind, i.e., to facilitate a retired Government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities.20. While looking into the facts and circumstances of the case, there is no dispute about the time period spent by the Appellant as a CLR worker and his being at serial No. 2 for grant of pensionary benefits in the list of details of CLR workers had he continued as one. The Appellant was able to advance his career by going through a process of direct recruitment by the KPSC successfully. It is not a case of some unreasonable or improper benefit being extended to the Appellant but that he competed against others and was successfully recruited.21. It is also not in dispute that he was transferred to the Fisheries Department albeit at his own request and demitted office from there after earning promotion. To say that the Appellant would be denied the benefit of the period spent as CLR worker for his pensionary benefit would be to treat his case as inferior one to the case of other CLR workers, who never went through a system of recruitment for regularisation but were regularised in the Fisheries Department to provide better working conditions and monetary benefits to the employees. Can it really be said that a regularly recruited person like the Appellant should not get the benefit which the other people who were CLR workers would get, having spent more than 7 years in that capacity? The answer, in our view, is in the negative, as it would amount to whittling away long years of service as a CLR worker of 1678 days (7 years 4 months and 23 days).22. Had the Respondents not issued the G.O.s, no doubt the Appellant would have no claim. The claim of the Appellant arises from the G.O.s, which are beneficial efforts for the CLR workers to improve the conditions of working along with monetary benefits. The Appellant did work for the aforesaid long period of time as a CLR worker and should, thus, be entitled to the same on parity vis-à-vis other CLR workers. The Appellant was at serial No. 2 in the aforementioned list and would have been so absorbed when 29 posts were created. In fact, only 27 posts out of these were filled in. It is thus not even a case where no post existed or that it would affect anybody else, or that the Government would be compelled to create a post for the Appellant. In fact, in terms of the G.O. dated 21.8.2006 an equalisation has been given of 200 days of work as a CLR worker to one years regular service for the purposes of pension. While one would commend such effort by the State Government, it would be very unreasonable to deny this to the Appellant in view of the aforesaid facts.23. What also weighs with us is that the Appellant is being deprived of the maximum pensionable service which would be permissible to him if his period of CLR service is recognised as qualifying service and there is no reason to deny the same to him when other CLR workers have got this benefit at the time of their absorption and subsequent regularisation as SLR workers and who would have, by virtue of joining at a later point of time, rendered less service. We also feel that Rule 13 of the Service Rules would possibly come to the aid of the rationale we seek to adopt as on absorption in the establishment, such persons are given the benefit of counting 50 per cent of their earlier work service prior to absorption for the purposes of pension. | 1 | 3,201 | 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.
### Input:
grounds set out hereinabove for the claim of the Appellant in para 8 were, once again, repeated before us. 15. Learned Counsel for the Appellant also sought to emphasise that pension is a right vested in a Government servant and is not a bounty payable at the will and pleasure of the Government as also that pension is a social welfare measure and a post retirement entitlement; something with which we began our order. (D.S. Nakara and Ors. v. Union of India (1983) 1 SCC 305 U.P. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. (2006) 9 SCC 630 ; Deokinandan Prasad v. The State of Bihar and Ors. 1971(2) SCC 330). 16. On the other hand, it was contended on behalf of the Respondents, once again, that the Appellant could not be treated at par with those CLR workers, who were absorbed as SLR workers vide G.O. dated 20.8.1993 as the concept of regularisation of long and continuous service giving benefit to casual employees could not be equated with a casual employee getting a permanent job through KPSC. The Appellant had been enjoying the benefits as a direct recruit to a higher post since 1983, which were not available to his other original co-workers till 2001 when they were regularised by the G.O. dated 31.3.2001. Had the inter-departmental transfer to the Fisheries Department not have taken place, the Appellant in any case would not have been in a position to lay a claim. Conclusion: 17. We have given our thoughtful consideration to the controversy before us, albeit in a limited contour. Leave was granted in this matter on 23.4.2010 but the matter has seen its fate of hearing only after a decade despite hearing being expedited when leave was granted! 18. We are unable to accept the rationale and reasoning of the learned Single Judge and the Division Bench of the High Court in the given facts and circumstances of the case. 19. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind, i.e., to facilitate a retired Government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities. 20. While looking into the facts and circumstances of the case, there is no dispute about the time period spent by the Appellant as a CLR worker and his being at serial No. 2 for grant of pensionary benefits in the list of details of CLR workers had he continued as one. The Appellant was able to advance his career by going through a process of direct recruitment by the KPSC successfully. It is not a case of some unreasonable or improper benefit being extended to the Appellant but that he competed against others and was successfully recruited. 21. It is also not in dispute that he was transferred to the Fisheries Department albeit at his own request and demitted office from there after earning promotion. To say that the Appellant would be denied the benefit of the period spent as CLR worker for his pensionary benefit would be to treat his case as inferior one to the case of other CLR workers, who never went through a system of recruitment for regularisation but were regularised in the Fisheries Department to provide better working conditions and monetary benefits to the employees. Can it really be said that a regularly recruited person like the Appellant should not get the benefit which the other people who were CLR workers would get, having spent more than 7 years in that capacity? The answer, in our view, is in the negative, as it would amount to whittling away long years of service as a CLR worker of 1678 days (7 years 4 months and 23 days). 22. Had the Respondents not issued the G.O.s, no doubt the Appellant would have no claim. The claim of the Appellant arises from the G.O.s, which are beneficial efforts for the CLR workers to improve the conditions of working along with monetary benefits. The Appellant did work for the aforesaid long period of time as a CLR worker and should, thus, be entitled to the same on parity vis-à-vis other CLR workers. The Appellant was at serial No. 2 in the aforementioned list and would have been so absorbed when 29 posts were created. In fact, only 27 posts out of these were filled in. It is thus not even a case where no post existed or that it would affect anybody else, or that the Government would be compelled to create a post for the Appellant. In fact, in terms of the G.O. dated 21.8.2006 an equalisation has been given of 200 days of work as a CLR worker to one years regular service for the purposes of pension. While one would commend such effort by the State Government, it would be very unreasonable to deny this to the Appellant in view of the aforesaid facts. 23. What also weighs with us is that the Appellant is being deprived of the maximum pensionable service which would be permissible to him if his period of CLR service is recognised as qualifying service and there is no reason to deny the same to him when other CLR workers have got this benefit at the time of their absorption and subsequent regularisation as SLR workers and who would have, by virtue of joining at a later point of time, rendered less service. We also feel that Rule 13 of the Service Rules would possibly come to the aid of the rationale we seek to adopt as on absorption in the establishment, such persons are given the benefit of counting 50 per cent of their earlier work service prior to absorption for the purposes of pension.
### Response:
1
### Explanation:
. Leave was granted in this matter on 23.4.2010 but the matter has seen its fate of hearing only after a decade despite hearing being expedited when leave was granted!18. We are unable to accept the rationale and reasoning of the learned Single Judge and the Division Bench of the High Court in the given facts and circumstances of the case.19. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind, i.e., to facilitate a retired Government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities.20. While looking into the facts and circumstances of the case, there is no dispute about the time period spent by the Appellant as a CLR worker and his being at serial No. 2 for grant of pensionary benefits in the list of details of CLR workers had he continued as one. The Appellant was able to advance his career by going through a process of direct recruitment by the KPSC successfully. It is not a case of some unreasonable or improper benefit being extended to the Appellant but that he competed against others and was successfully recruited.21. It is also not in dispute that he was transferred to the Fisheries Department albeit at his own request and demitted office from there after earning promotion. To say that the Appellant would be denied the benefit of the period spent as CLR worker for his pensionary benefit would be to treat his case as inferior one to the case of other CLR workers, who never went through a system of recruitment for regularisation but were regularised in the Fisheries Department to provide better working conditions and monetary benefits to the employees. Can it really be said that a regularly recruited person like the Appellant should not get the benefit which the other people who were CLR workers would get, having spent more than 7 years in that capacity? The answer, in our view, is in the negative, as it would amount to whittling away long years of service as a CLR worker of 1678 days (7 years 4 months and 23 days).22. Had the Respondents not issued the G.O.s, no doubt the Appellant would have no claim. The claim of the Appellant arises from the G.O.s, which are beneficial efforts for the CLR workers to improve the conditions of working along with monetary benefits. The Appellant did work for the aforesaid long period of time as a CLR worker and should, thus, be entitled to the same on parity vis-à-vis other CLR workers. The Appellant was at serial No. 2 in the aforementioned list and would have been so absorbed when 29 posts were created. In fact, only 27 posts out of these were filled in. It is thus not even a case where no post existed or that it would affect anybody else, or that the Government would be compelled to create a post for the Appellant. In fact, in terms of the G.O. dated 21.8.2006 an equalisation has been given of 200 days of work as a CLR worker to one years regular service for the purposes of pension. While one would commend such effort by the State Government, it would be very unreasonable to deny this to the Appellant in view of the aforesaid facts.23. What also weighs with us is that the Appellant is being deprived of the maximum pensionable service which would be permissible to him if his period of CLR service is recognised as qualifying service and there is no reason to deny the same to him when other CLR workers have got this benefit at the time of their absorption and subsequent regularisation as SLR workers and who would have, by virtue of joining at a later point of time, rendered less service. We also feel that Rule 13 of the Service Rules would possibly come to the aid of the rationale we seek to adopt as on absorption in the establishment, such persons are given the benefit of counting 50 per cent of their earlier work service prior to absorption for the purposes of pension.
|
S.G. Mercantile Corporation P. Ltd Vs. Commissioner of Income Tax, Calcutta | expressed in the above passage regarding the rental income of an owner being treated as business income in case it is received as part of trading activity, because we are concerned in the instant case with an assessee who is lessee and not the owner of the property in question. The assessee in the cited case of Karanpura Development Co. Ltd. too was lessee of the coal fields. So far as such assesses are concerned, who as part of their essential trading activity take lease of property and sublet parts thereof with a view to make profits, the dictum laid down above, in our opinion, would hold good and the profits would have to be treated as business income.14. The appellant company, as stated earlier, was incorporated on January 25, 1955. The object for which the company was formed, inter alia, was to take on lease or otherwise acquire and to hold, improve, lease or otherwise dispose of, land, houses and other real and personal property and to deal with the same commercially. Within less than two weeks of its incorporation the appellant company took on lease the property in question and undertook to spend Rs. 5 lakhs for the purpose of remodelling and repairing the structure on the site. The appellant was also given the right to sublet the different portions. The appellants activity during the period of three years in question consisted of developing the demised property and letting out portions of the same as shops, stalls and ground spaces. All these facts point to the conclusion that the taking of the property on lease and subletting portions of the same was part of the business and trading activity of the appellant. The conclusion of the Tribunal that the activities of the appellant in taking lease and subletting the demised premises were undertaken with the object of doing business was warranted on the facts of the case. Likewise, the conclusion of the Tribunal that the appellant company in letting out the leasehold property was not acting as owner but as trader borne out by the material on record.15. Reference on behalf of the respondent has been made by Mr. Manchanda of the decisions of the House of Lords in Fry v. Salisbury House Estate Ltd. 1930 AC 432. In that case the assessee company which had been formed to acquire, manage and deal with a block of buildings, let out the rooms as unfurnished offices to tenants. The company provided a staff to operate the lifts and to act as porters and watch and protect the building. The company also provided certain services - such as heating and cleaning - for the tenants if required, at an additional charge. For four years the company was assessed under Schedule A to income-tax on the gross value of the building as appearing in the valuation list. The company admitted its liability to be assessed in respect of profits from the services supplied to the tenants under Sch. D, but the Crown claimed in making the assessment under Schedule D to include the rents of the offices as part of the receipts of trade, making allowance for tax assessment under Schedule A. It may be mentioned that the scheme of the English Income-tax Act is to provide for the taxation of specific properties under schedules appropriate to them and under a general Schedule D to provide for taxation of income not dealt with specifically. Schedule A provides for the taxation of income derived from property in land, B for income derived from occupation of land, C for income derived from Government securities and E for income from employment in the public service. The House of Lords held in the above cited case that the rents were profits arising from the ownership of land in respect of which the assessment under Schedule A was exhaustive and that they, therefore, could not be included in the assessment under Schedule D as trade receipts of the company. The assessee company, n the cited cases, was the owner of the Salisbury House, and the decision of the House of Lords rested on the view that Schedule a was exhaustive in respect of profits arising from ownership of land. The above decision is not of much help to the respondent because the assessee in the present case is not the owner but only a lessee of the property in question, and section 9, which is analogous to Schedule A of the English Act, applies to income from property consisting of buildings, or lands appurtenant thereto of which the assessee is the owner.16. The respondent can also have not much support from the decision of (1961) 42 ITR 49 (SC) (supra) because what was decided therein was that in the case of income from landed property by the owner company, the income would fall under the specific head described in section 9 and not under section 10 even though the company had been incorporated with the object of buying and developing landed property and promoting a market thereon. Section 9, as mentioned earlier, does not apply to the present case because the appellant is not the owner of the property in question. As such, there arises no question in this case of the exclusion of section 10 on the ground that section 9 is the specific head. In the instant case the revenue relies not upon the specific head given in section 9 but upon the residuary head given in section 12 of the Act. It is plain that the considerations which would weigh for applying section 9 on the ground of being a specific head would not hold good for invoking section 12 which can come into picture only if all the preceding heads of income, including business income as given in Section 10, are ruled out. Where, as in the present case, the income can appropriately fall under section 10 as being business income, no resort can be made to section 12 of the Act. | 1[ds]7. We have heard Mr. Chagla on behalf of the appellant and Mr. Manchanda on behalf of the respondent and are of the view that the judgment of the High Court cannot be sustained Section 6 of the Act enumerates the various heads of income, profits and gains chargeable to income-tax. Those heads are (i) Salaries: (ii) Interest on securities; (iii) Income from property (iv) Profits and gains of business, professions or vocation; (v) Income from other sources; and (vi) Capital gains.There is no finding in the present case that the appellant company is the owner of the property in question or any part thereof. As such, no reference was made to section 9 of the Act in the assessment proceedings. The learned counsel for both the parties agree, and in our opinion rightly, that the question of making the assessment against the appellant, in the circumstances, under section 9 of the Act does not arise. The stand of Mr. Chagla, on behalf of the appellant, is that the assessment against the appellant in respect of the income from the property in question should be made under section 10, while according to Mr. Manchanda, learned counsel for the respondent, the assessment should be under section 12 of the Act.The above observations have a direct bearing. It is not necessary for the purpose of this case to say anything beyond what has already been said while dealing with section 9 of the Act, about the view expressed in the above passage regarding the rental income of an owner being treated as business income in case it is received as part of trading activity, because we are concerned in the instant case with an assessee who is lessee and not the owner of the property in question. The assessee in the cited case of Karanpura Development Co. Ltd. too was lessee of the coal fields. So far as such assesses are concerned, who as part of their essential trading activity take lease of property and sublet parts thereof with a view to make profits, the dictum laid down above, in our opinion, would hold good and the profits would have to be treated as business income.14. The appellant company, as stated earlier, was incorporated on January 25, 1955. The object for which the company was formed, inter alia, was to take on lease or otherwise acquire and to hold, improve, lease or otherwise dispose of, land, houses and other real and personal property and to deal with the same commercially. Within less than two weeks of its incorporation the appellant company took on lease the property in question and undertook to spend Rs. 5 lakhs for the purpose of remodelling and repairing the structure on the site. The appellant was also given the right to sublet the different portions. The appellants activity during the period of three years in question consisted of developing the demised property and letting out portions of the same as shops, stalls and ground spaces. All these facts point to the conclusion that the taking of the property on lease and subletting portions of the same was part of the business and trading activity of the appellant. The conclusion of the Tribunal that the activities of the appellant in taking lease and subletting the demised premises were undertaken with the object of doing business was warranted on the facts of the case. Likewise, the conclusion of the Tribunal that the appellant company in letting out the leasehold property was not acting as owner but as trader borne out by the material on record.15. Reference on behalf of the respondent has been made by Mr. Manchanda of the decisions of the House of Lords inFry v. Salisbury House Estate Ltd. 1930 AC 432.In that case the assessee company which had been formed to acquire, manage and deal with a block of buildings, let out the rooms as unfurnished offices to tenants. The company provided a staff to operate the lifts and to act as porters and watch and protect the building. The company also provided certain services - such as heating and cleaning - for the tenants if required, at an additional charge. For four years the company was assessed under Schedule A to income-tax on the gross value of the building as appearing in the valuation list. The company admitted its liability to be assessed in respect of profits from the services supplied to the tenants under Sch. D, but the Crown claimed in making the assessment under Schedule D to include the rents of the offices as part of the receipts of trade, making allowance for tax assessment under Schedule A. It may be mentioned that the scheme of the English Income-tax Act is to provide for the taxation of specific properties under schedules appropriate to them and under a general Schedule D to provide for taxation of income not dealt with specifically. Schedule A provides for the taxation of income derived from property in land, B for income derived from occupation of land, C for income derived from Government securities and E for income from employment in the public service. The House of Lords held in the above cited case that the rents were profits arising from the ownership of land in respect of which the assessment under Schedule A was exhaustive and that they, therefore, could not be included in the assessment under Schedule D as trade receipts of the company. The assessee company, n the cited cases, was the owner of the Salisbury House, and the decision of the House of Lords rested on the view that Schedule a was exhaustive in respect of profits arising from ownership of land. The above decision is not of much help to the respondent because the assessee in the present case is not the owner but only a lessee of the property in question, and section 9, which is analogous to Schedule A of the English Act, applies to income from property consisting of buildings, or lands appurtenant thereto of which the assessee is the owner.16. The respondent can also have not much support from the decision of (1961) 42 ITR 49 (SC) (supra) because what was decided therein was that in the case of income from landed property by the owner company, the income would fall under the specific head described in section 9 and not under section 10 even though the company had been incorporated with the object of buying and developing landed property and promoting a market thereon. Section 9, as mentioned earlier, does not apply to the present case because the appellant is not the owner of the property in question. As such, there arises no question in this case of the exclusion of section 10 on the ground that section 9 is the specific head. In the instant case the revenue relies not upon the specific head given in section 9 but upon the residuary head given in section 12 of the Act. It is plain that the considerations which would weigh for applying section 9 on the ground of being a specific head would not hold good for invoking section 12 which can come into picture only if all the preceding heads of income, including business income as given in Section 10, are ruled out. Where, as in the present case, the income can appropriately fall under section 10 as being business income, no resort can be made to section 12 of the Act. | 1 | 4,641 | 1,359 | ### 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:
expressed in the above passage regarding the rental income of an owner being treated as business income in case it is received as part of trading activity, because we are concerned in the instant case with an assessee who is lessee and not the owner of the property in question. The assessee in the cited case of Karanpura Development Co. Ltd. too was lessee of the coal fields. So far as such assesses are concerned, who as part of their essential trading activity take lease of property and sublet parts thereof with a view to make profits, the dictum laid down above, in our opinion, would hold good and the profits would have to be treated as business income.14. The appellant company, as stated earlier, was incorporated on January 25, 1955. The object for which the company was formed, inter alia, was to take on lease or otherwise acquire and to hold, improve, lease or otherwise dispose of, land, houses and other real and personal property and to deal with the same commercially. Within less than two weeks of its incorporation the appellant company took on lease the property in question and undertook to spend Rs. 5 lakhs for the purpose of remodelling and repairing the structure on the site. The appellant was also given the right to sublet the different portions. The appellants activity during the period of three years in question consisted of developing the demised property and letting out portions of the same as shops, stalls and ground spaces. All these facts point to the conclusion that the taking of the property on lease and subletting portions of the same was part of the business and trading activity of the appellant. The conclusion of the Tribunal that the activities of the appellant in taking lease and subletting the demised premises were undertaken with the object of doing business was warranted on the facts of the case. Likewise, the conclusion of the Tribunal that the appellant company in letting out the leasehold property was not acting as owner but as trader borne out by the material on record.15. Reference on behalf of the respondent has been made by Mr. Manchanda of the decisions of the House of Lords in Fry v. Salisbury House Estate Ltd. 1930 AC 432. In that case the assessee company which had been formed to acquire, manage and deal with a block of buildings, let out the rooms as unfurnished offices to tenants. The company provided a staff to operate the lifts and to act as porters and watch and protect the building. The company also provided certain services - such as heating and cleaning - for the tenants if required, at an additional charge. For four years the company was assessed under Schedule A to income-tax on the gross value of the building as appearing in the valuation list. The company admitted its liability to be assessed in respect of profits from the services supplied to the tenants under Sch. D, but the Crown claimed in making the assessment under Schedule D to include the rents of the offices as part of the receipts of trade, making allowance for tax assessment under Schedule A. It may be mentioned that the scheme of the English Income-tax Act is to provide for the taxation of specific properties under schedules appropriate to them and under a general Schedule D to provide for taxation of income not dealt with specifically. Schedule A provides for the taxation of income derived from property in land, B for income derived from occupation of land, C for income derived from Government securities and E for income from employment in the public service. The House of Lords held in the above cited case that the rents were profits arising from the ownership of land in respect of which the assessment under Schedule A was exhaustive and that they, therefore, could not be included in the assessment under Schedule D as trade receipts of the company. The assessee company, n the cited cases, was the owner of the Salisbury House, and the decision of the House of Lords rested on the view that Schedule a was exhaustive in respect of profits arising from ownership of land. The above decision is not of much help to the respondent because the assessee in the present case is not the owner but only a lessee of the property in question, and section 9, which is analogous to Schedule A of the English Act, applies to income from property consisting of buildings, or lands appurtenant thereto of which the assessee is the owner.16. The respondent can also have not much support from the decision of (1961) 42 ITR 49 (SC) (supra) because what was decided therein was that in the case of income from landed property by the owner company, the income would fall under the specific head described in section 9 and not under section 10 even though the company had been incorporated with the object of buying and developing landed property and promoting a market thereon. Section 9, as mentioned earlier, does not apply to the present case because the appellant is not the owner of the property in question. As such, there arises no question in this case of the exclusion of section 10 on the ground that section 9 is the specific head. In the instant case the revenue relies not upon the specific head given in section 9 but upon the residuary head given in section 12 of the Act. It is plain that the considerations which would weigh for applying section 9 on the ground of being a specific head would not hold good for invoking section 12 which can come into picture only if all the preceding heads of income, including business income as given in Section 10, are ruled out. Where, as in the present case, the income can appropriately fall under section 10 as being business income, no resort can be made to section 12 of the Act.
### Response:
1
### Explanation:
the view expressed in the above passage regarding the rental income of an owner being treated as business income in case it is received as part of trading activity, because we are concerned in the instant case with an assessee who is lessee and not the owner of the property in question. The assessee in the cited case of Karanpura Development Co. Ltd. too was lessee of the coal fields. So far as such assesses are concerned, who as part of their essential trading activity take lease of property and sublet parts thereof with a view to make profits, the dictum laid down above, in our opinion, would hold good and the profits would have to be treated as business income.14. The appellant company, as stated earlier, was incorporated on January 25, 1955. The object for which the company was formed, inter alia, was to take on lease or otherwise acquire and to hold, improve, lease or otherwise dispose of, land, houses and other real and personal property and to deal with the same commercially. Within less than two weeks of its incorporation the appellant company took on lease the property in question and undertook to spend Rs. 5 lakhs for the purpose of remodelling and repairing the structure on the site. The appellant was also given the right to sublet the different portions. The appellants activity during the period of three years in question consisted of developing the demised property and letting out portions of the same as shops, stalls and ground spaces. All these facts point to the conclusion that the taking of the property on lease and subletting portions of the same was part of the business and trading activity of the appellant. The conclusion of the Tribunal that the activities of the appellant in taking lease and subletting the demised premises were undertaken with the object of doing business was warranted on the facts of the case. Likewise, the conclusion of the Tribunal that the appellant company in letting out the leasehold property was not acting as owner but as trader borne out by the material on record.15. Reference on behalf of the respondent has been made by Mr. Manchanda of the decisions of the House of Lords inFry v. Salisbury House Estate Ltd. 1930 AC 432.In that case the assessee company which had been formed to acquire, manage and deal with a block of buildings, let out the rooms as unfurnished offices to tenants. The company provided a staff to operate the lifts and to act as porters and watch and protect the building. The company also provided certain services - such as heating and cleaning - for the tenants if required, at an additional charge. For four years the company was assessed under Schedule A to income-tax on the gross value of the building as appearing in the valuation list. The company admitted its liability to be assessed in respect of profits from the services supplied to the tenants under Sch. D, but the Crown claimed in making the assessment under Schedule D to include the rents of the offices as part of the receipts of trade, making allowance for tax assessment under Schedule A. It may be mentioned that the scheme of the English Income-tax Act is to provide for the taxation of specific properties under schedules appropriate to them and under a general Schedule D to provide for taxation of income not dealt with specifically. Schedule A provides for the taxation of income derived from property in land, B for income derived from occupation of land, C for income derived from Government securities and E for income from employment in the public service. The House of Lords held in the above cited case that the rents were profits arising from the ownership of land in respect of which the assessment under Schedule A was exhaustive and that they, therefore, could not be included in the assessment under Schedule D as trade receipts of the company. The assessee company, n the cited cases, was the owner of the Salisbury House, and the decision of the House of Lords rested on the view that Schedule a was exhaustive in respect of profits arising from ownership of land. The above decision is not of much help to the respondent because the assessee in the present case is not the owner but only a lessee of the property in question, and section 9, which is analogous to Schedule A of the English Act, applies to income from property consisting of buildings, or lands appurtenant thereto of which the assessee is the owner.16. The respondent can also have not much support from the decision of (1961) 42 ITR 49 (SC) (supra) because what was decided therein was that in the case of income from landed property by the owner company, the income would fall under the specific head described in section 9 and not under section 10 even though the company had been incorporated with the object of buying and developing landed property and promoting a market thereon. Section 9, as mentioned earlier, does not apply to the present case because the appellant is not the owner of the property in question. As such, there arises no question in this case of the exclusion of section 10 on the ground that section 9 is the specific head. In the instant case the revenue relies not upon the specific head given in section 9 but upon the residuary head given in section 12 of the Act. It is plain that the considerations which would weigh for applying section 9 on the ground of being a specific head would not hold good for invoking section 12 which can come into picture only if all the preceding heads of income, including business income as given in Section 10, are ruled out. Where, as in the present case, the income can appropriately fall under section 10 as being business income, no resort can be made to section 12 of the Act.
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Dr. A. Lakshmanaswami Mudaliarand Others Vs. Life Insurance Corporation | Memorandum of Association: it does not set up any independent object, and confers no additional power. Acts incidental to or naturally conducive to the main object are those which have a reasonably proximate connection with the object, and some indirect or remote benefit which the Company may obtain by doing an act not otherwise within the object clause, will not be permitted by this extension. In Tomkinson v. South Eastern Railway, (1887) 35 Ch D. 675, it was held that a resolution passed by the shareholders of a Railway Company authorising the Directors to subscribe $1000 out of the Companys funds towards a donation to the Imperial Institute was ultra vires, even though the establishment of the Institute would benefit the Company by causing an increase in passenger traffic over their line. Kay J., announcing the judgement of the Court observed :"Now, what is proposed to be done here is this: the chairman of the Railway company, at a meeting of the company, proposed this resolution. That the directors be authorised, either by way of donation from the Company or by an appeal to the proprietors, as they may be advised- the resolution thus proposing two alternative modes - to subscribe the sum of $1000 to the Imperial Institute. I pause there. The Imperial Institute has no more connection with this railway company than the present exhibition of pictures at Burlington House, or the Grosvenor Gallery, or Madame Tussauds or any other institution in London that can be mentioned. The only ground for the suggestion that this company has the right to apply its funds, which it has been allowed to raise for specific purposes, to this purpose is, that the Imperial Institute, if it succeeds, will very probably greatly increase the traffic of this company. If that is a good reason, then, as I pointed out during the argument, any possible kind of exhibition which, by being established in London, would probably increase the traffic of a railway company by inducing, people to come up to see it, would be an object to which a railway company might subscribe part of its funds. I never heard of such a rule, and, as far as I understand the law, that clearly would not be a proper application of the moneys of a railway company. I cannot distinguish this case from that at all, though, of course, I do not mean to disparage the enormous importance of the Imperial Institute. It may be established for the highest possible objects of interest to this country; but still the only reason given to me why this railway company thinks it right to spend part of its funds in subscribing to it is this, that it will probably greatly increase the traffic of the company by inducing many people to travel up to visit this Institute. I cannot accept that as a reason for a moment". 15. The trust has numerous objects one of which is undoubtedly to promote art, science, industrial, technical or business knowledge including knowledge in banking, insurance, commerce and industry. There is no obligation upon the trustees to utilise the fund or any part thereof for promoting education in insurance and even if the trustees utilised the fund for that purpose, it was problematic whether any such persons trained in insurance business and practice were likely to take up employment with the Company. Thus the ultimate benefit which may result to the Company from the availability of personnel trained in insurance, if the trust utilises the fund for promoting education, insurance, practice and business, is too indirect, to be regarded as incidental or naturally conducive to the objects of the Company. We are, therefore, of the view that the resolution donating the funds of the Company was not within the objects mentioned in the Memorandum of Association and on that account it was ultra vires. 16. Where a Company does an act which is ultra vires, no legal relationship or effect ensues therefrom. Such an act is absolutely void and cannot be ratified even if all the shareholders agree. Re. Birkbeck Permanent Benefit Building Society, (1912) 2 Ch 183. The payment made pursuant to the resolution was therefore unauthorised and the trustees acquired no right to the amount paid by the Directors to the trust. 17. The only question which remains to be considered is whether the appellants were personally liable to refund the amount paid to them. Appellants 2 and 4 were at the material time Directors of the Company and they took part in the meeting held under the Chairmanship of the fourth appellant in which the resolution, which we have held ultra vires, was passed. As office bearers of the Company responsible for passing the resolution ultra vires, the Company, they will be personally liable to make good the amount belonging to the Company which was unlawfully disbursed in pursuance of the resolution. Again by S. 15 of the Life Insurance Corporation Act, 1956 the Life Insurance Corporation is entitled to demand that any amount paid over to any person without consideration, and not reasonably necessary for the purposes of the controlled business of the insurer be ordered to be refunded, and by sub-sec. (2) authority is conferred upon the Tribunal to make such order against any of the parties to the application as it thinks just having regard to the extent to which those parties were respectively responsible for transaction or benefited from it and all the circumstances of the case. The trustees as representing the trust have benefited from the payment. The amount was, it is common ground, not disposed of before the Corporation demanded it from the appellants, and if with notice of the infirmity in the resolution, the trustees proceeded to deal with the fund to which the trust was not legitimately entitled, in our judgment, it would be open to the Tribunal to direct the trustees personally to repay the amount received by them and to which they were not lawfully entitled. | 0[ds]5.The right of the Corporation to demand payment of the amount if the resolution sanctioning payment was unauthorised, cannot be challenged in view of the express provision in S. 15 of the Life Insurance Corporation Act. Under S. 15(1)(a) ofthe Life Insurance Corporation Act, 195610. The argument of counsel for the appellants that the meeting held on July 15, 1955 was a meeting of the share-holders, and when the share-holders resolved to donate an amount of Rs. 2 lakhs out of the Share-holders Dividend Account they must be deemed to have resolved upon the destination of a part of the Fund to which they were entitled, has therefore no force. The meeting was a meeting of the Company specifically convened for considering various resolutions one of which was to make a donation of Rs. 2 lakhs out of the Share-holders Dividend Account. Dividend is by the Articles undoubtedly payable out of the Share-holders Dividend Account, but until a resolution is passed by the Company in a general meeting, no part of the Account belongs to the share-holders as dividend. It is common ground that no resolution was passed declaring at the amount of Rs. 2 lakhs be declared as dividend and paid over to the share-holders16. Where a Company does an act which is ultra vires, no legal relationship or effect ensues therefrom. Such an act is absolutely void and cannot be ratified even if all the shareholders agree.Re. Birkbeck Permanent Benefit Building Society, (1912) 2 Ch. The payment made pursuant to the resolution was therefore unauthorised and the trustees acquired no right to the amount paid by the Directors to the trustAppellants 2 and 4 were at the material time Directors of the Company and they took part in the meeting held under the Chairmanship of the fourth appellant in which the resolution, which we have held ultra vires, was passed. As office bearers of the Company responsible for passing the resolution ultra vires, the Company, they will be personally liable to make good the amount belonging to the Company which was unlawfully disbursed in pursuance of the resolution. Again by S. 15 ofthe Life Insurance Corporation Act, 1956the Life Insurance Corporation is entitled to demand that any amount paid over to any person without consideration, and not reasonably necessary for the purposes of the controlled business of the insurer be ordered to be refunded, and by sub-sec. (2) authority is conferred upon the Tribunal to make such order against any of the parties to the application as it thinks just having regard to the extent to which those parties were respectively responsible for transaction or benefited from it and all the circumstances of the case. The trustees as representing the trust have benefited from the payment. The amount was, it is common ground, not disposed of before the Corporation demanded it from the appellants, and if with notice of the infirmity in the resolution, the trustees proceeded to deal with the fund to which the trust was not legitimately entitled, in our judgment, it would be open to the Tribunal to direct the trustees personally to repay the amount received by them and to which they were not lawfully entitled. | 0 | 5,670 | 588 | ### 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:
Memorandum of Association: it does not set up any independent object, and confers no additional power. Acts incidental to or naturally conducive to the main object are those which have a reasonably proximate connection with the object, and some indirect or remote benefit which the Company may obtain by doing an act not otherwise within the object clause, will not be permitted by this extension. In Tomkinson v. South Eastern Railway, (1887) 35 Ch D. 675, it was held that a resolution passed by the shareholders of a Railway Company authorising the Directors to subscribe $1000 out of the Companys funds towards a donation to the Imperial Institute was ultra vires, even though the establishment of the Institute would benefit the Company by causing an increase in passenger traffic over their line. Kay J., announcing the judgement of the Court observed :"Now, what is proposed to be done here is this: the chairman of the Railway company, at a meeting of the company, proposed this resolution. That the directors be authorised, either by way of donation from the Company or by an appeal to the proprietors, as they may be advised- the resolution thus proposing two alternative modes - to subscribe the sum of $1000 to the Imperial Institute. I pause there. The Imperial Institute has no more connection with this railway company than the present exhibition of pictures at Burlington House, or the Grosvenor Gallery, or Madame Tussauds or any other institution in London that can be mentioned. The only ground for the suggestion that this company has the right to apply its funds, which it has been allowed to raise for specific purposes, to this purpose is, that the Imperial Institute, if it succeeds, will very probably greatly increase the traffic of this company. If that is a good reason, then, as I pointed out during the argument, any possible kind of exhibition which, by being established in London, would probably increase the traffic of a railway company by inducing, people to come up to see it, would be an object to which a railway company might subscribe part of its funds. I never heard of such a rule, and, as far as I understand the law, that clearly would not be a proper application of the moneys of a railway company. I cannot distinguish this case from that at all, though, of course, I do not mean to disparage the enormous importance of the Imperial Institute. It may be established for the highest possible objects of interest to this country; but still the only reason given to me why this railway company thinks it right to spend part of its funds in subscribing to it is this, that it will probably greatly increase the traffic of the company by inducing many people to travel up to visit this Institute. I cannot accept that as a reason for a moment". 15. The trust has numerous objects one of which is undoubtedly to promote art, science, industrial, technical or business knowledge including knowledge in banking, insurance, commerce and industry. There is no obligation upon the trustees to utilise the fund or any part thereof for promoting education in insurance and even if the trustees utilised the fund for that purpose, it was problematic whether any such persons trained in insurance business and practice were likely to take up employment with the Company. Thus the ultimate benefit which may result to the Company from the availability of personnel trained in insurance, if the trust utilises the fund for promoting education, insurance, practice and business, is too indirect, to be regarded as incidental or naturally conducive to the objects of the Company. We are, therefore, of the view that the resolution donating the funds of the Company was not within the objects mentioned in the Memorandum of Association and on that account it was ultra vires. 16. Where a Company does an act which is ultra vires, no legal relationship or effect ensues therefrom. Such an act is absolutely void and cannot be ratified even if all the shareholders agree. Re. Birkbeck Permanent Benefit Building Society, (1912) 2 Ch 183. The payment made pursuant to the resolution was therefore unauthorised and the trustees acquired no right to the amount paid by the Directors to the trust. 17. The only question which remains to be considered is whether the appellants were personally liable to refund the amount paid to them. Appellants 2 and 4 were at the material time Directors of the Company and they took part in the meeting held under the Chairmanship of the fourth appellant in which the resolution, which we have held ultra vires, was passed. As office bearers of the Company responsible for passing the resolution ultra vires, the Company, they will be personally liable to make good the amount belonging to the Company which was unlawfully disbursed in pursuance of the resolution. Again by S. 15 of the Life Insurance Corporation Act, 1956 the Life Insurance Corporation is entitled to demand that any amount paid over to any person without consideration, and not reasonably necessary for the purposes of the controlled business of the insurer be ordered to be refunded, and by sub-sec. (2) authority is conferred upon the Tribunal to make such order against any of the parties to the application as it thinks just having regard to the extent to which those parties were respectively responsible for transaction or benefited from it and all the circumstances of the case. The trustees as representing the trust have benefited from the payment. The amount was, it is common ground, not disposed of before the Corporation demanded it from the appellants, and if with notice of the infirmity in the resolution, the trustees proceeded to deal with the fund to which the trust was not legitimately entitled, in our judgment, it would be open to the Tribunal to direct the trustees personally to repay the amount received by them and to which they were not lawfully entitled.
### Response:
0
### Explanation:
5.The right of the Corporation to demand payment of the amount if the resolution sanctioning payment was unauthorised, cannot be challenged in view of the express provision in S. 15 of the Life Insurance Corporation Act. Under S. 15(1)(a) ofthe Life Insurance Corporation Act, 195610. The argument of counsel for the appellants that the meeting held on July 15, 1955 was a meeting of the share-holders, and when the share-holders resolved to donate an amount of Rs. 2 lakhs out of the Share-holders Dividend Account they must be deemed to have resolved upon the destination of a part of the Fund to which they were entitled, has therefore no force. The meeting was a meeting of the Company specifically convened for considering various resolutions one of which was to make a donation of Rs. 2 lakhs out of the Share-holders Dividend Account. Dividend is by the Articles undoubtedly payable out of the Share-holders Dividend Account, but until a resolution is passed by the Company in a general meeting, no part of the Account belongs to the share-holders as dividend. It is common ground that no resolution was passed declaring at the amount of Rs. 2 lakhs be declared as dividend and paid over to the share-holders16. Where a Company does an act which is ultra vires, no legal relationship or effect ensues therefrom. Such an act is absolutely void and cannot be ratified even if all the shareholders agree.Re. Birkbeck Permanent Benefit Building Society, (1912) 2 Ch. The payment made pursuant to the resolution was therefore unauthorised and the trustees acquired no right to the amount paid by the Directors to the trustAppellants 2 and 4 were at the material time Directors of the Company and they took part in the meeting held under the Chairmanship of the fourth appellant in which the resolution, which we have held ultra vires, was passed. As office bearers of the Company responsible for passing the resolution ultra vires, the Company, they will be personally liable to make good the amount belonging to the Company which was unlawfully disbursed in pursuance of the resolution. Again by S. 15 ofthe Life Insurance Corporation Act, 1956the Life Insurance Corporation is entitled to demand that any amount paid over to any person without consideration, and not reasonably necessary for the purposes of the controlled business of the insurer be ordered to be refunded, and by sub-sec. (2) authority is conferred upon the Tribunal to make such order against any of the parties to the application as it thinks just having regard to the extent to which those parties were respectively responsible for transaction or benefited from it and all the circumstances of the case. The trustees as representing the trust have benefited from the payment. The amount was, it is common ground, not disposed of before the Corporation demanded it from the appellants, and if with notice of the infirmity in the resolution, the trustees proceeded to deal with the fund to which the trust was not legitimately entitled, in our judgment, it would be open to the Tribunal to direct the trustees personally to repay the amount received by them and to which they were not lawfully entitled.
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Jotun India Private Limited Vs. Psl Limited | omitted by the Companies (Second Amendment) Act, 2002 and evidently the High Court has overlooked this amendment. As a result in our opinion the High Court has no power to transfer the execution petition to the Debts Recovery Tribunal. At any event as held in Allahabad Bank v. Canara Bank, Section 446 has no application once the RDB Act applies because Section 34 expressly gives overriding effect to the provisions of the RDB Act. Also, the RDB Act is a special law and hence will prevail over the general law in the Companies Act as held in Allahabad Bank v. Canara Bank.(c) In the case of ICICI Bank Ltd. vs. SIDCO Leathers Ltd. And ors. [(2006) 10 SCC 452] , the Apex Court in paras 46 and 47 observed as under:46. The provisions of the Companies Act may be a special statute but if the special statute does not contain any specific provision dealing with the contractual and other statutory rights between different kinds of the secured creditors, the specific provisions contained in the general statute shall prevail.47. In Maru Ram v. Union of India this Court distinguished between a specific provision and a special law holding that a specific provision dealing with a particular situation would override even a special law, which is inconsistent therewith.(d) In the case of Gaziabad Zila Sahakari Bank Ltd. vs. Addl. Labour Commissioner and ors. [(2007) 11 SCC 756] , the Apex Court in para 63 observed as under :63. Also if we refer to the general principles of Statutory Interpretation as discussed by G.P.Singh, in his treatise on Principles of Statutory Interpretation, we can observe that, a prior general Act may be affected by a subsequent particular or special Act if the subject-matter of the particular Act prior to its enforcement was being governed by the general provisions of the earlier Act. In such a case the operation of the particular Act may have the effect of partially repealing the general Act, or curtailing its operation, or adding conditions to its operation for the particular cases. The distinction may be important at times for determining the applicability of those provisions of the General Clauses Act, 1897, (Interpretation Act, 1889 of U.K. now Interpretation Act, 1978) which apply only in case of repeals.(e) In the case of Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and anr. [(2014) 8 SCC 319] , the Apex Court observed in paras 31, 34 and 36 as under :31. ...........Thereby implying that though there exists an overlap between the general and special provision, the general provision would also be sustained and the two would co-exist.34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. (Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Eastern Book Company; N. S. Bindras Interpretation of Statutes, 8th Ed., The Law Book Company; Craies on Statute Law, S.G.G.Edkar, 7th Ed., Sweet & Maxwell; Justice G.P. Singh, Principles of Statutory Interpretation, 13th Ed., LexisNexis; Craies on Legislation, Daniel Greenberg, 9th Ed., Thomson Sweet & Maxwell, Maxwell on Interpretation of Statutes, 12th Ed., Lexis Nexis)36. The maxim generalia specialibus non derogant is dealt with in Volume 44 (1) of the 4th ed. of Halsburys Laws of England at Para 1300 as follows:The principle descends clearly from decisions of the House of Lords in Seward v. Vera Cruz and the Privy Council in Barker v Edger, and has been affirmed and put into effect on many occasions.... If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliaments true intention was to establish thereby a rule of universal application, then the special provision must give way to the general.37. We have also perused the report of the Insolvency Law Committee published by the Ministry of Corporate Affairs, Government of India, which was placed before us.38. In view of the afore-stated reasoning and the case laws cited, we are of the considered opinion that the Company Court while dealing with the winding up petitions (saved petitions) shall have no jurisdiction to stay the proceedings before the NCLT in respect of revival or resolution issue. We may further state that in case the forum under the IBC, 2016 i.e. NCLT fails to revive or successfully implement the resolution plan, then the Company Judge seized with the winding up petitions (saved petitions) would deal with the petition in accordance with law. We are of the view that allowing both the forums i.e. Company Court and the NCLT to go ahead with the liquidation proceedings/winding up proceedings simultaneously would not serve any purpose. There is likelihood of creation of confusion and complexity. To harmonize this likely situation, we observe that the Company Judge, in saved petitions, would exercise jurisdiction in case revival efforts by NCLT fails.39. We find that the learned Single Judge approached the issue in its proper perspective and harmoniously considered various provisions of the relevant enactments keeping in view the object behind the special statutes. We do not find any error or perversity in the view adopted by the learned Single Judge. | 0[ds]29. A comparative analysis of provisions of SICA clearly indicates that under the provisions of Section 22 of SICA once the proceeding was initiated, the other proceedings pending before the different forums were suspended. In fact, there was an injunction operating in case the jurisdiction under SICA was invoked by a concerned party. The learned counsel for the appellant made efforts to persuade us that the provisions of SICA and IBC, 2016 are notlegislations to make it applicable to the saved petitions under the Companies Act. In our considered view, it would not be appropriate to observe that by enacting IBC, 2016 the legislator intended to create two classes of winding up petitions, one pending before the Company Court (saved petitions) and another transferred to the forum i.e. NCLT which would be governed by the provisions of IBC, 2016. Such a distinction would go contrary to the object and purpose of enacting IBC, 2016 by the Parliament. Due regard must be given to the legislators intent and the Rules and Notifications issued from time to time in this behalf. It would not even be appropriate to accept a proposition that Company Judge would have jurisdiction to stay the proceedings before the NCLT in connection with the revival or resolution proceedings while exercising jurisdiction under the saved petitions. In case the forum under the IBC, 2016 fails to revive the company or to successfully complete the resolution plan, then whether the Company Court and the NCLT would go ahead simultaneously in liquidating the company and complete the winding up proceedings. This situation needs to be harmonized and balanced.There could be a situation where there are two special statutes operating in the field or a special statute and statute generally governing the field, which may be referred to as general law. Even if it is considered that in respect of subject matter there are two special statutes operating, one Companies Act and other IBC, 2016, we need to have a purposive approach and harmonious interpretation to the provisions of law. A harmonious and balanced approach is required to be adopted for the purpose of interpreting the IBC, 2016 and the jurisdictional limitations and areas operating in respect of saved petitions before the Company Court.The purpose of the IBC, 2016 and the NCLT hearing petitions is primarily to revive the company by having a resolution method. Whereas in the winding up petition pending before the Company Court, ultimate approach and object is to wound up the company. Even under the IBC, if efforts to revive the company fails, then the liquidation proceedings get initiated under Chapter III of the IBC, 2016. Taking into consideration the statutory scheme of the IBC, 2016, we are of the view that NCLT constitutes a separate and distinct forum and it cannot be attributed to be a subordinate forum to the Company Court as constituted under the Companies Act.34. Section 63 of the IBC, 2016 injuncts a Civil Court or authority to entertain any suit or proceedings in respect of any matter on which NCLT has jurisdiction under the Code. Section 231 refers to bar of jurisdiction. It states that no Civil Court shall have jurisdiction in respect of any matter in which the Adjudicating Authority is empowered under the Code to pass orders and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any orders passed by such Adjudicating Authority under the Code. These provisions are manifestly clear to indicate that a special statute has conferred jurisdiction on the NCLT. One of the basic purpose of the IBC, 2016 is to make a sincere effort to revive the company. Whereas in the winding up petition pending before the Company Court the initiation and ultimate culmination of the proceeding is to wound up the company.35. The general legal principles of interpretation of statute state that the general law should yield to the special law. In the context of the present statute i.e. IBC 2016, we are of the view that the Companies Act 1956 could be treated as general law and IBC, 2016 to be a special statute to the extent of the provisions relating to revival or resolution of the company as per provision under Chapter II of the IBC. Even if the Companies Act and the IBC 2016 are considered as special statutes operating in their respective field, we are of the view that the IBC 2016 being later enactment and in view of the statement and objects and the purpose for which it was enacted, the provisions relating to revival/resolution of the company incorporated under Chapter II will have to be given primacy over the provisions of the winding up proceeding pending before the Company Courts which are referred as saved petitions.In view of thereasoning and the case laws cited, we are of the considered opinion that the Company Court while dealing with the winding up petitions (saved petitions) shall have no jurisdiction to stay the proceedings before the NCLT in respect of revival or resolution issue. We may further state that in case the forum under the IBC, 2016 i.e. NCLT fails to revive or successfully implement the resolution plan, then the Company Judge seized with the winding up petitions (saved petitions) would deal with the petition in accordance with law. We are of the view that allowing both the forums i.e. Company Court and the NCLT to go ahead with the liquidation proceedings/winding up proceedings simultaneously would not serve any purpose. There is likelihood of creation of confusion and complexity. To harmonize this likely situation, we observe that the Company Judge, in saved petitions, would exercise jurisdiction in case revival efforts by NCLT fails.39. We find that the learned Single Judge approached the issue in its proper perspective and harmoniously considered various provisions of the relevant enactments keeping in view the object behind the special statutes. We do not find any error or perversity in the view adopted by the learned Single Judge. | 0 | 15,600 | 1,084 | ### 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:
omitted by the Companies (Second Amendment) Act, 2002 and evidently the High Court has overlooked this amendment. As a result in our opinion the High Court has no power to transfer the execution petition to the Debts Recovery Tribunal. At any event as held in Allahabad Bank v. Canara Bank, Section 446 has no application once the RDB Act applies because Section 34 expressly gives overriding effect to the provisions of the RDB Act. Also, the RDB Act is a special law and hence will prevail over the general law in the Companies Act as held in Allahabad Bank v. Canara Bank.(c) In the case of ICICI Bank Ltd. vs. SIDCO Leathers Ltd. And ors. [(2006) 10 SCC 452] , the Apex Court in paras 46 and 47 observed as under:46. The provisions of the Companies Act may be a special statute but if the special statute does not contain any specific provision dealing with the contractual and other statutory rights between different kinds of the secured creditors, the specific provisions contained in the general statute shall prevail.47. In Maru Ram v. Union of India this Court distinguished between a specific provision and a special law holding that a specific provision dealing with a particular situation would override even a special law, which is inconsistent therewith.(d) In the case of Gaziabad Zila Sahakari Bank Ltd. vs. Addl. Labour Commissioner and ors. [(2007) 11 SCC 756] , the Apex Court in para 63 observed as under :63. Also if we refer to the general principles of Statutory Interpretation as discussed by G.P.Singh, in his treatise on Principles of Statutory Interpretation, we can observe that, a prior general Act may be affected by a subsequent particular or special Act if the subject-matter of the particular Act prior to its enforcement was being governed by the general provisions of the earlier Act. In such a case the operation of the particular Act may have the effect of partially repealing the general Act, or curtailing its operation, or adding conditions to its operation for the particular cases. The distinction may be important at times for determining the applicability of those provisions of the General Clauses Act, 1897, (Interpretation Act, 1889 of U.K. now Interpretation Act, 1978) which apply only in case of repeals.(e) In the case of Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and anr. [(2014) 8 SCC 319] , the Apex Court observed in paras 31, 34 and 36 as under :31. ...........Thereby implying that though there exists an overlap between the general and special provision, the general provision would also be sustained and the two would co-exist.34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. (Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Eastern Book Company; N. S. Bindras Interpretation of Statutes, 8th Ed., The Law Book Company; Craies on Statute Law, S.G.G.Edkar, 7th Ed., Sweet & Maxwell; Justice G.P. Singh, Principles of Statutory Interpretation, 13th Ed., LexisNexis; Craies on Legislation, Daniel Greenberg, 9th Ed., Thomson Sweet & Maxwell, Maxwell on Interpretation of Statutes, 12th Ed., Lexis Nexis)36. The maxim generalia specialibus non derogant is dealt with in Volume 44 (1) of the 4th ed. of Halsburys Laws of England at Para 1300 as follows:The principle descends clearly from decisions of the House of Lords in Seward v. Vera Cruz and the Privy Council in Barker v Edger, and has been affirmed and put into effect on many occasions.... If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliaments true intention was to establish thereby a rule of universal application, then the special provision must give way to the general.37. We have also perused the report of the Insolvency Law Committee published by the Ministry of Corporate Affairs, Government of India, which was placed before us.38. In view of the afore-stated reasoning and the case laws cited, we are of the considered opinion that the Company Court while dealing with the winding up petitions (saved petitions) shall have no jurisdiction to stay the proceedings before the NCLT in respect of revival or resolution issue. We may further state that in case the forum under the IBC, 2016 i.e. NCLT fails to revive or successfully implement the resolution plan, then the Company Judge seized with the winding up petitions (saved petitions) would deal with the petition in accordance with law. We are of the view that allowing both the forums i.e. Company Court and the NCLT to go ahead with the liquidation proceedings/winding up proceedings simultaneously would not serve any purpose. There is likelihood of creation of confusion and complexity. To harmonize this likely situation, we observe that the Company Judge, in saved petitions, would exercise jurisdiction in case revival efforts by NCLT fails.39. We find that the learned Single Judge approached the issue in its proper perspective and harmoniously considered various provisions of the relevant enactments keeping in view the object behind the special statutes. We do not find any error or perversity in the view adopted by the learned Single Judge.
### Response:
0
### Explanation:
provisions of SICA clearly indicates that under the provisions of Section 22 of SICA once the proceeding was initiated, the other proceedings pending before the different forums were suspended. In fact, there was an injunction operating in case the jurisdiction under SICA was invoked by a concerned party. The learned counsel for the appellant made efforts to persuade us that the provisions of SICA and IBC, 2016 are notlegislations to make it applicable to the saved petitions under the Companies Act. In our considered view, it would not be appropriate to observe that by enacting IBC, 2016 the legislator intended to create two classes of winding up petitions, one pending before the Company Court (saved petitions) and another transferred to the forum i.e. NCLT which would be governed by the provisions of IBC, 2016. Such a distinction would go contrary to the object and purpose of enacting IBC, 2016 by the Parliament. Due regard must be given to the legislators intent and the Rules and Notifications issued from time to time in this behalf. It would not even be appropriate to accept a proposition that Company Judge would have jurisdiction to stay the proceedings before the NCLT in connection with the revival or resolution proceedings while exercising jurisdiction under the saved petitions. In case the forum under the IBC, 2016 fails to revive the company or to successfully complete the resolution plan, then whether the Company Court and the NCLT would go ahead simultaneously in liquidating the company and complete the winding up proceedings. This situation needs to be harmonized and balanced.There could be a situation where there are two special statutes operating in the field or a special statute and statute generally governing the field, which may be referred to as general law. Even if it is considered that in respect of subject matter there are two special statutes operating, one Companies Act and other IBC, 2016, we need to have a purposive approach and harmonious interpretation to the provisions of law. A harmonious and balanced approach is required to be adopted for the purpose of interpreting the IBC, 2016 and the jurisdictional limitations and areas operating in respect of saved petitions before the Company Court.The purpose of the IBC, 2016 and the NCLT hearing petitions is primarily to revive the company by having a resolution method. Whereas in the winding up petition pending before the Company Court, ultimate approach and object is to wound up the company. Even under the IBC, if efforts to revive the company fails, then the liquidation proceedings get initiated under Chapter III of the IBC, 2016. Taking into consideration the statutory scheme of the IBC, 2016, we are of the view that NCLT constitutes a separate and distinct forum and it cannot be attributed to be a subordinate forum to the Company Court as constituted under the Companies Act.34. Section 63 of the IBC, 2016 injuncts a Civil Court or authority to entertain any suit or proceedings in respect of any matter on which NCLT has jurisdiction under the Code. Section 231 refers to bar of jurisdiction. It states that no Civil Court shall have jurisdiction in respect of any matter in which the Adjudicating Authority is empowered under the Code to pass orders and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any orders passed by such Adjudicating Authority under the Code. These provisions are manifestly clear to indicate that a special statute has conferred jurisdiction on the NCLT. One of the basic purpose of the IBC, 2016 is to make a sincere effort to revive the company. Whereas in the winding up petition pending before the Company Court the initiation and ultimate culmination of the proceeding is to wound up the company.35. The general legal principles of interpretation of statute state that the general law should yield to the special law. In the context of the present statute i.e. IBC 2016, we are of the view that the Companies Act 1956 could be treated as general law and IBC, 2016 to be a special statute to the extent of the provisions relating to revival or resolution of the company as per provision under Chapter II of the IBC. Even if the Companies Act and the IBC 2016 are considered as special statutes operating in their respective field, we are of the view that the IBC 2016 being later enactment and in view of the statement and objects and the purpose for which it was enacted, the provisions relating to revival/resolution of the company incorporated under Chapter II will have to be given primacy over the provisions of the winding up proceeding pending before the Company Courts which are referred as saved petitions.In view of thereasoning and the case laws cited, we are of the considered opinion that the Company Court while dealing with the winding up petitions (saved petitions) shall have no jurisdiction to stay the proceedings before the NCLT in respect of revival or resolution issue. We may further state that in case the forum under the IBC, 2016 i.e. NCLT fails to revive or successfully implement the resolution plan, then the Company Judge seized with the winding up petitions (saved petitions) would deal with the petition in accordance with law. We are of the view that allowing both the forums i.e. Company Court and the NCLT to go ahead with the liquidation proceedings/winding up proceedings simultaneously would not serve any purpose. There is likelihood of creation of confusion and complexity. To harmonize this likely situation, we observe that the Company Judge, in saved petitions, would exercise jurisdiction in case revival efforts by NCLT fails.39. We find that the learned Single Judge approached the issue in its proper perspective and harmoniously considered various provisions of the relevant enactments keeping in view the object behind the special statutes. We do not find any error or perversity in the view adopted by the learned Single Judge.
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S.V. Chandra Pandian & Others Vs. S. V. Sivalinga Nadar & Others | inclusive of immovable properties, is movable property and the assignment of the share on dissolution of the partnership did not require registration under Section 17 of the Registration act. The decision, therefore, turned on the interpretation of the award in regard to the nature of the assignment made in favour of the appellant. So far as the second a case is concerned, we think it has no bearing since that was not a case of assignment of partnership property under a dissolution deed. In that case, the dispute was between two brothers in 2-1/2 kills of land situate in Panipat, Haryana. The said land stood in the name of one brother - the appellant. The respondent contended that he was a benamidar and that was the dispute which was referred to arbitration. The Arbitrator made his award and applied to the Court for making it the rule of the Court. Objections were filed by the appellant raising various contentions. The award declared that half share of the ownership of the appellant shall "be now owned by Shri. Ram Lal, the respondent in addition to his half share owned in those lands". Therefore, the award transferred half share of the appellant to the respondent and since the value thereof exceeded Rs. 100, it was held that it required registration. It is, therefore, obvious that this case has no bearing on the point in issue herein 18. In the present case, the Division Bench of the High Court concluded that the award required registration because of an erroneous reading of the award. The Division Bench after extensively reproducing from the Schedules A to F of the award proceeded to state in paragraph 39 that the allotments are exclusive to the brothers and they get independent rights of their own under the award in the properties allotted under the schedule and hence it is not a case purely of assignment of the share in the partnership but it confers exclusive rights to the allottees. On this line of reasoning it concluded that the award required registration. The court next pointed out in paragraph 42 of the judgment that the award also partitions certain immovable properties jointly owned by the disputants. In this connection it has placed reliance on paragraph 10(c) of the award which reads as under "(c). Other Lands and Buildings and House properties belonging to S. V. Sivalinga Nadar & Bros., standing in the name of the firms and/or otherwise jointly owned by the disputants. These have been allotted by us to one or other or jointly to some of the disputants as per schedules annexed hereto." The reasons which weighted with the Division Bench of the High Court ion concluding that the award requires registration appear to be based on an erroneous reading of the award. We have carefully read the award and it is manifest therefrom that the Arbitrators had confined themselves to the properties belonging to the two firms in question and scrupulously avoided dealing with the properties not belonging to the firm. This is manifest from paragraph 15 to 18 of the award. However, properties standing in the names of disputants, individually or jointly, and others as benamidars but belonging to the firm also came to be included in the distribution of the surplus partnership asset under the award. That is the purport of paragraph 10(c) extracted hereinabove. When on settlement of accounts the residue is required to be divided amount the partners in proportions in which they entitled to share profits under sub-clause (iv) of clause (b) of Section 48, the properties will have to be allocated to the partners as falling to their share on the distribution of the residue and, therefore, the Arbitrators indicated in the schedules the properties falling to the share of each brother. Mere statements that a certain property will now exclusively belong to one partner or the other, as the case may be, cannot change the character of the document or the nature of assignment because that would in any case be the affect on the distribution of the residue. The property falling to the share of the partner on the distribution of the residue would natural then belong to him exclusively but so long as in the eye of law it is money and not immovable property there is no question of registration under Section 17 of the Registration Act. Besides, as stated earlier, even if one looks at the award as allocating certain immovable property since there is no transfer, no partition or extinguishment of any right therein there is no question of application of Section 17(1) of the Registration act. The reference to other land and buildings and house properties jointly owned by the disputants in clause (c) of paragraph 10 of the award merely indicates that certain properties belonging to the firm stood in the names of individual partners or in their joint names but they belonged to the firm and, therefore, they were taken into account for the purpose of settlement of accounts under Section 48 of the Partnership Act and distributed on the determination of the residue. The award read as a whole makes it absolutely clear that the Arbitrators had confined themselves to the properties belonging to the two firms and had scrupulously avoid other properties in regard to which they did not reach the conclusion that they belonged to the firm. On a correct reading of the award, we are satisfied that the award seeks to distribute the residue after settlement of accounts on dissolution. While distributing the residue the Arbitrators allocated the properties to the partners and showed them in the scheduled them in the schedules appended to the award. We are, therefore, of the opinion that on a true reading of the award as a whole, there is no doubt that it essentially deals with the distribution of the surplus properties belonging to the dissolved firms. The award, therefore, did not require registration under Section 17(1) of the Registration Act | 1[ds]18. In the present case, the Division Bench of the High Court concluded that the award required registration because of an erroneous reading of the award. The Division Bench after extensively reproducing from the Schedules A to F of the award proceeded to state in paragraph 39 that the allotments are exclusive to the brothers and they get independent rights of their own under the award in the properties allotted under the schedule and hence it is not a case purely of assignment of the share in the partnership but it confers exclusive rights to the allottees. On this line of reasoning it concluded that the award required registration. The court next pointed out in paragraph 42 of the judgment that the award also partitions certain immovable properties jointly owned by the disputants. In this connection it has placed reliance on paragraph 10(c) of the award which reads asOther Lands and Buildings and House properties belonging to S. V. Sivalinga Nadar & Bros., standing in the name of the firms and/or otherwise jointly owned by the disputants. These have been allotted by us to one or other or jointly to some of the disputants as per schedules annexedreasons which weighted with the Division Bench of the High Court ion concluding that the award requires registration appear to be based on an erroneous reading of the award. We have carefully read the award and it is manifest therefrom that the Arbitrators had confined themselves to the properties belonging to the two firms in question and scrupulously avoided dealing with the properties not belonging to the firm. This is manifest from paragraph 15 to 18 of the award. However, properties standing in the names of disputants, individually or jointly, and others as benamidars but belonging to the firm also came to be included in the distribution of the surplus partnership asset under the award. That is the purport of paragraph 10(c) extracted hereinabove. When on settlement of accounts the residue is required to be divided amount the partners in proportions in which they entitled to share profits under sub-clause (iv) of clause (b) of Section 48, the properties will have to be allocated to the partners as falling to their share on the distribution of the residue and, therefore, the Arbitrators indicated in the schedules the properties falling to the share of each brother. Mere statements that a certain property will now exclusively belong to one partner or the other, as the case may be, cannot change the character of the document or the nature of assignment because that would in any case be the affect on the distribution of the residue. The property falling to the share of the partner on the distribution of the residue would natural then belong to him exclusively but so long as in the eye of law it is money and not immovable property there is no question of registration under Section 17 of the Registration Act. Besides, as stated earlier, even if one looks at the award as allocating certain immovable property since there is no transfer, no partition or extinguishment of any right therein there is no question of application of Section 17(1) of the Registration act. The reference to other land and buildings and house properties jointly owned by the disputants in clause (c) of paragraph 10 of the award merely indicates that certain properties belonging to the firm stood in the names of individual partners or in their joint names but they belonged to the firm and, therefore, they were taken into account for the purpose of settlement of accounts under Section 48 of the Partnership Act and distributed on the determination of the residue. The award read as a whole makes it absolutely clear that the Arbitrators had confined themselves to the properties belonging to the two firms and had scrupulously avoid other properties in regard to which they did not reach the conclusion that they belonged to the firm. On a correct reading of the award, we are satisfied that the award seeks to distribute the residue after settlement of accounts on dissolution. While distributing the residue the Arbitrators allocated the properties to the partners and showed them in the scheduled them in the schedules appended to the award. We are, therefore, of the opinion that on a true reading of the award as a whole, there is no doubt that it essentially deals with the distribution of the surplus properties belonging to the dissolved firms. The award, therefore, did not require registration under Section 17(1) of the Registration Act | 1 | 8,548 | 824 | ### 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:
inclusive of immovable properties, is movable property and the assignment of the share on dissolution of the partnership did not require registration under Section 17 of the Registration act. The decision, therefore, turned on the interpretation of the award in regard to the nature of the assignment made in favour of the appellant. So far as the second a case is concerned, we think it has no bearing since that was not a case of assignment of partnership property under a dissolution deed. In that case, the dispute was between two brothers in 2-1/2 kills of land situate in Panipat, Haryana. The said land stood in the name of one brother - the appellant. The respondent contended that he was a benamidar and that was the dispute which was referred to arbitration. The Arbitrator made his award and applied to the Court for making it the rule of the Court. Objections were filed by the appellant raising various contentions. The award declared that half share of the ownership of the appellant shall "be now owned by Shri. Ram Lal, the respondent in addition to his half share owned in those lands". Therefore, the award transferred half share of the appellant to the respondent and since the value thereof exceeded Rs. 100, it was held that it required registration. It is, therefore, obvious that this case has no bearing on the point in issue herein 18. In the present case, the Division Bench of the High Court concluded that the award required registration because of an erroneous reading of the award. The Division Bench after extensively reproducing from the Schedules A to F of the award proceeded to state in paragraph 39 that the allotments are exclusive to the brothers and they get independent rights of their own under the award in the properties allotted under the schedule and hence it is not a case purely of assignment of the share in the partnership but it confers exclusive rights to the allottees. On this line of reasoning it concluded that the award required registration. The court next pointed out in paragraph 42 of the judgment that the award also partitions certain immovable properties jointly owned by the disputants. In this connection it has placed reliance on paragraph 10(c) of the award which reads as under "(c). Other Lands and Buildings and House properties belonging to S. V. Sivalinga Nadar & Bros., standing in the name of the firms and/or otherwise jointly owned by the disputants. These have been allotted by us to one or other or jointly to some of the disputants as per schedules annexed hereto." The reasons which weighted with the Division Bench of the High Court ion concluding that the award requires registration appear to be based on an erroneous reading of the award. We have carefully read the award and it is manifest therefrom that the Arbitrators had confined themselves to the properties belonging to the two firms in question and scrupulously avoided dealing with the properties not belonging to the firm. This is manifest from paragraph 15 to 18 of the award. However, properties standing in the names of disputants, individually or jointly, and others as benamidars but belonging to the firm also came to be included in the distribution of the surplus partnership asset under the award. That is the purport of paragraph 10(c) extracted hereinabove. When on settlement of accounts the residue is required to be divided amount the partners in proportions in which they entitled to share profits under sub-clause (iv) of clause (b) of Section 48, the properties will have to be allocated to the partners as falling to their share on the distribution of the residue and, therefore, the Arbitrators indicated in the schedules the properties falling to the share of each brother. Mere statements that a certain property will now exclusively belong to one partner or the other, as the case may be, cannot change the character of the document or the nature of assignment because that would in any case be the affect on the distribution of the residue. The property falling to the share of the partner on the distribution of the residue would natural then belong to him exclusively but so long as in the eye of law it is money and not immovable property there is no question of registration under Section 17 of the Registration Act. Besides, as stated earlier, even if one looks at the award as allocating certain immovable property since there is no transfer, no partition or extinguishment of any right therein there is no question of application of Section 17(1) of the Registration act. The reference to other land and buildings and house properties jointly owned by the disputants in clause (c) of paragraph 10 of the award merely indicates that certain properties belonging to the firm stood in the names of individual partners or in their joint names but they belonged to the firm and, therefore, they were taken into account for the purpose of settlement of accounts under Section 48 of the Partnership Act and distributed on the determination of the residue. The award read as a whole makes it absolutely clear that the Arbitrators had confined themselves to the properties belonging to the two firms and had scrupulously avoid other properties in regard to which they did not reach the conclusion that they belonged to the firm. On a correct reading of the award, we are satisfied that the award seeks to distribute the residue after settlement of accounts on dissolution. While distributing the residue the Arbitrators allocated the properties to the partners and showed them in the scheduled them in the schedules appended to the award. We are, therefore, of the opinion that on a true reading of the award as a whole, there is no doubt that it essentially deals with the distribution of the surplus properties belonging to the dissolved firms. The award, therefore, did not require registration under Section 17(1) of the Registration Act
### Response:
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### Explanation:
18. In the present case, the Division Bench of the High Court concluded that the award required registration because of an erroneous reading of the award. The Division Bench after extensively reproducing from the Schedules A to F of the award proceeded to state in paragraph 39 that the allotments are exclusive to the brothers and they get independent rights of their own under the award in the properties allotted under the schedule and hence it is not a case purely of assignment of the share in the partnership but it confers exclusive rights to the allottees. On this line of reasoning it concluded that the award required registration. The court next pointed out in paragraph 42 of the judgment that the award also partitions certain immovable properties jointly owned by the disputants. In this connection it has placed reliance on paragraph 10(c) of the award which reads asOther Lands and Buildings and House properties belonging to S. V. Sivalinga Nadar & Bros., standing in the name of the firms and/or otherwise jointly owned by the disputants. These have been allotted by us to one or other or jointly to some of the disputants as per schedules annexedreasons which weighted with the Division Bench of the High Court ion concluding that the award requires registration appear to be based on an erroneous reading of the award. We have carefully read the award and it is manifest therefrom that the Arbitrators had confined themselves to the properties belonging to the two firms in question and scrupulously avoided dealing with the properties not belonging to the firm. This is manifest from paragraph 15 to 18 of the award. However, properties standing in the names of disputants, individually or jointly, and others as benamidars but belonging to the firm also came to be included in the distribution of the surplus partnership asset under the award. That is the purport of paragraph 10(c) extracted hereinabove. When on settlement of accounts the residue is required to be divided amount the partners in proportions in which they entitled to share profits under sub-clause (iv) of clause (b) of Section 48, the properties will have to be allocated to the partners as falling to their share on the distribution of the residue and, therefore, the Arbitrators indicated in the schedules the properties falling to the share of each brother. Mere statements that a certain property will now exclusively belong to one partner or the other, as the case may be, cannot change the character of the document or the nature of assignment because that would in any case be the affect on the distribution of the residue. The property falling to the share of the partner on the distribution of the residue would natural then belong to him exclusively but so long as in the eye of law it is money and not immovable property there is no question of registration under Section 17 of the Registration Act. Besides, as stated earlier, even if one looks at the award as allocating certain immovable property since there is no transfer, no partition or extinguishment of any right therein there is no question of application of Section 17(1) of the Registration act. The reference to other land and buildings and house properties jointly owned by the disputants in clause (c) of paragraph 10 of the award merely indicates that certain properties belonging to the firm stood in the names of individual partners or in their joint names but they belonged to the firm and, therefore, they were taken into account for the purpose of settlement of accounts under Section 48 of the Partnership Act and distributed on the determination of the residue. The award read as a whole makes it absolutely clear that the Arbitrators had confined themselves to the properties belonging to the two firms and had scrupulously avoid other properties in regard to which they did not reach the conclusion that they belonged to the firm. On a correct reading of the award, we are satisfied that the award seeks to distribute the residue after settlement of accounts on dissolution. While distributing the residue the Arbitrators allocated the properties to the partners and showed them in the scheduled them in the schedules appended to the award. We are, therefore, of the opinion that on a true reading of the award as a whole, there is no doubt that it essentially deals with the distribution of the surplus properties belonging to the dissolved firms. The award, therefore, did not require registration under Section 17(1) of the Registration Act
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High Court Of Punjab & Haryana Etc Vs. State Of Haryana & Ors. Etc | be, is illustrated by their appointment to Selection Grade posts.43. In (1972) 2 SCR 251 = (AIR 1972 SC 1028 ) a question arose as to who was the proper authority for confirming a member of the Assam Judicial Service. Sen was confirmed by the High Court in Judicial Service Grade I against the post of Subordinate Judge. The relevant rule provided that "when a person is appointed to a permanent post he will be confirmed after the period of probation in the case of Deputy Registrar and Assistant Registrar by the High Court and in other cases it will be made by the Governor in consultation with the High Court." The Accountant General refused to accept the confirmation made by the High Court. This Court held that under Article 235 the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotions is also in the High Court. The Advocate General relied on this decision and said that if the power of appointment was with the Governor under Article 233 the power of confirmation was with the Governor because the process of appointment is not complete until confirmation.44. The confirmation of persons appointed to be or promoted to be District Judges is clearly within the control of the High Court for these reasons. When persons are appointed to be District Judges or persons are promoted to be District Judges the act of appointment as well as the act of promotion is complete and nothing more remains to be done. Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Such a meaning of confirmation would make appointment a continuing process till confirmation. Confirmation of District Judges is vested in the control of the High Court for the reason that if after the appointment of District Judges the Governor will retain control over District Judges until confirmation there will be dual control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor would have control over unconfirmed District Judges. That is not Article 235.45. In the recent decision in Shamsher Singh v. State of Punjab, (Civil Appeal No. 2289 of l970 decided on 23-8-1974 = (reported in AIR 1974 SC 2192 ) this Court held that the High Court under Article 235 is vested with the control over Subordinate Judiciary. This Court said that before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or he is suitable for the post. In the absence of any rules governing the probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The suitability of a person to a post is of paramount importance in considering the question of confirmation.46. District Judges can be promoted to selection grade posts. Similarly, grant of leave to the District Judge is vested in the High Court. The control over District Judges includes also the posting of District Judges.47. The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of the power of control vested in the High Court. The High Court of course under this control cannot terminate the services or impose any punishment on District Judges by removal or reduction. The control over District Judges is that disciplinary proceedings are commenced by the High Court. If as a result of any disciplinary proceedings any District Judge is to be removed from service or any punishment is to be imposed that will be in accordance with the conditions of service.48. The order passed by the Governor shows that the State considered Rao to have committed serious irregularities which made him unfit for confirmation. It is indisputable that Rao was promoted to the post of District and Sessions Judge. His reversion carries a stigma as well as reduction in rank, and, therefore, he was entitled to be given an opportunity to show cause against the proposed action within Rule 9.49. The conclusion of the majority judgment that the order of confirmation is to be passed by the Governor in consultation with the High Court is erroneous and is set aside. Rule 10 which confers power on the Governor to confirm is ultra vires the Constitution. The order of confirmation of District and Sessions Judge is to be passed by the High Court. The unanimous view quashing the order passed by the Governor directing the removal because the same was based on enquiry conducted by the Director, Special Enquiry Agency, otherwise than through or with the concurrence of the High Court is upheld. The unanimous view that provisions of Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules are not complied with is upheld.50. This Court in the majority view in Shamsher Singh v. State of Punjab, C. A. No. 2289 of 1970 and Ishwar Chand Aggarwal v. State of Punjab, (Civil Appeal No. 632 of 1971) decided on 23 August, 1974 (reported in AIR 1974 SC 2192 ) pointed out that the High Court is to hold the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court for discipline and dignity. The enquiry conducted by the Director of Special Enquiry was unconstitutional.51. The majority view of the High Court upheld the seniority rule in the Punjab Superior Judicial Service Rules, 1953. This question was not in issue before the High Court. We have not gone into the question. We express no opinion on the seniority rule which is R. 12 in the Punjab Superior Judicial Service Rules, 1968. | 1[ds]18. It is true that the order of appointment of Rao states that he is appointed on probation with effect from the date he assumes charge of the post Rule 10 of the Service Rules provides that the probation is for two years and that it can be extended. It is apparent that Rao was appointed on the condition that he had to give satisfactory performance with regard to his work and conduct during the period of probation in order to qualify for confirmation. Rao was directly recruited on probation in a substantive vacancy in the cadre of the Superior Judicial Service. Mere use of the words "on probation" is not conclusive. Rao was a probationer because he was appointed against a post substantively vacant with definite conditions of probation. Rao therefore became a probationer. His probation could be extended so as not to exceed three years.On the question of control by the High Court under Article 235 this Court held in Bagchis case (1966) 1 SCR 771 = (AIR 1966 SC 447 ) (supra) that the word "control" as used in Article 235 includes disciplinary control or jurisdiction over district judges. This control is vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it includes disciplinary control the very object would be frustrated. The word "control" is accompanied by the word "vest" which shows that the High Court is made the sole custodian of the control over the judiciary. Control is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction on the presiding judge. The word "control" includes something in addition to mere superintendence over these courts. The control is over the conduct and discipline of judges. The inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. The word "deal" in Article 235 also indicates that the control is over disciplinary and not mere administrative jurisdiction. The word "court" in the term "district court" is used compendiously to denote not only the court proper but also the presiding judge. The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal and removal and initial posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal subject however to the conditions of service, to a right of appeal if granted by the conditions of service and to the giving of an opportunity of showing cause as required by Article 311 (2) unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone will make enquiry into disciplinaryCourt held that Article 235 read with service rules showed that a Munsif had no right to promotion which could be enforced through court. It is not correct to say that the High Court should have consulted the State Public Service Commission because Article 320 (3) (c) contemplated disciplinary matters. There was no reduction in rank of the respondent in that case. All Subordinate judges were in the same cadre and held the same rank irrespective of seniority. Losing place in the seniority list did not amount to reduction in rank.The expression "Judicial Service" is defined in Article 236 to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. The expression "district judge" includes among others an additional district judge and an additional sessions judge. The promotion of persons belonging to the judicial service but holding a post inferior to the district judge vests in the High Court. Because the expression "district judge" includes an additional district judge and an additional sessions judge, they rank above those persons whose promotion is vested in the High Court. It is the function of the Governor to promote Additional District Judge and Additional Sessions Judge to be District Judges.41. This Court held that under Article 233 the appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court. District Judges are directly appointed or are promoted from the subordinate rank of the judiciary. The initial appointment as well as the initial promotion of persons to be District Judges is with the Governor.The confirmation of persons appointed to be or promoted to be District Judges is clearly within the control of the High Court for these reasons. When persons are appointed to be District Judges or persons are promoted to be District Judges the act of appointment as well as the act of promotion is complete and nothing more remains to be done. Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Such a meaning of confirmation would make appointment a continuing process till confirmation. Confirmation of District Judges is vested in the control of the High Court for the reason that if after the appointment of District Judges the Governor will retain control over District Judges until confirmation there will be dual control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor would have control over unconfirmed District Judges. That is not Article 235.This Court in the majority view in Shamsher Singh v. State of Punjab, C. A. No. 2289 of 1970 and Ishwar Chand Aggarwal v. State of Punjab, (Civil Appeal No. 632 of 1971) decided on 23 August, 1974 (reported in AIR 1974 SC 2192 ) pointed out that the High Court is to hold the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court for discipline and dignity. The enquiry conducted by the Director of Special Enquiry was unconstitutional.51. The majority view of the High Court upheld the seniority rule in the Punjab Superior Judicial Service Rules, 1953. This question was not in issue before the High Court. We have not gone into the question. We express no opinion on the seniority rule which is R. 12 in the Punjab Superior Judicial Service Rules, 1968. | 1 | 7,396 | 1,176 | ### 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:
be, is illustrated by their appointment to Selection Grade posts.43. In (1972) 2 SCR 251 = (AIR 1972 SC 1028 ) a question arose as to who was the proper authority for confirming a member of the Assam Judicial Service. Sen was confirmed by the High Court in Judicial Service Grade I against the post of Subordinate Judge. The relevant rule provided that "when a person is appointed to a permanent post he will be confirmed after the period of probation in the case of Deputy Registrar and Assistant Registrar by the High Court and in other cases it will be made by the Governor in consultation with the High Court." The Accountant General refused to accept the confirmation made by the High Court. This Court held that under Article 235 the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotions is also in the High Court. The Advocate General relied on this decision and said that if the power of appointment was with the Governor under Article 233 the power of confirmation was with the Governor because the process of appointment is not complete until confirmation.44. The confirmation of persons appointed to be or promoted to be District Judges is clearly within the control of the High Court for these reasons. When persons are appointed to be District Judges or persons are promoted to be District Judges the act of appointment as well as the act of promotion is complete and nothing more remains to be done. Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Such a meaning of confirmation would make appointment a continuing process till confirmation. Confirmation of District Judges is vested in the control of the High Court for the reason that if after the appointment of District Judges the Governor will retain control over District Judges until confirmation there will be dual control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor would have control over unconfirmed District Judges. That is not Article 235.45. In the recent decision in Shamsher Singh v. State of Punjab, (Civil Appeal No. 2289 of l970 decided on 23-8-1974 = (reported in AIR 1974 SC 2192 ) this Court held that the High Court under Article 235 is vested with the control over Subordinate Judiciary. This Court said that before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or he is suitable for the post. In the absence of any rules governing the probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The suitability of a person to a post is of paramount importance in considering the question of confirmation.46. District Judges can be promoted to selection grade posts. Similarly, grant of leave to the District Judge is vested in the High Court. The control over District Judges includes also the posting of District Judges.47. The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of the power of control vested in the High Court. The High Court of course under this control cannot terminate the services or impose any punishment on District Judges by removal or reduction. The control over District Judges is that disciplinary proceedings are commenced by the High Court. If as a result of any disciplinary proceedings any District Judge is to be removed from service or any punishment is to be imposed that will be in accordance with the conditions of service.48. The order passed by the Governor shows that the State considered Rao to have committed serious irregularities which made him unfit for confirmation. It is indisputable that Rao was promoted to the post of District and Sessions Judge. His reversion carries a stigma as well as reduction in rank, and, therefore, he was entitled to be given an opportunity to show cause against the proposed action within Rule 9.49. The conclusion of the majority judgment that the order of confirmation is to be passed by the Governor in consultation with the High Court is erroneous and is set aside. Rule 10 which confers power on the Governor to confirm is ultra vires the Constitution. The order of confirmation of District and Sessions Judge is to be passed by the High Court. The unanimous view quashing the order passed by the Governor directing the removal because the same was based on enquiry conducted by the Director, Special Enquiry Agency, otherwise than through or with the concurrence of the High Court is upheld. The unanimous view that provisions of Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules are not complied with is upheld.50. This Court in the majority view in Shamsher Singh v. State of Punjab, C. A. No. 2289 of 1970 and Ishwar Chand Aggarwal v. State of Punjab, (Civil Appeal No. 632 of 1971) decided on 23 August, 1974 (reported in AIR 1974 SC 2192 ) pointed out that the High Court is to hold the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court for discipline and dignity. The enquiry conducted by the Director of Special Enquiry was unconstitutional.51. The majority view of the High Court upheld the seniority rule in the Punjab Superior Judicial Service Rules, 1953. This question was not in issue before the High Court. We have not gone into the question. We express no opinion on the seniority rule which is R. 12 in the Punjab Superior Judicial Service Rules, 1968.
### Response:
1
### Explanation:
to qualify for confirmation. Rao was directly recruited on probation in a substantive vacancy in the cadre of the Superior Judicial Service. Mere use of the words "on probation" is not conclusive. Rao was a probationer because he was appointed against a post substantively vacant with definite conditions of probation. Rao therefore became a probationer. His probation could be extended so as not to exceed three years.On the question of control by the High Court under Article 235 this Court held in Bagchis case (1966) 1 SCR 771 = (AIR 1966 SC 447 ) (supra) that the word "control" as used in Article 235 includes disciplinary control or jurisdiction over district judges. This control is vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it includes disciplinary control the very object would be frustrated. The word "control" is accompanied by the word "vest" which shows that the High Court is made the sole custodian of the control over the judiciary. Control is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction on the presiding judge. The word "control" includes something in addition to mere superintendence over these courts. The control is over the conduct and discipline of judges. The inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. The word "deal" in Article 235 also indicates that the control is over disciplinary and not mere administrative jurisdiction. The word "court" in the term "district court" is used compendiously to denote not only the court proper but also the presiding judge. The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal and removal and initial posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal subject however to the conditions of service, to a right of appeal if granted by the conditions of service and to the giving of an opportunity of showing cause as required by Article 311 (2) unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone will make enquiry into disciplinaryCourt held that Article 235 read with service rules showed that a Munsif had no right to promotion which could be enforced through court. It is not correct to say that the High Court should have consulted the State Public Service Commission because Article 320 (3) (c) contemplated disciplinary matters. There was no reduction in rank of the respondent in that case. All Subordinate judges were in the same cadre and held the same rank irrespective of seniority. Losing place in the seniority list did not amount to reduction in rank.The expression "Judicial Service" is defined in Article 236 to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. The expression "district judge" includes among others an additional district judge and an additional sessions judge. The promotion of persons belonging to the judicial service but holding a post inferior to the district judge vests in the High Court. Because the expression "district judge" includes an additional district judge and an additional sessions judge, they rank above those persons whose promotion is vested in the High Court. It is the function of the Governor to promote Additional District Judge and Additional Sessions Judge to be District Judges.41. This Court held that under Article 233 the appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court. District Judges are directly appointed or are promoted from the subordinate rank of the judiciary. The initial appointment as well as the initial promotion of persons to be District Judges is with the Governor.The confirmation of persons appointed to be or promoted to be District Judges is clearly within the control of the High Court for these reasons. When persons are appointed to be District Judges or persons are promoted to be District Judges the act of appointment as well as the act of promotion is complete and nothing more remains to be done. Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Such a meaning of confirmation would make appointment a continuing process till confirmation. Confirmation of District Judges is vested in the control of the High Court for the reason that if after the appointment of District Judges the Governor will retain control over District Judges until confirmation there will be dual control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor would have control over unconfirmed District Judges. That is not Article 235.This Court in the majority view in Shamsher Singh v. State of Punjab, C. A. No. 2289 of 1970 and Ishwar Chand Aggarwal v. State of Punjab, (Civil Appeal No. 632 of 1971) decided on 23 August, 1974 (reported in AIR 1974 SC 2192 ) pointed out that the High Court is to hold the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court for discipline and dignity. The enquiry conducted by the Director of Special Enquiry was unconstitutional.51. The majority view of the High Court upheld the seniority rule in the Punjab Superior Judicial Service Rules, 1953. This question was not in issue before the High Court. We have not gone into the question. We express no opinion on the seniority rule which is R. 12 in the Punjab Superior Judicial Service Rules, 1968.
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M/S. Gic Housing Finance Limited Vs. The State of Maharashtra & Another | it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr. P. C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.25. Issuing a direction stating as per the application to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no. 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No. 1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No. 1. We are only stating about the devilish design of the respondent No. 3 to harass the appellants with the sole intent to void the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr. P. C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.22. From a perusal of these paragraphs, it is apparent that by issuance of notice under section 13(2) of the SARFAESI Act, no offence is committed by a public financial institution or a Bank and which can be said to be punishable under the IPC or a penal law. Once issuance of notice is in furtherance of the powers and vested by the statute, then, nothing that is punishable as an offence can be attributed to the public financial institution and its officers.23. In the present case as well, we find that the position is that the second Respondent/complainant has approached a criminal court with a complaint and essentially based on the notice under section 13(2) of the SARFAESI Act and the act of the Petitioner No. 1 in issuing the same. We do not see any offence being committed much less punishable under section 383 of the Indian Penal Code. The notice is not intended to extort money but to recover public funds by exercise of powers under the law enacted by the Parliament and found to be constitutionally valid. In these circumstances, the criminal complaint is a gross abuse of the process of the Court. The learned Magistrate ought to have applied his mind and not mechanically pass an order under section 156(3) of the Criminal Procedure Code. He does not stop there and proceeded further to direct registration of FIR. In his entire order, we do not see that he has adverted to the allegations in the complaint and concluded whether they disclose prima facie commission of any offence. That is how he had to proceed in law. He having not proceeded in this manner, we do not find any justification to sustain his order.24. We are left only to deal with the Judgments and authorities brought to our notice. To be fair to him, even if he is not a practicing Advocate, Respondent No. 2 seems to be familiar with principles of law. He has tried to persuade us in applying the tests laid down in the case of State of Haryana vs. Bhajan Lal and Ors. reported in 1992 SCC Supl. (1) 335. It is precisely these tests that we have applied. It is the further test that though inherent powers have to be sparingly exercised, but they have to be exercised to secure the ends of justice that we have held as above. We do not think that we have deviated from any of the principles that have been delineated and summarised in this case. We have also taken note of the decision relied upon by the complainant to the effect that the powers in this Court are extraordinary in nature and should not be a normal and mechanical exercise. We have applied our mind independently and after referring to the complaint and reading it as a whole and taking all the allegations therein at their face value that we are of the firm opinion that no prima facie case of commission of any offence has been disclosed therein. | 1[ds]21. From a reading of the allegations in the complaint and as a whole, we do not find any offence under section 383 being even prima facie made out. The reliance placed by Mr. Barve on the Judgment of the Honble Supreme Court and on a Judgment of a Division Bench of this Court is therefore accurate. None of the allegations, and which we have referred extensively in order not to leave any room for doubt or a complaint for injustice, would make out the offence of extortion. The first Petitioner was acting in furtherance of a contractual stipulation, whereunder it sanctioned the loan. It is a public sector corporation and rather a public financial institution. It is in the business of advancing and lending moneys. In terms of the contract, it was entitled to call upon the second Respondent and his wife to make payment of the loan amount sanctioned and disbursed. That the liability in that behalf is not disputed is clear from the complainants version. That there were cheques handed over and towards repayment of the loan is further undisputed. That there may have been an understanding or otherwise with regard to the deposit of these cheques and that intimation to the second Respondent/complainant but it is the complainants version that only some of the cheques were deposited without intimation, whereas, at least 7 cheques were deposited with intimation to the complainant. We do not see how by such an act and which is alleged to have been committed, namely of deposit of cheques behind the back of the complainant in order to prosecute the complainant lawfully and for offence punishable under section 138 of the Negotiable Instruments Act can be said to be an act within the meaning of section 383 of the Indian Penal Code. A completely voluntary act of handing over the cheques and in due discharge of a admitted liability of the complainant and his wife is not out of any fear of injury to either. Nor this act of handing over post dated cheques for being deposited in Petitioner No. 1s account is because of dishonest inducement to deliver a valuable security. Similarly, the creation of a equitable mortgage in favour of the Petitioner No. 1 is also in return of a loan facility, duly sanctioned and the amount thereunder disbursed and received by the Respondent No. 2 and his wife. This is also a voluntary and contractual act, prima facie. That the cheques on due presentation were not honoured is apparent from the allegations in the complaint itself. Therefore, there is no question of intentionally putting the complainant or the second Respondent in any fear of any injury. Secondly, by issuance of notice under section 13(2) of the SARFAESI Act, we do not see how the offence of extortion is committed. The legal rights and vesting in the Petitioner No. 1 under the parliamentary statute having been exercised, the offence of extortion is not committed prima facie. Precisely, this was the issue before the Honble Supreme Court and in the case of Mrs. Priyanka Srivastava (supra). One Prakash Kumar Bajaj son of Pradeep Kumar Bajaj had availed housing loan from Punjab National Bank Housing Finance Limited. The loan was taken in the name of Respondent No. 3 and his wife, namely Jyotsna Bajaj. As there was default in payment of the installments, the loan account was treated non performing asset in accordance with the guidelines framed by the competent authorities. Thereafter, the financial institution issued notice to the borrower under section 13(2) of the SARFAESI Act and in pursuance thereof, submitted an application on 5th June, 2007 before the District Magistrate, Varanasi for taking appropriate action under section 13(4) of the SARFAESI Act. Thereafter, the Writ Petition of Respondent No. 3 before the High Court was dismissed with liberty to him to approach the Tribunal under section 17 of the SARFAESI. That is how the complaint came to be filed and against all the officers and managers of the financial institution and the allegation was that the offences punishable under section 163, 193 and 506 of the Indian Penal Code are committed. The criminal complaint was dismissed and a Criminal Revision Application was preferred and the Additional Sessions Judge, Varanasi set aside the order passed and remanded the case to the Trial Court. Then, what is transpired is that the Honble Supreme Court referred to the manner in which the Magistrate proceeded to take cognizance. Once the Honble Supreme Court discussed that part of the controversy, what it has referred to are the proceedings before the Tribunal under the SARFAESI Act. Thereafter, a criminal case was filed and series of them and which are referred to in para 7 of the Judgment of the Honble Supreme Court, pursuant to which FIR No. 298 of 2011 was registered. The FIR and then the allegations therein, the offer of one time settlement are all referred in the Honble Supreme Court Judgment and subsequently what the Honble Supreme Court cautioned is that the powers conferred vide section 156(3) of the Criminal Procedure Code cannot be exercised as a matter of course and mechanically by the Magistrates. They are expected to apply their mind and consider as to whether any offence under the penal Act has been committed for the Court to take note of the same. It is in these circumstances that the reliance that has been placed on paras 24 and 25 of this judgment is appropriate. These paras read as under:24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr. P. C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.25. Issuing a direction stating as per the application to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no. 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No. 1, who is presently occupying the position ofneither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No. 1. We are only stating about the devilish design of the respondent No. 3 to harass the appellants with the sole intent to void the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr. P. C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.22. From a perusal of these paragraphs, it is apparent that by issuance of notice under section 13(2) of the SARFAESI Act, no offence is committed by a public financial institution or a Bank and which can be said to be punishable under the IPC or a penal law. Once issuance of notice is in furtherance of the powers and vested by the statute, then, nothing that is punishable as an offence can be attributed to the public financial institution and its officers.23. In the present case as well, we find that the position is that the second Respondent/complainant has approached a criminal court with a complaint and essentially based on the notice under section 13(2) of the SARFAESI Act and the act of the Petitioner No. 1 in issuing the same. We do not see any offence being committed much less punishable under section 383 of the Indian Penal Code. The notice is not intended to extort money but to recover public funds by exercise of powers under the law enacted by the Parliament and found to be constitutionally valid. In these circumstances, the criminal complaint is a gross abuse of the process of the Court. The learned Magistrate ought to have applied his mind and not mechanically pass an order under section 156(3) of the Criminal Procedure Code. He does not stop there and proceeded further to direct registration of FIR. In his entire order, we do not see that he has adverted to the allegations in the complaint and concluded whether they disclose prima facie commission of any offence. That is how he had to proceed in law. He having not proceeded in this manner, we do not find any justification to sustain his order.24. We are left only to deal with the Judgments and authorities brought to our notice. To be fair to him, even if he is not a practicing Advocate, Respondent No. 2 seems to be familiar with principles of law. He has tried to persuade us in applying the tests laid down in the case of State of Haryana vs. Bhajan Lal and Ors. reported in 1992 SCC Supl. (1) 335. It is precisely these tests that we have applied. It is the further test that though inherent powers have to be sparingly exercised, but they have to be exercised to secure the ends of justice that we have held as above. We do not think that we have deviated from any of the principles that have been delineated and summarised in this case. We have also taken note of the decision relied upon by the complainant to the effect that the powers in this Court are extraordinary in nature and should not be a normal and mechanical exercise. We have applied our mind independently and after referring to the complaint and reading it as a whole and taking all the allegations therein at their face value that we are of the firm opinion that no prima facie case of commission of any offence has been disclosed therein. | 1 | 5,945 | 2,113 | ### 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.
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it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr. P. C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.25. Issuing a direction stating as per the application to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no. 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No. 1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No. 1. We are only stating about the devilish design of the respondent No. 3 to harass the appellants with the sole intent to void the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr. P. C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.22. From a perusal of these paragraphs, it is apparent that by issuance of notice under section 13(2) of the SARFAESI Act, no offence is committed by a public financial institution or a Bank and which can be said to be punishable under the IPC or a penal law. Once issuance of notice is in furtherance of the powers and vested by the statute, then, nothing that is punishable as an offence can be attributed to the public financial institution and its officers.23. In the present case as well, we find that the position is that the second Respondent/complainant has approached a criminal court with a complaint and essentially based on the notice under section 13(2) of the SARFAESI Act and the act of the Petitioner No. 1 in issuing the same. We do not see any offence being committed much less punishable under section 383 of the Indian Penal Code. The notice is not intended to extort money but to recover public funds by exercise of powers under the law enacted by the Parliament and found to be constitutionally valid. In these circumstances, the criminal complaint is a gross abuse of the process of the Court. The learned Magistrate ought to have applied his mind and not mechanically pass an order under section 156(3) of the Criminal Procedure Code. He does not stop there and proceeded further to direct registration of FIR. In his entire order, we do not see that he has adverted to the allegations in the complaint and concluded whether they disclose prima facie commission of any offence. That is how he had to proceed in law. He having not proceeded in this manner, we do not find any justification to sustain his order.24. We are left only to deal with the Judgments and authorities brought to our notice. To be fair to him, even if he is not a practicing Advocate, Respondent No. 2 seems to be familiar with principles of law. He has tried to persuade us in applying the tests laid down in the case of State of Haryana vs. Bhajan Lal and Ors. reported in 1992 SCC Supl. (1) 335. It is precisely these tests that we have applied. It is the further test that though inherent powers have to be sparingly exercised, but they have to be exercised to secure the ends of justice that we have held as above. We do not think that we have deviated from any of the principles that have been delineated and summarised in this case. We have also taken note of the decision relied upon by the complainant to the effect that the powers in this Court are extraordinary in nature and should not be a normal and mechanical exercise. We have applied our mind independently and after referring to the complaint and reading it as a whole and taking all the allegations therein at their face value that we are of the firm opinion that no prima facie case of commission of any offence has been disclosed therein.
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of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr. P. C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.25. Issuing a direction stating as per the application to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no. 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No. 1, who is presently occupying the position ofneither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No. 1. We are only stating about the devilish design of the respondent No. 3 to harass the appellants with the sole intent to void the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr. P. C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.22. From a perusal of these paragraphs, it is apparent that by issuance of notice under section 13(2) of the SARFAESI Act, no offence is committed by a public financial institution or a Bank and which can be said to be punishable under the IPC or a penal law. Once issuance of notice is in furtherance of the powers and vested by the statute, then, nothing that is punishable as an offence can be attributed to the public financial institution and its officers.23. In the present case as well, we find that the position is that the second Respondent/complainant has approached a criminal court with a complaint and essentially based on the notice under section 13(2) of the SARFAESI Act and the act of the Petitioner No. 1 in issuing the same. We do not see any offence being committed much less punishable under section 383 of the Indian Penal Code. The notice is not intended to extort money but to recover public funds by exercise of powers under the law enacted by the Parliament and found to be constitutionally valid. In these circumstances, the criminal complaint is a gross abuse of the process of the Court. The learned Magistrate ought to have applied his mind and not mechanically pass an order under section 156(3) of the Criminal Procedure Code. He does not stop there and proceeded further to direct registration of FIR. In his entire order, we do not see that he has adverted to the allegations in the complaint and concluded whether they disclose prima facie commission of any offence. That is how he had to proceed in law. He having not proceeded in this manner, we do not find any justification to sustain his order.24. We are left only to deal with the Judgments and authorities brought to our notice. To be fair to him, even if he is not a practicing Advocate, Respondent No. 2 seems to be familiar with principles of law. He has tried to persuade us in applying the tests laid down in the case of State of Haryana vs. Bhajan Lal and Ors. reported in 1992 SCC Supl. (1) 335. It is precisely these tests that we have applied. It is the further test that though inherent powers have to be sparingly exercised, but they have to be exercised to secure the ends of justice that we have held as above. We do not think that we have deviated from any of the principles that have been delineated and summarised in this case. We have also taken note of the decision relied upon by the complainant to the effect that the powers in this Court are extraordinary in nature and should not be a normal and mechanical exercise. We have applied our mind independently and after referring to the complaint and reading it as a whole and taking all the allegations therein at their face value that we are of the firm opinion that no prima facie case of commission of any offence has been disclosed therein.
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Har Sharan Verma Vs. Tribhuvan Narain Singh, Chief Minister U.P. & Anr | he is by or under this Constitution required to exercise his functions or any of them in his discretion". Under Cl.(1) of Article 164, the Chief Minister has to be appointed by the Governor and the other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but Clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf.5. The appellant says that if the interpretation put by the High Court is correct it would be possible for a Governor to appoint a Chief Minister and Ministers none of whom are Members of the State Legislature. He said that this could not have been contemplated. But it the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this unlikely Council of Ministers there is nothing in the Constitution which would make this appointment illegal.6. The appellant drew our attention to Article 175 in which it is provided that "the Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of Members". He said that it would be rather strange that the Ministers, who were not members of either the Legislative Assembly or the Legislative Council would not be present. But it seems to us that by virtue of Article 177 the Ministers, even if they are not Members of a Legislative Assembly or Legislative Council would be entitled to be present at such a meeting.7. It seems to us that in the context of the other provisions of the Constitution referred to above there is no reason why the plain words of Clause (4) of Article 164 should be cut down in any manner and confined to a case where a Minister loses for some reason his seat in the Legislature of the State. We are assured that the meaning we have given to Clause (4) of Article 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Australia and South Africa.8. An amendment [Constituent Assembly Debates dated June 1, 1949 Official Report Vol. VIII, p. 521.] was proposed in the Constituent Assembly that the following be substituted:"A Minister shall, at the time of his being chosen as such be a member of the Legislative Assembly or Legislative Council of the States as the case may be."This amendment was, however, negatived.9. It is interesting to note the position in England. According to Jennings:***Cabinet Government by Jennings third edition, page 60."It is a well-settled convention that these ministers should be either peers or members of the House of Commons. There have been occasional exception. Mr. Gladstone once held office out of Parliament for nine months. The Scottish Law Officers sometimes, as in 1923 and 1924, are not in Parliament. General Smuts was Minister without portfolio and a member of the War Cabinet from 1916 until 19l8. Mr. Ramsay MacDonald and Mr. Malcolm Macdonald were members of the Cabinet though not in Parliament from the general election of November, 1935 until early in 1936.""The House of Commons is, however, critical of such exceptions."10. Section 64 of the Commonwealth of Australia Constitution Act inter alia provides that "after the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives." Commenting on this Quick and Garran***state as follows:**"Annotated Constitution of the Australian Commonwealth" by Quick and Garran, p. 711."The appointment of a Federal Ministry will necessarily precede the election of the first Federal Parliament. There must be a Ministry to assist and advise the Governor-General in the performance of Executive Acts essential for the conduct of the first general election. The first Federal Ministry cannot at their appointment be members of the Federal Parliament, because at the time of their appointment there is no such Parliament in existence. After the first general election, however, no Federal Minister is permitted to hold office for a longer period than three months, unless he is or becomes a senator or a member of the House of Representatives.Section 32 of the Constitution Act of South Australia (4th January, 1856) contained a similar provision. viz., that after the first general election of the South Australian Parliament, no person should hold the offices of Chief Secretary. Attorney-General, Treasurer. Commissioner of Crown Lands and Immigration, or Commissioner of Public Works, for more than three calendar months, unless he should be a member of the Legislative Council or House of Assembly."11. This shows that Article 164 (4) has an ancient lineage.12. Section 14 (1) of the South Africa Act, 1909 reads thus:"The Governor-General may appoint officers not exceeding (twelve) in number to administer such departments of State of the Union as the Governor-General in Council may establish: such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Executive Council and shall be the Kings Ministers of State for the Union. After the first general election of members of the House of Assembly, as hereinafter provided, no minister shall hold office for a longer period than three months unless he is or becomes a member of either House of Parliament".13. Hahlo and Kahn*state thus:*The British Commonwealth - "The Development of its Laws and Constitutions" by Hahlo and Kahn (Vol. 5 p. 130)."The rule of responsible Government that Ministers must be Members of Parliament is ensured by the statutory requirement that they be or within three months become members of either House." | 0[ds]4. It seems to us that Clause (4) of Article 164 must be interpreted in the context of Articles 163 and 164 of the Constitution. Article 163 (1) provides that "there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion". Under Cl.(1) of Article 164, the Chief Minister has to be appointed by the Governor and the other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but Clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf.It seems to us that in the context of the other provisions of the Constitution referred to above there is no reason why the plain words of Clause (4) of Article 164 should be cut down in any manner and confined to a case where a Minister loses for some reason his seat in the Legislature of the State. We are assured that the meaning we have given to Clause (4) of Article 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Australia and South Africa. | 0 | 1,559 | 307 | ### 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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he is by or under this Constitution required to exercise his functions or any of them in his discretion". Under Cl.(1) of Article 164, the Chief Minister has to be appointed by the Governor and the other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but Clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf.5. The appellant says that if the interpretation put by the High Court is correct it would be possible for a Governor to appoint a Chief Minister and Ministers none of whom are Members of the State Legislature. He said that this could not have been contemplated. But it the Legislative Assembly of the State to whom this Council of Ministers would be collectively responsible endorses this unlikely Council of Ministers there is nothing in the Constitution which would make this appointment illegal.6. The appellant drew our attention to Article 175 in which it is provided that "the Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of Members". He said that it would be rather strange that the Ministers, who were not members of either the Legislative Assembly or the Legislative Council would not be present. But it seems to us that by virtue of Article 177 the Ministers, even if they are not Members of a Legislative Assembly or Legislative Council would be entitled to be present at such a meeting.7. It seems to us that in the context of the other provisions of the Constitution referred to above there is no reason why the plain words of Clause (4) of Article 164 should be cut down in any manner and confined to a case where a Minister loses for some reason his seat in the Legislature of the State. We are assured that the meaning we have given to Clause (4) of Article 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Australia and South Africa.8. An amendment [Constituent Assembly Debates dated June 1, 1949 Official Report Vol. VIII, p. 521.] was proposed in the Constituent Assembly that the following be substituted:"A Minister shall, at the time of his being chosen as such be a member of the Legislative Assembly or Legislative Council of the States as the case may be."This amendment was, however, negatived.9. It is interesting to note the position in England. According to Jennings:***Cabinet Government by Jennings third edition, page 60."It is a well-settled convention that these ministers should be either peers or members of the House of Commons. There have been occasional exception. Mr. Gladstone once held office out of Parliament for nine months. The Scottish Law Officers sometimes, as in 1923 and 1924, are not in Parliament. General Smuts was Minister without portfolio and a member of the War Cabinet from 1916 until 19l8. Mr. Ramsay MacDonald and Mr. Malcolm Macdonald were members of the Cabinet though not in Parliament from the general election of November, 1935 until early in 1936.""The House of Commons is, however, critical of such exceptions."10. Section 64 of the Commonwealth of Australia Constitution Act inter alia provides that "after the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives." Commenting on this Quick and Garran***state as follows:**"Annotated Constitution of the Australian Commonwealth" by Quick and Garran, p. 711."The appointment of a Federal Ministry will necessarily precede the election of the first Federal Parliament. There must be a Ministry to assist and advise the Governor-General in the performance of Executive Acts essential for the conduct of the first general election. The first Federal Ministry cannot at their appointment be members of the Federal Parliament, because at the time of their appointment there is no such Parliament in existence. After the first general election, however, no Federal Minister is permitted to hold office for a longer period than three months, unless he is or becomes a senator or a member of the House of Representatives.Section 32 of the Constitution Act of South Australia (4th January, 1856) contained a similar provision. viz., that after the first general election of the South Australian Parliament, no person should hold the offices of Chief Secretary. Attorney-General, Treasurer. Commissioner of Crown Lands and Immigration, or Commissioner of Public Works, for more than three calendar months, unless he should be a member of the Legislative Council or House of Assembly."11. This shows that Article 164 (4) has an ancient lineage.12. Section 14 (1) of the South Africa Act, 1909 reads thus:"The Governor-General may appoint officers not exceeding (twelve) in number to administer such departments of State of the Union as the Governor-General in Council may establish: such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Executive Council and shall be the Kings Ministers of State for the Union. After the first general election of members of the House of Assembly, as hereinafter provided, no minister shall hold office for a longer period than three months unless he is or becomes a member of either House of Parliament".13. Hahlo and Kahn*state thus:*The British Commonwealth - "The Development of its Laws and Constitutions" by Hahlo and Kahn (Vol. 5 p. 130)."The rule of responsible Government that Ministers must be Members of Parliament is ensured by the statutory requirement that they be or within three months become members of either House."
### Response:
0
### Explanation:
4. It seems to us that Clause (4) of Article 164 must be interpreted in the context of Articles 163 and 164 of the Constitution. Article 163 (1) provides that "there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion". Under Cl.(1) of Article 164, the Chief Minister has to be appointed by the Governor and the other Ministers have to be appointed by him on the advice of the Chief Minister. They all hold office during the pleasure of the Governor Clause (1) does not provide any qualification for the person to be selected by the Governor as the Chief Minister or Minister, but Clause (2) makes it essential that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. This is the only condition that the Constitution prescribes in this behalf.It seems to us that in the context of the other provisions of the Constitution referred to above there is no reason why the plain words of Clause (4) of Article 164 should be cut down in any manner and confined to a case where a Minister loses for some reason his seat in the Legislature of the State. We are assured that the meaning we have given to Clause (4) of Article 164 is the correct one from the proceedings of the Constituent Assembly and the position as it obtains in England, Australia and South Africa.
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Byramjee Jeejeebhoy (P) Ltd Vs. State Of Maharashtra | Banajee, and he was freed from liability to pay assessment. The freedom from liability to pay land revenue was subject to certain covenants - covenants to respect the rights of occupants of the land and not to introduce innovations in the rates of assessment in respect of all lands in the possession of tenants, to continue Dewasthans, Dharmadawas and allowances and to pay annual rent of Re. 1/- if demanded. The right to hold the villages free from liability to pay land revenue was therefore conferred by the indenture subject to the restrictions imposed by agreement between the East India Company and the grantee.11. Counsel for the appellant urged that the agreement contemplated by S. 2(d) of the Act is a personal agreement and not one relating to the estate granted, and submitted that the covenants in the indenture being not of that nature the appellant does not hold the villages under an agreement. We are unable to accept this contention. It is true that where property is transferred absolutely by one person to another, it cannot be said that the property transferred is held under an agreement with the transferor merely because of the covenant of title. But when the State transfers property to a citizen, it does not thereby, in the absence of an express provision, grant exemption from liability to pay revenue. The right to recover revenue is not an incident of ownership: it is a prerogative of the sovereign, or a liberty or franchise of some authority claiming derivatively from the sovereign. Mere grant of land by the State does not absolve the grantee from liability to pay revenue. Under the indenture dated September 22, 1847, the grantee was given a right to hold the villages free from liability to pay revenue on certain terms, one of which was to pay rent of Re. 1/- per annum when demanded. The villages were granted subject to the restrictions, in absolute right and freedom from liability to pay revenue in respect of the villages was given subject to certain conditions. Imposition of these conditions subject to which exemption from liability to pay land revenue was granted, and acceptance thereof constituted an agreement within the meaning of S. 2(d). The villages though held in absolute right are still in the matter of liability to pay land revenue held under an agreement from the State Government. In the grant in question there is in the first instance an obligation to pay annual rent, if demanded. There is also an obligation to respect the rights of the holders of the lands and of Dewasthans, Dharamdawas and to make allowance to Pals. There is then an obligation not to alter the rights of the holders of land to their prejudice, and the grant of the right to exemption from payment of revenue is made subject to all laws and regulations which are from time to time in force in the Island of Salsette touching the sale and manufacture of spirituous liquors or poisonous or injurious drugs or substances. These are all covenants which raise contractual obligations on the exemption from land revenue, absolute grant of the land notwithstanding. Both the conditions prescribed under the definition, namely, specification in the Schedule and holding under a kowl as defined under the Act were therefore fulfilled, and the villages were at the date of the Act, held under an agreement from the State of Bombay.12. The next question is whether the grant is exempt from the operation of sub-s. (1) of S. 3, under which all lands in an estate are and shall be liable to the payment of land revenue to the State Government. This liability is imposed notwithstanding anything contained in the kowl, or decree or order of a court or any other instrument or any law for the time being in force. Prima facie, the covenants contained in the kowl whereby the grantee was discharged and absolved from liability to pay land revenue must be regarded as superseded by the statutory imposition of liability to pay land revenue. But the operation of sub-s. (1) of S. 3 is subject to the provisions of sub-s. (3). That sub-section states that nothing in subsection (1) shall be deemed to affect the right of any person to hold land in an estate wholly or partially exempt from the payment of land revenue under a special contract, or grant made or recognized by the terms of the kowl in respect of the estate or under a law for the time being in force in favour of any person other than the estate-holder. This clause only protects the rights of a person to hold land in an estate exempt from payment of land revenue, if such exemption is under a special contract or grant made or recognised by the terms of the kowl in respect of the estate or under a law for the time being in force, and a person whose rights are not so affected must be a person other than the estate-holder. By sub-s. (1) therefore exemption granted from payment of land revenue to the grantee of the kowl is extinguished: sub-section (3) however saves the rights of persons other than the estate-holder, who hold land in the estate. By express provision the estate-holder is excluded from the benefit of sub-s. (3). The intention of the Legislature is clear: it is to withdraw the exemption in favour of the estate-holder from payment of land revenue if such right was granted under a kowl. That withdrawal is not to affect the rights of persons holding land in an estate under a special contract, or grant which was made or recognized by the terms of the kowl even if the right was to hold the land exempt from the payment of land revenue. The futility of the argument that the expression "person" when it first occurs in sub-s. (3) includes the estate-holder, becomes obvious if the clause is read after substituting the expression "estate-holder for "person". | 0[ds]We are unable to accept this contention. It is true that where property is transferred absolutely by one person to another, it cannot be said that the property transferred is held under an agreement with the transferor merely because of the covenant of title. But when the State transfers property to a citizen, it does not thereby, in the absence of an express provision, grant exemption from liability to pay revenue. The right to recover revenue is not an incident of ownership: it is a prerogative of the sovereign, or a liberty or franchise of some authority claiming derivatively from the sovereign. Mere grant of land by the State does not absolve the grantee from liability to pay revenue. Under the indenture dated September 22, 1847, the grantee was given a right to hold the villages free from liability to pay revenue on certain terms, one of which was to pay rent of Re. 1/- per annum when demanded. The villages were granted subject to the restrictions, in absolute right and freedom from liability to pay revenue in respect of the villages was given subject to certain conditions. Imposition of these conditions subject to which exemption from liability to pay land revenue was granted, and acceptance thereof constituted an agreement within the meaning of S. 2(d). The villages though held in absolute right are still in the matter of liability to pay land revenue held under an agreement from the State Government. In the grant in question there is in the first instance an obligation to pay annual rent, if demanded. There is also an obligation to respect the rights of the holders of the lands and of Dewasthans, Dharamdawas and to make allowance to Pals. There is then an obligation not to alter the rights of the holders of land to their prejudice, and the grant of the right to exemption from payment of revenue is made subject to all laws and regulations which are from time to time in force in the Island of Salsette touching the sale and manufacture of spirituous liquors or poisonous or injurious drugs or substances. These are all covenants which raise contractual obligations on the exemption from land revenue, absolute grant of the land notwithstanding. Both the conditions prescribed under the definition, namely, specification in the Schedule and holding under a kowl as defined under the Act were therefore fulfilled, and the villages were at the date of the Act, held under an agreement from the State of Bombay.12. The next question is whether the grant is exempt from the operation of sub-s. (1) of S. 3, under which all lands in an estate are and shall be liable to the payment of land revenue to the State Government. This liability is imposed notwithstanding anything contained in the kowl, or decree or order of a court or any other instrument or any law for the time being in force. Prima facie, the covenants contained in the kowl whereby the grantee was discharged and absolved from liability to pay land revenue must be regarded as superseded by the statutory imposition of liability to pay land revenue. But the operation of sub-s. (1) of S. 3 is subject to the provisions of sub-s. (3). That sub-section states that nothing in subsection (1) shall be deemed to affect the right of any person to hold land in an estate wholly or partially exempt from the payment of land revenue under a special contract, or grant made or recognized by the terms of the kowl in respect of the estate or under a law for the time being in force in favour of any person other than the estate-holder. This clause only protects the rights of a person to hold land in an estate exempt from payment of land revenue, if such exemption is under a special contract or grant made or recognised by the terms of the kowl in respect of the estate or under a law for the time being in force, and a person whose rights are not so affected must be a person other than the estate-holder. By sub-s. (1) therefore exemption granted from payment of land revenue to the grantee of the kowl is extinguished: sub-section (3) however saves the rights of persons other than the estate-holder, who hold land in the estate. By express provision the estate-holder is excluded from the benefit of sub-s. (3). The intention of the Legislature is clear: it is to withdraw the exemption in favour of the estate-holder from payment of land revenue if such right was granted under a kowl. That withdrawal is not to affect the rights of persons holding land in an estate under a special contract, or grant which was made or recognized by the terms of the kowl even if the right was to hold the land exempt from the payment of land revenue. The futility of the argument that the expression "person" when it first occurs in sub-s. (3) includes the estate-holder, becomes obvious if the clause is read after substituting the expression "estate-holder for "person". | 0 | 4,760 | 931 | ### 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:
Banajee, and he was freed from liability to pay assessment. The freedom from liability to pay land revenue was subject to certain covenants - covenants to respect the rights of occupants of the land and not to introduce innovations in the rates of assessment in respect of all lands in the possession of tenants, to continue Dewasthans, Dharmadawas and allowances and to pay annual rent of Re. 1/- if demanded. The right to hold the villages free from liability to pay land revenue was therefore conferred by the indenture subject to the restrictions imposed by agreement between the East India Company and the grantee.11. Counsel for the appellant urged that the agreement contemplated by S. 2(d) of the Act is a personal agreement and not one relating to the estate granted, and submitted that the covenants in the indenture being not of that nature the appellant does not hold the villages under an agreement. We are unable to accept this contention. It is true that where property is transferred absolutely by one person to another, it cannot be said that the property transferred is held under an agreement with the transferor merely because of the covenant of title. But when the State transfers property to a citizen, it does not thereby, in the absence of an express provision, grant exemption from liability to pay revenue. The right to recover revenue is not an incident of ownership: it is a prerogative of the sovereign, or a liberty or franchise of some authority claiming derivatively from the sovereign. Mere grant of land by the State does not absolve the grantee from liability to pay revenue. Under the indenture dated September 22, 1847, the grantee was given a right to hold the villages free from liability to pay revenue on certain terms, one of which was to pay rent of Re. 1/- per annum when demanded. The villages were granted subject to the restrictions, in absolute right and freedom from liability to pay revenue in respect of the villages was given subject to certain conditions. Imposition of these conditions subject to which exemption from liability to pay land revenue was granted, and acceptance thereof constituted an agreement within the meaning of S. 2(d). The villages though held in absolute right are still in the matter of liability to pay land revenue held under an agreement from the State Government. In the grant in question there is in the first instance an obligation to pay annual rent, if demanded. There is also an obligation to respect the rights of the holders of the lands and of Dewasthans, Dharamdawas and to make allowance to Pals. There is then an obligation not to alter the rights of the holders of land to their prejudice, and the grant of the right to exemption from payment of revenue is made subject to all laws and regulations which are from time to time in force in the Island of Salsette touching the sale and manufacture of spirituous liquors or poisonous or injurious drugs or substances. These are all covenants which raise contractual obligations on the exemption from land revenue, absolute grant of the land notwithstanding. Both the conditions prescribed under the definition, namely, specification in the Schedule and holding under a kowl as defined under the Act were therefore fulfilled, and the villages were at the date of the Act, held under an agreement from the State of Bombay.12. The next question is whether the grant is exempt from the operation of sub-s. (1) of S. 3, under which all lands in an estate are and shall be liable to the payment of land revenue to the State Government. This liability is imposed notwithstanding anything contained in the kowl, or decree or order of a court or any other instrument or any law for the time being in force. Prima facie, the covenants contained in the kowl whereby the grantee was discharged and absolved from liability to pay land revenue must be regarded as superseded by the statutory imposition of liability to pay land revenue. But the operation of sub-s. (1) of S. 3 is subject to the provisions of sub-s. (3). That sub-section states that nothing in subsection (1) shall be deemed to affect the right of any person to hold land in an estate wholly or partially exempt from the payment of land revenue under a special contract, or grant made or recognized by the terms of the kowl in respect of the estate or under a law for the time being in force in favour of any person other than the estate-holder. This clause only protects the rights of a person to hold land in an estate exempt from payment of land revenue, if such exemption is under a special contract or grant made or recognised by the terms of the kowl in respect of the estate or under a law for the time being in force, and a person whose rights are not so affected must be a person other than the estate-holder. By sub-s. (1) therefore exemption granted from payment of land revenue to the grantee of the kowl is extinguished: sub-section (3) however saves the rights of persons other than the estate-holder, who hold land in the estate. By express provision the estate-holder is excluded from the benefit of sub-s. (3). The intention of the Legislature is clear: it is to withdraw the exemption in favour of the estate-holder from payment of land revenue if such right was granted under a kowl. That withdrawal is not to affect the rights of persons holding land in an estate under a special contract, or grant which was made or recognized by the terms of the kowl even if the right was to hold the land exempt from the payment of land revenue. The futility of the argument that the expression "person" when it first occurs in sub-s. (3) includes the estate-holder, becomes obvious if the clause is read after substituting the expression "estate-holder for "person".
### Response:
0
### Explanation:
We are unable to accept this contention. It is true that where property is transferred absolutely by one person to another, it cannot be said that the property transferred is held under an agreement with the transferor merely because of the covenant of title. But when the State transfers property to a citizen, it does not thereby, in the absence of an express provision, grant exemption from liability to pay revenue. The right to recover revenue is not an incident of ownership: it is a prerogative of the sovereign, or a liberty or franchise of some authority claiming derivatively from the sovereign. Mere grant of land by the State does not absolve the grantee from liability to pay revenue. Under the indenture dated September 22, 1847, the grantee was given a right to hold the villages free from liability to pay revenue on certain terms, one of which was to pay rent of Re. 1/- per annum when demanded. The villages were granted subject to the restrictions, in absolute right and freedom from liability to pay revenue in respect of the villages was given subject to certain conditions. Imposition of these conditions subject to which exemption from liability to pay land revenue was granted, and acceptance thereof constituted an agreement within the meaning of S. 2(d). The villages though held in absolute right are still in the matter of liability to pay land revenue held under an agreement from the State Government. In the grant in question there is in the first instance an obligation to pay annual rent, if demanded. There is also an obligation to respect the rights of the holders of the lands and of Dewasthans, Dharamdawas and to make allowance to Pals. There is then an obligation not to alter the rights of the holders of land to their prejudice, and the grant of the right to exemption from payment of revenue is made subject to all laws and regulations which are from time to time in force in the Island of Salsette touching the sale and manufacture of spirituous liquors or poisonous or injurious drugs or substances. These are all covenants which raise contractual obligations on the exemption from land revenue, absolute grant of the land notwithstanding. Both the conditions prescribed under the definition, namely, specification in the Schedule and holding under a kowl as defined under the Act were therefore fulfilled, and the villages were at the date of the Act, held under an agreement from the State of Bombay.12. The next question is whether the grant is exempt from the operation of sub-s. (1) of S. 3, under which all lands in an estate are and shall be liable to the payment of land revenue to the State Government. This liability is imposed notwithstanding anything contained in the kowl, or decree or order of a court or any other instrument or any law for the time being in force. Prima facie, the covenants contained in the kowl whereby the grantee was discharged and absolved from liability to pay land revenue must be regarded as superseded by the statutory imposition of liability to pay land revenue. But the operation of sub-s. (1) of S. 3 is subject to the provisions of sub-s. (3). That sub-section states that nothing in subsection (1) shall be deemed to affect the right of any person to hold land in an estate wholly or partially exempt from the payment of land revenue under a special contract, or grant made or recognized by the terms of the kowl in respect of the estate or under a law for the time being in force in favour of any person other than the estate-holder. This clause only protects the rights of a person to hold land in an estate exempt from payment of land revenue, if such exemption is under a special contract or grant made or recognised by the terms of the kowl in respect of the estate or under a law for the time being in force, and a person whose rights are not so affected must be a person other than the estate-holder. By sub-s. (1) therefore exemption granted from payment of land revenue to the grantee of the kowl is extinguished: sub-section (3) however saves the rights of persons other than the estate-holder, who hold land in the estate. By express provision the estate-holder is excluded from the benefit of sub-s. (3). The intention of the Legislature is clear: it is to withdraw the exemption in favour of the estate-holder from payment of land revenue if such right was granted under a kowl. That withdrawal is not to affect the rights of persons holding land in an estate under a special contract, or grant which was made or recognized by the terms of the kowl even if the right was to hold the land exempt from the payment of land revenue. The futility of the argument that the expression "person" when it first occurs in sub-s. (3) includes the estate-holder, becomes obvious if the clause is read after substituting the expression "estate-holder for "person".
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